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Bengal Electric Lamp Works Ltd. Vs. Sukdev Chandra Sinha - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 274 of 1981
Judge
Reported inAIR1983Cal389
ActsWest Bengal Premises Tenancy Act, 1956 - Section 13 and 13(1); ;Transfer of Property Act, 1882 - Sections 106 and 111
AppellantBengal Electric Lamp Works Ltd.
RespondentSukdev Chandra Sinha
Appellant AdvocateDipankar Ghosh, ;Bhabesh C. Ghose Roy, ;R.M. Chatterjee and ;Sharada Parmar, Advs.
Respondent AdvocateRanjit Banerjee, ;S.N. Banerjee, ;Pravesh C. Sen and ;Hirak Mitter, Advs.
DispositionAppeal dismissed
Cases ReferredBhagabandas Agarwala v. Bhagawandas Kanu
Excerpt:
- c.k. banerji, j.1. this ig an appeal from the judgment and decree dated 11th may. 1981 passed by shri s. n. banerjee, judge. xiii bench of the city civil court at calcutta in the ejectment suit herein instituted by the respondent, the landlord, against the appellant, the tenant, inter alia for the recovery of possession of the furnished ground floor flat no. i at premises no. 11, hungerford street calcutta,2. the case of the landlord is that the appellant was a monthly tenant under him in respect of the said flat at a rent of rupees 900.00 per month according to the english calendar. at the time of the inception of the tenancy the appellant became a tenant for a period of two years only commencing from 1st mar., 1973 till the end of feb., 1975, the terms and conditions whereof were.....
Judgment:

C.K. Banerji, J.

1. This ig an appeal from the judgment and decree dated 11th May. 1981 passed by Shri S. N. Banerjee, Judge. XIII Bench of the City Civil Court at Calcutta in the ejectment suit herein instituted by the respondent, the landlord, against the appellant, the tenant, inter alia for the recovery of possession of the furnished ground floor Flat No. I at premises No. 11, Hungerford Street Calcutta,

2. The case of the landlord is that the appellant was a monthly tenant under him in respect of the said flat at a rent of Rupees 900.00 per month according to the English calendar. At the time of the inception of the tenancy the appellant became a tenant for a period of two years only commencing from 1st Mar., 1973 till the end of Feb., 1975, the terms and conditions whereof were recorded in a letter dated 12th Feb., 1973 written by the appellant to the landlord. At the request of the appellant the period of the said tenancy was extended by the landlord for a further period of two years commencing from 1st March, (975 and ending with the expiry of Feb., 1977 on the same terms and conditions as before which were recorded in a letter dated 1st Feb.. 1975 written by the appellant to the landlord. During the continuance of the said extended tenancy the appellant by a letter dated 3rd Jan., 1977 addressed to the landlord determined the said tenancy and agreed to vacate the demised flat and to make over possession thereof to the landlord with the expiry of the last day of Feb.. 1977, but in spite of such termination, failed and neglected to vacate the demised Hat and continued to be in wrongful occupation and possession thereof from 1st Mac., 1977.

3. The defence of the appellant as made out in the written statement filed by it is taut the appellant is a monthly tenant in respect of the said flat for an indefinite period which has not been determined by the appellant and the appellant still continues to be a monthly tenant under the landlord. The said tenancy commenced from 1st Mar., 1973. Under the dictation of the landlord and simultaneously with the creation of the said tenancy the appellant had to execute two lexers on the same day, dated 12th Feb., 1973 and 3rd Jan.. 1975. Neither any lease was created for two years nor was there any surrender or determination of such lease or monthly tenancy by the said letter dated 3rd Jan., 1975. In the aforesaid manner at the dictation of the landlord and under misconception of law and facts the appellant had to execute two letters dated 1st Feb., 1975 and 3rd Jan., 1977 on the same day. The letter dated 1st Feb., 1975 is Annexure 'B' to the plaint but the letter dated 3rd Jan., 1977 has not been annexed to the plaint although the same is alleged to have been so annexed. The letter dated 1st Feb., 1975 purporting to extend the said monthly tenancy by the landlord is misconceived and at the (no ?) effect inasmuch as the said monthly tenancy commencing from 1st Mar., 1973 for indefinite period is still continuing. A lease for two years could not be created orally or by a mere letter. The letter dated 3rd Jan., 1977 was misconceived and ineffectual as there was DO lease for two years. By the said letter the appellant merely stated that on the expiry of the lease for two years on the 28th February. 1977 the appellant would vacate but inasmuch as there was no lease for two years or any lease, which would expire on 28th Feb., 1977, the question of vacating the said flat on the expiry of any such lease did not arise. The said letter has not determined the said monthly tenancy of the appellant which commenced five years ago on and from 1st Mar., 1973 and has been still continuing. The suit is an maintainable and there is no cause of action for the same.

4. The learned trial Judge raised thefollowing issues :

1. Is the notice to quit valid, legal and sufficient and was it duly served upon the defendant ?

2. Was the tenancy in suit duly determined by the defendant's letter dated 3-1-1977 as alleged ?

3. Is the defendant liable to be evicted ?

4. To what other relief, if any, is the plaintiff entitled

5. In the judgment under appeal the learned trial Judge has rightly deleted the issue No. 1 as having been framed through inadvertence, which is accepted by the learned advocates for the parties appealing before us.

6. Mr. Dipankar Ghose, learned Advocate for the appellant urged that by the letter dated 12th Feb., 1973 being Exhibit 1 at page 1 of Part II of the paper bock, written by the appellant to the landlord at the dictation of the landlord a lease for two years commencing from 1st Mar., 1973 to the 28th Feb., 1975 was sought to be created. On the same day when the said letter was prepared the letter dated 3rd Jan., 1975 being Ext. A/2 at page 8 of Part II of the paper book was also prepared at the dictation of the landlord. By the said letter dated 3rd Jan., 1975 the appellant purported to inform the landlord that the lease for two years which commenced on the 1st Mar., 1973 would expire on the 28th Feb., 1975 and on the said date the appellant would vacate the said flat and would deliver the same to the landlord. A copy of this letter was annexed to the copy cf the plaint served on the appellant along with the writ of summons although there was no mention of this letter in the plaint. The letter of termination of the tenancy by the appellant on which the suit is based and which is alleged to have been annexed to the plaint but was not in fact annexed is a similar letter dated 3rd Jan., 1977 being Exhibit 1 (b) at page 5 of Part II of the paper book which was produced by the respondent subsequently. It is contended by Mr. Ghosh that a set of similar two letters one dated 1st February, 1975 being Exhibit '1 (a)' al page 3 of Part 11 of the paper book and the other dated 3rd Jan., 1977 being Exhibit '1 (b)' at page 5 of Part 1J of the paper book were made out and executed by the appellant at the dictation of the landlord which were disclosed by the landlord in the suit. The evidence given by the witnesses in the Court below was placed before us on behalf of the appellant and it was submitted that the appellant had proved that on the same day in 1973 a set of letter being Exhibit J and Exhibit A/2 dated 12th Feb., 1973 and 3rd Jan., 1975 respectively were made out and executed by the appellant at the dictation of the landlord. Similarly, Exhibit 1 (a) and Exhibit 1 (b) being letter dated 1st Feb., J975 and 3rd Jan., 1977 respectively were prepared and executed by the appellant on the same day at the dictation of the landlord. Thus, the alleged notices dated 3rd Jan., 1975 and 3rd Jan., 1977 purporting to be notices to quit given by the appellant [o the landlord having been given each time along with the creation of the tenancies were bad and were not valid notices to quit given by the tenant to the landlord within the meaning of Section 13 (1) (j) of the West Bengal Premises Tenancy Act, 1956.

7. Mr. Ghosh further urged that there are two letters being letter dated 12th Feb., 1973 and letter dated 1st Feb., 1975 which purport to create two tenancies in favour of the appellant. These two letters have to be construed in interpreting the letter dated 3rd Jan., 1977 which the landlord alleges to be the notice to quit given by the appellant to the landlord. The Court has to decide if the letter dated 3rd Jan., 1977 intended |o determine the relationship of landlord and tenant between the parties. The determination of such relationship had to be by the notice itself. A notice to quit given by the tenant should be plain and unambiguous and without any scope for interpretation and it has to be, in any event, construed in favour of the tenant. Section 13 (1) (j) of the West Bengal Premises Tenancy Act, 1956 provides for a notice to quit to be given by the tenant to the landlord determining the tenancy and not an intention to determine the tenancy. On the principles of interpretation of a notice to quit Mr. Ghosh cited the following decisions :

(I) P. Phipps and Company (Northampton and Towcester Breweries) Ltd. v. Rogers, reported in (1925) I KB 14 where Atkin. L. J. cited with approval the observations of Lord Coleridge C. J. in Gardner v. Ingram, (1889) 61 LT 729 (730) that although no particular form need be followed in a notice to quit, there must be plain unambiguous words claiming to determine the existing tenancy at a certain time. In this case the notice was in these words :

'We do hereby give you notice to quit and deliver up to us (or such other person as we may appoint) on the earliest day your tenancy can legally be terminated by valid notice to quit given to you by us at the date of service hereof the possession of the demised premises'.

8. It was observed by Atkin, L. T. that a tenant receiving such a notice might have toconsult his solicitor, who might have to con-suit counsel, who might have to advise an application to Court for a declaration by action or summons.

9. In our opinion, the notice in the above case was neither plain nor unambiguous nor was there any certainty as to the time when the tenancy was sought to be determined. Unless we come to the conclusion that the notice in the case before us was neither plain nor unambiguous nor was there any certainty as to the date of determination of the tenancy the above decision, in our opinion, would have no application to the case before us.

(2) Mathura Mohan Goswami v. Jyotirmoy Chowtlhury, reported in (1965) 69 Cal WN 568. This is a single Bench decision of this Court. Here the terms of the tenancy were recorded in a letter dated 2nd Dec., 1961 and one of the terms was that the tenant would quietly and peaceably deliver up possession by the 30th November. 1962 with the addition of these words 'it may be noted that no separate notice of vacancy will be given to you and this may be treated as an irrevocable notice of the vacancy'. The learned Judge observed that the idea of the landlord was obviously to bring the tenant within the mischief of Section 13 (1) (j) and (k) of the West Bengal Premises Tenancy Act. 1956 and to deprive him of the statutory protection against eviction. It was further observed that the notice to quit under Clause (j) and the agreement under Clause (k) of the said section was intended to be a notice to quit or an agreement in writing which was genuinely after and bona fide subsequent to the tenancy. As clauses like this deprived the tenant from the statutory protection they must be strictly construed against the landlord and in favour of the tenant.

10. The learned Judge found that the inbuilt notice to quit and the agreement in writing by the tenant with the landlord to deliver vacant possession of the demised premises was neither bona fide nor after the creation of the tenancy.

11. In our opinion, if the facts were such as were found by the learned Judge, then in that case, the notice given by the tenant, no doubt, required to be strictly construed and the clever manoeuvering by the landlord to bring the tenant within the mischief of Section 13 (1) (j) or 13 (1) (k) of the said Act should not be allowed to succeed. No doubt Section 53 of the said Act is for the protection of the tenant against eviction but withgreat respect to the learned Judge, we are unable to subscribe to the wide observation that all such notices given by the tenant to the landlord must be strictly construed against the landlord and in favour of the tenant. If a tenant of his own volition either gives a notice to quit to the landlord or subsequent to the creation of the tenancy enters into an agreement with the landlord in writing to deliver up vacant possession of the demised premises, there is no reason why such a notice or such an agreement should be strictly construed against the landlord and in favour of the tenant.

12. No doubt the notice to quit given by the landlord to the tenant has to be construed in favour of the tenant, even then, it is well settled that such a notice should not be construed in a manner so as to find fault with the same. By a notice to quit the landlord unilaterally determines the tenancy and requires the tenant to vacate and deliver up possession to him, the tenant has no say in the matter. Such notice should therefore be construed strictly and in favour of the tenant. That principle might not be applicable where the notice to quit is given by the tenant. The tenant knowingly that (sic) by determining the tenancy and offering to vacate and make over possession of the demised premises, of his own volition, cannot, in our opinion, at the same time demand that such notice given by him has to be strictly construed in his favour. It is true that Section 13 of the West Bengal Premises Tenancy Act, 1956 is for the protection of the tenant, which, in our opinion, means that unless one of the grounds mentioned in the said section, which would entitle the landlord to obtain an order or decree for recovery of possession is in existence, the landlord cannot ask for possession from the tenant or maintain a suit for recovery of possession but that would not mean that when the tenant himself gives a notice to quit he could claim that such notice should be construed in his favour inasmuch as Section 13 of the said Act is for protection of the tenant.

13. Mr. Ghosh urged that a mere demand for possession by the landlord or offer to deliver possession by the tenant was not a sufficient notice to quit. A notice to quit must evince a clear and unambiguous intention to determine the tenancy or the relationship between the landlord and the tenant. In interpreting the notice to quit, the document should be taken and read as a whole.

14. At this stage it would be convenient to set out the letter dated 3rd Jan., 1977written by the appellant to the landlord which the landlord claims to be the notice to quit in the instant case.

'The Bengal Electric Lamp Works Ltd.,

4. Fairlie Place. Calcutta-700001.

Our Ref : Of S. V. C.

3rd January, 1977.

Mr. S. C. Sinha,

4. Kiron Sunkar Roy Road.

Calcutta.

Ref : Ground Floor Flat

No. 1 of 11, Hunger Ford

Street, Calcutta.

Dear Sir,

We write to inform you that lease of two years for the aforesaid Flat will expire on 28-2-1977 and on the said date we would vacate the aforesaid flat and would deliver the same to you.

Yours faithfully,

For the Bengal Electric Lamp

Works Ltd.,

T. K. Roy (Tapan Kr. Roy)

Managing Director.'

15. Mr. Ghosh urged that the letter dated 3rd Jan., 1977 has two parts. The first part is the determination of the tenancy or the lease by efflux of time. The agreement for tenancy dated 1st February, 1975 was for two years and Clause (4) thereof provided that the flat with all the fittings and fixtures and other articles will be delivered by the tenant to the landlord on the expiry of the tenancy in the same condition as they were now, reasonable wear and tear excepted. Thus the said letter proceeded on the basis that the tenancy was for a limited period of two years which expires on 28th Feb., 1977 and in terms of Clause (4) of the said agreement it was stated that the lease of two years for the aforesaid flat will expire on 28th Feb.. 1977. This was a mere statement in accordance with Clause (4) of the said agreement that the tenancy ends on 28th Feb.. 1977. The second part of the said notice is that on 28th Feb., 1977 when the tenancy would expire the tenant would vacate the flat and would deliver possession to the landlord. It was not a notice to quit dehors the terms of the said tenancy. The notice by itself did not determine the tenancy. It merely quoted one of the terms of the tenancy. The premises on which the said notice proceeded was wrong. Offer to deliver possession was consequential upon determination of the tenancy by effux of time.

16. He urged that by the said tenancy agreement dated 1st Feb., 1975 a tenancy fortwo years was sought to be created which could be done only by a registered instrument. Therefore, the tenancy which was created by the said document was a monthly tenancy which could not determine at the expiry of any period even if the document creating the tenancy contained such stipulation. Thus the entire premises on the basis whereof the notice was given being wrong, the notice was bad and could not operate as valid notice to quit under Section 108 of the Transfer of Property Act. In this context Mr. Ghosh cited the following decisions :

(1) Doe. on the Demise of Godsell v. Inglis, reported in (1810) 128 ER 22. Here the notice was given by the lessor to the lessee to quit the house etc. held by the lessee under the lessor at a time when the lease had already expired. Mansfield, C. J. observed, that the writing was not in the least like a notice to quit, but was a mere demand for possession. The defendant's term having then sometime since expired no notice was at all required to be given.

17. The above case, in our opinion, has no application to the facts and circumstances of this case inasmuch as there the lease having expired no notice to quit was at all necessary. The notice which was given could only be read and understood as a demand for possession and nothing more. There being no subsisting tenancy, there could be no notice to quit terminating any tenancy.

(2) Doe D. Murrell v. Milward reported in (1838) 150 ER 1170. Here a notice to quit was given by the tenants which contained a wrong period as to the expiry of the tenancy and having discovered the error the tenants refused to make over possession. The landlord having accepted tfae notice given by the tenants instituted a suit for recovery of possession. The tenants contested on the ground that the notice to quit was insufficient. The landlord urged that even if the notice was bad as a notice to quit it operated as a surrender, which was rejected by the Court.

18. In our opinion, tins case also has no application to the facts and circumstances of the case before us.

(3) Chez Auguste Ld. v. Cottact, reported in (1951) 1 KB 292. Here the landlord had twice served notice to quit on the tenant on the basis that the tenancy was weekly and each time did not take any further action because of the contention of the tenant that the tenancy was not weekly and the rent reserved was annual rent. Ultimately the landlord instituted a suit against tie tenant forrecovery of possession after serving a fresh notice to quit requiring the tenant to quit and deliver up possession ot the demised premises on Monday, Oct. 3, 1949 or at the expiration of the current period of the tenancy, which shall expire next after the service upon the tenant of that notice. In this suit also the landlord proceeded on the basis that the tenancy of the tenant was weekly. The tenant having contended that the tenancy was a yearly one, the suit was not proceeded with by the landlord. Subsequently on the same notice the landlord brought another and on the basis of yearly tenancy claiming that the said notice determined such yearly tenancy. Lord Goodard C. J. observed that the notice to quit was clearly given to determine a weekly tenancy. A notice to quit is given at the risk of him who gives it; it should not be ambiguous; it must tell the tenant what is required of him. His Lordship further observed that it was not possible to construe the notice to quit as apt to put an end to a yearly tenancy more especially as the earlier suit instituted on the game notice was framed on the basis that the tenancy was weekly. The landlord after discontinuing the earlier suit could not say in the present suit that the said notice was a good notice to quit at the end of a year.

19. The above decision also, in our opinion, is of no assistance to the appellant.

20. 11 was next contended by Mr. Ghosh that a demand for possession by the landlord or an offer to deliver possession by the tenant on a particular date did not per se amount to determination of the tenancy. A demand for possession by the landlord or an offer to deliver possession by the tenant was a consequential right of the landlord and an obligation on the part of the tenant arising out of determination of the tenancy. Thus the notice must first determine the tenancy and thereafter, if it was given by the landlord, he could claim delivery of possession and if it was given by the tenant he might offer to deliver possession. In support of his contention Mr. Ghosh cited a Full Bench decision of the Allahabad High Court in Bradley v. Alkinson, reported in (1885) ILR 7 All 899, where the notice given by the landlord was that if the tenant did (not?) vacate within a month of receipt of the notice the landlord would institute a suit against the tenant for ejectment and arrears of rent. The Full Bench held that the said notice was not a notice to quit inasmuch as the same did not contain any intention of the landlord to determine the tenancy.

21. The next decision on this point relied on by Mr. Ghosh was another decision of the Allahabad High Court in Ahmed Ali v. Mohd. Jamal Uddin, reported in : AIR1963All581 . Here the notice was in the words following (at p. 582) :

'Since my client does not wish to keep you a tenant your tenancy is terminated and you are hereby asked to vacate the premises in your occupation on the 30th day after the receipt of this notice failing which legal action shall be taken against you for the costs of which you shall be held responsible.'

22. It was urged on behalf of the tenant that the notice was bad inasmuch as it sought to terminate the tenancy on the date on which the notice was given. The Division Bench did not accept such contention and construed the notice as meaning that the tenancy was terminated after the expiry of 30 days from the receipt of the notice which was made clear by the addition of the words that the tenant should vacate the accommodation on the 30th day after the receipt of the notice. It was also observed that undoubtedly there was a distinction between terminating the tenancy at once and calling upon the tenant to deliver possession after 30 days and terminating tenancy after 30 days. In the former case the relationship of landlord and tenant came to an end at once and the tenant was given a right to remain in possession for 30 days either as a licencee or as a tenant on sufferance, while in the latter case he remained a tenant for 30 days. It was clear from the notice that the landlord neither terminated the tenancy on the date on which the notice was given nor did he give a right to remain in possession for 30 days as his licencee or tenant oa sufferance after the termination of the tenancy. He meant to retain him as his tenant for 30 days.

23. This case also, in our opinion, has no application to the case before us.

24. Bradley's case (1885 ILR 7 All 899) (FB) (supra) was a suit by the landlord against the tenant on the basis of a notice by the landlord to the tenant wherein he merely informed the tenant that if he did not vacate within a certain time a suit for ejectment would be filed against him. On these facts the Court held that there was no termination of the tenancy by the landlord. In the case before us however, the notice in question is not by the landlord but by the tenant offering to vacate the flat and to deliver possession. Such a notice, in our opinion, cannot fee construed to mean that thetenant would keep the tenancy continuing and incur liability for rent and other charges to the landlord although he would vacate the fiat and deliver up possession to the landlord. If a tenantvacates the demised premises and delivers possession thereof to the landlord, in our opinion, he thereby automatically determines the tenancy and a notice so to do by the tenant also terminates the tenancy inasmuch as he thereby gives notice to quit in accordance with Section 111(h) of the T. P. Act.

25. It was next urged by Mr. Ghosh that assuming but not admitting that the letter dated 3rd Jan., 1977 being Exhibit 1 (b) was a valid notice to quit even then the tenancy which was sought to be determined 'thereby was a lease for two years expiring on 28th Feb., 1977 but as there was no such lease in existence inasmuch as no lease for two years could be created by an unregistered document, therefore, the said notice sought to terminate a non-existent tenancy, and was therefore of no effect. In support of his contention Mr. Ghosh relied on :

(1) Parekh Brothers v. Kartick Chandra Saha, reported in : AIR1968Cal532 . Here the notice to quit was given on behalf of three persons as the landlords. The Court, found that only one of those three persons was the landlord. It was therefore held that inasmuch as there was no tenancy as mentioned in the notice to quit it could not terminate the tenancy which in fact existed, being a tenancy different from that mentioned in the notice and unless all the three persons on whose behalf the notice had been given were the landlords, the tenant could not in law be called upon to comply with such notice and therefore the notice was invalid. The names of the other two persons who were not the landlords could not be treated as mere superfluity and the doctrine of false demonstration which is commonly described as the 'blue pencil theory' could not be applied here to strike out the names of the other two persons who were not the landlords. The Court could not ignore the plain meaning of the document and strike out a few words therefrom to make it conform to tile actual facts of the case.

(2) Dilip Kumar Singha v. Abodh Gopal Ghosh, reported in : AIR1973Cal473 . Here the landlord served a notice to quit dated 17th Nov., 1962 on the tenant calling upon him to vacate the demised premises. After receipt of the saidnotice, the tenant promised to vacate the demised premises and by a notice dated 30th June, 1963 stated that he would vacate the said premises on 31st July, 1963. He again gave another notice informing the landlord that he would vacate on 31st July, 1963 and would deliver vacant possession to the landlord or his representative. The tenant having failed to vacate, the landlord served a notice on him on the 9th August, 1963 asking him to vacate within three days from the receipt of the said notice and thereafter on the failure of the tenant to vacate, instituted a suit for ejectment and recovery of possession of the demised property, it was urged on behalf of the tenant that a notice to quit under Section 13 (1) (j) of the West Bengal Premises Tenancy Act, 1956 could be given by the tenant only during the continuance of the tenancy. The tenancy having been determined by the landlord by a notice to quit no tenancy was in existence and as such there was no tenancy which could be determined by the tenant by a notice to quit. On behalf of the landlord it was urged that after termination of the tenancy by the notice served by the landlord, the tenant continued in possession as a statutory tenant and such statutory tenancy was determined by the tenant by the notice to quit. The learned Judge considered the definition of tenant in Section 2 (h) and the provisions of Section 13 (1) (j) of the said Act and held that the notice to quit served by the landlord determined the contractual tenancy and possession thereafter by the tenant was not on the basis of contract but under the provisions of the statute which is known as statutory tenancy, the incidents whereof were governed by the statute. The incidents of such tenancy as in the case of a contractual tenancy and such statutory tenancy would continue until a decree or order for eviction was made by a Court of competent jurisdiction, on the basis of the determination of the contractual tenancy. The incidents of contractual tenancy could not be extended to a statutory tenancy. Thus if the contractual tenancy became non-existent by service of a notice to quit by the landlord, there could not be termination of a tenancy which did not exist. A notice to quit by the tenant under Section 13 (1) (j) of the said Act could only terminate a contractual tenancy and not the statutory tenancy.

26. In our opinion, the propositions laid down in the above decision have no application to the facts and circumstances of the case before us.

27. Mr. Ghosh commented that the respondent called no other witnesses except himself. His evidence was scrappy and he in fact proved nothing. He did not depose as to the facts and circumstances how he came to receive the purported notice to quit from the appellant. He prevaricated as to receipt of the original of Exhibit A/2 being a similar notice as Ext. 1 (b) but dated 3rd Jan., 1975. The learned trial Judge was wrong in relying on or accepting his evidence.

28. Mr. Ranjit Banerjee, learned advocate, for the respondent commented that the order for discovery was made in the suit by the trial Court on the 3rd Sept., 1978. The appellant took several extensions of time to file its affidavit of documents and ultimately on the 13th Jan., 1979 it filed its affidavit of documents stating that documents in its custody and possession were 'nil'. Exhibit A, Exhibit A/2 and Exhibit A/3, were disclosed by the appellant on the 10th Jan., 1980 in course of the hearing of the suit. It was submitted that Ext. A/2 has been subsequently manufactured taking inspiration from the service copy of Annexure 'C' to the plaint which contained a mistake that the year 1977 was wrongly typed as 1975. The copy annexed to the plaint riled in the Court had been corrected before the tiling of the plaint but the copy annexed to the copy of the plaint submitted to Court for service on the defendant was inadvertently not corrected. It was also sub-mitted that the alleged endorsement in Exhibit 'A' being Exhibit A/1 and the alleged endorsement in Exhibit A/3 being A/4 were made recently and not in 1975 as they put-port to show and a bare look at the said endorsements would clearly show that the same could not have been five years' old when they were produced before the Court.

29. Mr. Banerjee contended that the evidence of Sailendra Nath Dey who is said to have handed over Exts. 1 (a) and 1 (h) to the respondent is specific on the point that the said two letters were signed by Tapan Kumar Roy two/three days after Sailendra had negotiations with the respondent for the extension of the tenancy. Sailendra went to the respondent in the first week of February, 1975 and asked for renewal of the tenancy when the respondent told him that the tenancy would be further extended on the same terms and conditions when it was first created in 1973. It is not the evidence of Sailendra that he saw the respondent on the 1st Feb., 1975 and on the same day the Ex-hibits 1 (a) and 1 (b) were drafted and typed out and signed by Tapan Kumar Roy. Even assuming that Sailendra saw the respondent and negotiated renewal of the tenancy on the 1st Feb., 1975 then also Exts. 1 (a) and (b). according to Saiiendra, were signed by Tapan Kumar Roy earliest by the 3rd or 4th Feb., 1975, i.e., two/three days after the negotiation for extension. Therefore the entire evidence led on behalf of the appellant as to preparation, typing and signing of exhibits 1 (a) and 1 (b) are thoroughly unreliable and should be rejected by us. Exhibits 1 (a) and 1 (b) could not have been signed on the 1st Feb., 1975. The story that in 1973 and again in 1975 similar set of letters, one recording the terms of the tenancy and the other giving notice to quit on the same day and at the same time has not at all been established by the appellant. The inspiration for setting up such defence was from a bona fide mistake which occurred in typing out Ext. 1 (b) being Annexure 'C' to the plaint wherein the years in the said letter had been typed out by mistake as 1975. This inspired the appellant to build up the story that two sets of similar letters one creating the tenancy and the other determining the tenancy were signed on behalf of the appellant in 1973 and in 1975. Mr. Banerjee further urged that the preamble in Exhibit 1 (b) that the lease for two years would expire on 28-2-1977 was of no consequence. Whether that statement was correct or wrong, was of little value. All that mattered was that, did the appellant make an unequivocal statement in the said letter to deliver possession of the demised fiat or in other words to quit the demised flat? The plain and unequivocal statement that was made by the appellant in Ext. 1 (b) was that on the 28th Feb., 1977 they would vacate the flat and would deliver the same to the respondent. The said letter did not state that as the lease for two years would expire on 28-2-1975 or in view of the matter, the appellant would vacate the flat, which might be construed that because of termination of the lease by efflux of time possession was offered to be delivered by the appellant but that is not the wording of the letter. The first part of the letter contains a bare statement that the lease would expire on 28-2-1977 and the second part of the letter says that on the same date i.e., on 28-2-1977 The appellant would vacate and deliver the flat to the respondent. The unequivocal statement contained in the said letter was clearly a notice to quit given by the tenant withinthe meaning of Section 13 (1) (j) of the West Bengal Premises Tenancy Act, 1956.

30. If was next contended by Mr. Banerjee that a notice to quit determining the lease or tenancy was not contemplated by Section 106 of the T. P. Act. That section only provided for the period of such notice which had to be given depending on the nature of the tenancy. The section also provided for the manner in which such notice should be given. The provision for determining a tenancy or a lease by a notice is contained in Section 111(h) of the T. P. Act which provides that a lease of immovable property determines on the expiration of a notice to determine the lease or to quit or the intention to quit the property leased out duly given by one party to the other. The period and how it is to be duly given is provided in Section 106. Section 106 and Section 111(h) have to be read together. In this context Mr. Banerjee also referred to the meaning of the expression 'quit' as given in Stroud's Judicial Dictionary, 4th Edn., Vol. 4, which says 'to quit' means 'to leave permanently'. Mr. Banerjee relied on the case of Harihar Banerji v. Ramshashi Roy, reported in (1918) 45 Ind App 222 : (AIR 1918 PC 102) for the observations of the Judicial Committee as to how a notice to quit is to be construed. It was observed by the Judicial Committee :

'*** ** that notices to quit, though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law; that the test of their , sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer, but what they would mean to tenants, presumably conversant with all these facts and circumstances; and, further, that they are to be construed, not with a desire to find faults in them which would render them defective, but to be construed ut res magis valeat quam pereat'

31. Mr. Banerjee also relied on a decision of the Supreme Court in Bhagabandas Agarwalla v. Bhagwandas Kanu, reported in : [1977]3SCR75 . Here the notice to quit required the tenant to vacate the premises within the month of October, 1962 otherwise he would be treated as trespasser from 1st Nov., 1962 in respect of the demised premises. The Supreme Court held that what was meant by these words was that the tenant could vacate at any time within the month of October, 1962 but not later than the expiration of that month. The last moment up to which the tenant could, ac-cording to the notice to quit, lawfully continue to remain in possession of the premises was the midnight of 3lst Oct., 1962 but not beyond that. This position would seem to follow logically and incontestable as a matter of plain natural construction, from the use of the words 'within the month of October, 1962' without anything more, but here it was placed beyond doubt or controversy by the notice to quit proceeding to add that otherwise the tenants would be treated as trespassers from 1st Nov.. 1962. This made the intention of the authors of the notice clear that they are terminating the tenancy only with effect from the end of the month of October, 1962 and not with effect from any earlier point of time during the currency of that month. The Supreme Court also observed that it was settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magis valeat quam pereat. The validity of a notice to quit ought not to turn on the splitting of a straw. It must not be read in a hypercritical manner, nor must its interpretation be affected by pedagogic pendantism or overrefined subtlety, but it must be construed in a common sense way. The Supreme Court quoted with approval the observations of the Judicial - Committee in Harihar Banerjee v. Ramsashj Roy (supra).

32. The next case relied on by Mr. Banerjee was a Single Bench decision of this Court in Mira Sen v. Dipak Kumar Ghosh, reported in (1978) 82 Cal WN 177. Here the tenant in sending rent for December, 1968 by Money Order stated in the coupon that he would vacate the suit premises within eight months. That notice was accepted by the landlord who subsequently wrote a registered letter to the tenant to ascertain on what date he would vacate so that the landlord could make arrangement. No reply was given to this letter by the tenant, although received. The landlord brought a suit for eviction of the tenant on the basis of the said notice. It was held that the statement made in the money order coupon amounted to a valid notice to quit which determined the tenancy.

33. The next case relied on by Mr. Banerjee was a decision of the Supreme Court in Calcutta Credit Corporation Ltd v. Happy Homes (Private) Ltd., reported in : [1968]2SCR20 . Here the tenant served a notice on the landlord intimating their intention to vacate the premises on 31st August,1953 and requested the landlord to arrange to take delivery of possession. Subsequently by another letter the tenant informed the landlord that they did not intend to vacate the premises on the 31st August, 1953 as originally intimated or at all and the earlier notice he treated as cancelled. The landlord through its attorney informed the tenant that the earlier notice could not be withdrawn except by mutual consent and declined to give his consent and insisted upon the tenant to vacate the premises as notified. The Supreme Court observed That the notice which was defective might still determine the tenancy if it was accepted by the landlord. A notice which complied with the requirements of Section 106 of the T. P. Act operated to terminate the tenancy, whether or not the party served with the notice assented thereto. A notice which did not comply with the requirements of Section 106 of the T. P. Act in that it did not expire with the end of the month of the tenancy, or the end of the year of the tenancy as the case may be, or of which the duration is shorter than the duration contemplated by Section 106, might still he accept-ed by the party served with the notice and if that party accepted and acted upon it, the party serving the notice would be estopped from denying its validity. It was also observed by the Supreme Court that a tenancy was determined by service of the notice in the manner prescribed by Section 111(h) read with Section 106 of the T. P. Act. If the notice was duly given- the tenancy stood determined on the expiry of the period of the tenancy.

34. It was lastly contended by Mr. Banerjee that by the amendment of the written statement the appellant sought to make out a completely new case contrary to the case made out originally in its written statement. The learned Judge of the Court below, according to Mr. Banerjee, was right in disallowing the amendment. No grounds had been made out by the appellant for such amendment being allowed. Mr. Banerjee urged that even if the amendments were allowed it would not have improved the case of the appellant.

35. It is not necessary for us to go into the question whether the amendment should have been allowed or was rightly rejected by the learned trial Judge.

36. It is necessary to discuss and scan the evidence given by the several witnesses in the Court below in a little detail.

37. The respondent-landlord gave evidence himself and called no other witness. The appellant called as many as five witnesses.

38. The respondent in his evidence in ex-amination-in-chief deposed in support of the case made out by him in the plaint and denied that Exhibits 1 or 1 (a) or 1 (b) were written by the appellant at his dictation. No questions were put to the respondent in cross-examination that Exts. 1 and A/2, or Exts. 1 (a) and 1 (b) were prepared on the same day, or that Ext. A/2 was written by the appellant at his dictation. He also denied that save and except the letter dated 12-2-1973 being Exhibit 1 the appellant signed any other document on the said date. In his cross-examination he however stated that he could not say if he received any notice dated 3-1-75 that is, Exhibit A/2, and denied that he tried to suppress any suck notice.

39. We do not find any prevarication in the evidence of the respondent. He had suiticiently proved his case. His evidence could not be shaken in cross-examination.

40. The first witness called by the appellant was Sailendra Nath Dey, the Chief Engineer. Plant and Machinery of the Jadav-pur factory of the appellant at the relevant time. He stated in his examination-in-chief that he had nothing to do with the creation of the tenancy in 1973. He further stated that A. K. Ghose, since deceased the Controller of Accounts of the appellant told him in January, 1975 to go to the respondent as the lease was going to expire. In the first week of February, 1975 he went to the respondent and asked for renewal of the tenancy when the respondent told him that the tenancy would be extended on the same terms and conditions when the tenancy was created in 1973. He reported the matter to A. K. Ghose and Tapan Roy, the Managing Director of the appellant. Mr. Ghose hand-ed over to him two letters signed by Tapaa Kumar Roy, one of which was for renewal of the tenancy and the other was for determination of the tenancy on the expiry of February, 1977. The said two letters were drafted by A. K. Ghose, Sailendra gave the said two letters to the respondent, they are Exhibits 1 fa) and 1 (b). In his cross-examination Sailendra however, said that Tapan Roy asked him to negotiate the extension of the tenancy and that Tapan Roy read Exhibits 1 (a) and 1 (b) and then signed them. He further deposed that he met the respondent in his office three/four times but could not remember on which floor the office was situate. His further evidence was that TapanRoy signed Exts. 1 (a) and 1 (b) on the 1st Feb., 1975 and they were signed by Tapan Roy 2/3 days after the negotiation for extension. We and that Sailendra Nath Dey has contradicted his evidence in examination-in-chief at every stage in his cross-examination.

41. The next witnesses on behalf of the appellant Subodh Chantlra Mukherjee, the Secretary of the appellant who on the 10th March, 1980 stated in his examination-in-chief that he did not remember if Exhibits 1 (a) and 1 (b) were signed by Tapan Roy in his presence, but in his cross-examination on 12th March, 1980, he however, stated that the Managing Director, that is, Tapan Roy signed the said letters in his presence and also in the presence of S. N. Dey, while S. N. Dey not only did not mention the presence of Subodh Mukherjee but on the contrary stated that as Subodh Mukherjee was sick in February, 1975 so he was deputed to negotiate extension of the tenancy. According to Subodh Mukherjee, S. N. Dey drafted Exhibit 1 (b) while according to S. N. Dey, if was drafted by A. K. Ghose. About Exhibits 1 (a) and I (b) being signed at the dictation of the respondent the evidence of Subodh Mukherjee is wholly hearsay, and therefore unacceptable. Thus it is clear that the evidence of S. N. Dey and Subodh Mukherjee are contradictory to each other.

42. With regard to the case of the appellant that Exhibit 1 and Exhibit A/2 were typed and signed on the same day, that is, on 12th Feb., 1973 Subodh Mukherjee in his evidence stated that A. K. Ghose, since deceased, negotiated the tenancy and prepared the draft of the said documents.

43. Muni Krishnan the Secretary to Tapan Roy the Managing Director of the appellant, deposed that he typed Exhibit A/2 and Exhibit 1 on the same day. Muni Krishnan further stated that he also typed Exhibits 1 (a) and 1 (b) on the same day and it struck him when he typed on the same day one letter dated 1-2-75 and the other post dated 3-1-77 and he having asked for clarification from A. K. Ghose, the reply was that it was necessary. If in fact he had typed Exhibits 1 and A/2 on the same day the same question which struck him in typing Exhibits 1 (a) and 1 (b) ought to have struck him when he typed Exhibits 1 and A/2 on the same day but nothing appears to have struck him then. His evidence as to keeping of extra copies of letters is also wholly unacceptable. Muni Krishnan handed over Exhibit A/2 to H. P. Dutfa who was notcalled to give evidence. Tapan Roy ir. his evidence also repeated that he signed Ext. I and Ext. A/2 on the 12th Feb., 1973 and Exhibits 1 (a) and 1 (b) on the 1st Feb., 1975. According to him, Mr. L. N. Thakur and Mr. A. K. Ghose, since deceased, negotiated the tenancy in 1973 with the landlord on his behalf. A. K. Ghose is dead so he could not be called to give evidence. L. N. Thakur is, however, alive but he was not called to give evidence. The entire evidence on the preparation of Ext. 1 and Ext. A/2 as well as Exts. 1 (a) and 1 (b) is based on hearsay. Everything was done by A. K. Ghose who is dead. Various statements said to have been made to the several witnesses by A. K. Ghose were sought to be deposed by them. Subodh Mukherjee in his evidence first stated that A. K. Ghose drew the terms of the lease, that is, Exhibit I but subsequently said that A. K. Ghose told him that the terms of the lease were suggested by the landlord and he did not know who drafted the terms of the lease. Subodh Mukherjee also stated in his evidence that he heard from A. K. Ghose that Exts. 1 (a) and 1 (b) were prepared at the dictation of the respondent. But the Managing Director Tapan Roy in his evidence stated that he never saw the landlord nor did he ever talk to him and he was induced by A. K. Ghose and L. N. Thakur to sign the lease document being Exhibit 1 as well as the post dated release letter being Exhibit A/2 although he knew the same to be illegal. According to Tapan Roy the landlord gave him the terms of the lease through L. N. Thakur and A. K. Ghose and the draft of the release letter through L. N. Thakur but neither Thakur was called to give evidence nor the drafts said to have been given by the landlord were disclosed. Again, in the matter of signing of Ext. 1 (b) Tapan Roy stated that he did not want to sign it as it was illegal but after good deal of pursuasion by L. N, Thakur he signed the same. He also staled that he signed Exhibit 1 (b) as otherwise the landlord would not renew the lease which was known to L. N. Thakur. S. N. Dey and Subodh Mukherjee, As already observed, L. N. Thakur was not called, while S. N. Dey and Subodh Mukherjee did not say in their evidence that unless Exhibit 1 (b) was signed by Tapan Roy, the lease would not be renewed by the landlord. No such question was also put to the respondent in cross-examination. It will appear from the evidence of R. K. Chowdhury the Law Officer of the appellant that the appellant had solicitors but curiously enough, in the matter ofpreparation and execution of Exts. 1, A/2, 1 (a) and 1 (b), the legal advisors were A. K. Ghose and Subodh Mukherjee and not even the Law Officer who was in the service of the appellant in 1975. Nevertheless Tapan Roy signed Exhibits A/2 and 1 (b) knowing them to be illegal without even consulting the Solicitors. On the above state of evidence given by the witnesses called by the appellant we are unable to rely thereon and to accept the same.

44. We are not concerned in this case as to whether Exhibit A/2 was prepared, and executed by the appellant on the same day along with the Ext. I, the case sought to be made out by the appellant. It may not be necessary for us to consider as to whether Exhibit A/2 was in existence on the same day as Exhibit 1 or on the 3rd Jan., 1975, the date it bears or it was subsequently brought into existence by the appellant in support of its case and defence made out by it in its written statement, and sought to be established at the trial of the suit.

45. Exhibits 1 (a) and I (b) are the only two documents with which we are concerned in this case. We may, however, note in this connection that Exhibit A/2 which is a carbon copy of the original is on the letter head of the appellant while Exhibit A/3 which is said to be an office copy of Exhibit 1 (b) in his evidence by Muni Krishnan and a carbon copy of the original, is not on the letter head of the appellant but in a very thin paper. Exhibit A/3 contains an endorsement which R. K. Chowdhury stated in his evidence to have been made by him. The said endorsement records that it was received from A. K.. Chose on 12-2-1975 and copy thereof was supplied to Mr. P. K. Banerjee on 9-2-1975 for record. P. K. Banerjee was not called to give evidence. Except that he made the endorsement, R. K. Chowdhury did not remember anything and before he came to give evidence he saw Subodh Mukherjee who told him about the endorsement on Exhibit A/3. This is the nature of evidence with regard to Exhibit A/3 and the endorsement therein which is scarcely acceptable and this is more so when there is no such endorsement on Exhibit A/2, a very similar letter dated 3rd Jan.. 1975 which is said to have been made out, signed and delivered to the respondent on the same day as Exhibit 1. Apart from those we have noted and discussed, there are various other discrepancies, contradictions and improbabilities in the evidence of the witnesses if the appellant, which it is not necessary to dilate upon.

46. From the evidence as discussed above it is clear that if the negotiation for extension of the tenancy in 1975 was carried on by S. N. Dey in the first week of February 1975, the earliest day in the first week of February is the 1st Feb., 1975. Assuming that Exhibits 1 (a) and 1 (b) were typed on the same day, that is. 1st Feb., 1975 as deposed by Muni Krishnan, even then the story of their having been signed by Tapan Roy on 1st Feb., 1975 cannot be accepted. Firstly, because according to S. N. Dey they were signed by Tapan Roy two/three days after the negotiation for extension of the tenancy which would take us to 3rd or 4th Feb., 1975. Secondly. S. N. Dey went to the respondent three/four times in Feb., 1975 and his only purpose of going to him was to negotiate the renewal or extension of the tenancy and after delivery of Exhibits 1 (a) and 1 (b) to the respondent he did not see him any more. Therefore, even if we take his first visit to the respondent in the 1st week of February as on the 1st Feb., 1975 and also that he had to see the respondent three/four times in February 1975 with regard to extension or renewal of the tenancy, then Exhibits 1 (a) and 1 (b) could not have been typed by Muni Krishnan on the 1st Feb.. 1975 and they could not have been signed by Tapan Roy on that day. The evidence of the several other witnesses of the appellant which we have discussed above also support our above conclusion, that Exts. 1 (a) and 1 (b) were neither typed nor signed nor delivered to the respondent on the same day. We have therefore to accept the position which is manifest from the documents themselves that Ext. 1 (a) was typed out and was signed by Tapan Roy and was made over to the respondent sometime in Feb.. 1975 although it bears the date 1st Feb.. 1975 and Ext. 1 (b) was typed out and signed by Tapan Roy and made over to the respondent on or about 3rd Jan.. 1977, the date it bears.

47. As a lease or tenancy from year to year or for a term exceeding one year could be created only by a registered instrument and there being no registered instrument in this case, the tenancy herein of the appellant was therefore an ordinary monthly tenancy and was therefore terminable by 15 days' notice in writing expiring with end of a month of the tenancy.

48. As observed by the Judicial Committee in Harihar Banerjee's case (AIR 1918 PC 102) (supra) and by the Supreme Court in Bhagabandas Agarwala v. Bhagawandas Kanu : [1977]3SCR75 (supra) a noticeto quit must be construed not with a desire to find fault in it which would render it defective, but it must be construed ut res magis valeat quam pereat. (That an act may avail, rather than perish). Its validity ought not to turn on the splitting of a straw nor should it be read in a hyper-critical manner nor its interpretation should be affected by pedagogic pendantism or over-refined subtlety. It must be construed in a common sense way. Considering Exhibit 1 (b) in the light of the above observations, we must hold that Exhibit 1 (b) was a good and valid notice to quit given by the appellant to the respondent expiring with the end of a month of its tenancy in accordance with the provisions of Section 106 read with Section 111(h) of the Transfer of Property Act and Section 13 (1) (j) of the West Bengal Premises Tenancy Act, 1956. Whether the tenancy created in 1973 continued or there was a fresh tenancy from March 1975 is, in our opinion, wholly immaterial. By Exhibit 1 (b) the appellant determined its tenancy and gave notice to quit on the expiry of Feb., 1977 unequivocally and in no uncertain terms, be the same, tenancy created in 1973 which continued or be the same, a fresh tenancy from Mar., 1975. Further the said notice having been accepted by the respondent landlord which is manifest from the respondent having instituted the suit herein on the basis of the said notice, the appellant was bound to vacate the demised flat and make over possession thereof to the respondent landlord.

49. For all the above reasons the appellant cannot succeed in this appeal. The appeal therefore must be and is hereby dismissed with costs. All interim orders are vacated.

50. The oral prayer for stay of operation of this order is rejected.

51. Let the records go down to the Court below as early as possible.

S.C. Deb, C.J.

52. I agree.


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