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Rolls Print and Company (Pvt.) Ltd. Vs. B.M. Singh and Son - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberF.A. No. 3 of 1968
Judge
Reported inAIR1977Cal303
ActsCode of Civil Procedure (CPC) , 1908 - Section 11 - Order 41, Rule 1; ;West Bengal Premises Tenancy Act, 1956 - Section 13(1) and 13(3A); ;West Bengal Premises Tenancy (Amendment) Act, 1969; ;Transfer of Property Act, 1882 - Section 106
AppellantRolls Print and Company (Pvt.) Ltd.
RespondentB.M. Singh and Son
Appellant AdvocateB.C. Dutt and ;Ambica Charan Bhattacharjee, Advs.
Respondent AdvocateN.C. Chakraborty, ;Dhruba Kumar Mukherjee and ;Sudipto Moitra, Advs.
DispositionAppeal dismissed
Cases ReferredS. H. Sugar Mills v. Union of India
Excerpt:
- r. bhattacharya, j. 1. this appeal arises out of the decree passed by the city civil court, calcutta in ejectment suit no. 1661 of 1965 in favour of the plaintiff b. m. singh & son, a firm registered under the indian partnership act having its office at no. 1, crooked lane, calcutta (hereinafter referred to as the firm). the defendant is rolls print co.(p.) ltd., a limited company under the companies act (hereinafter described as the company). the plaintiff is the owner of the premises no. 1. crooked lane, calcutta of which the suit premises we are concerned with is a part.2. the plaintiff filed several suits against different tenants occupying the premises no. 1, crooked lane. calcutta. with regard to the present suit the plaintiff's allegation is that the defendant was a monthly tenant.....
Judgment:

R. Bhattacharya, J.

1. This appeal arises out of the decree passed by the City Civil Court, Calcutta in Ejectment Suit No. 1661 of 1965 in favour of the plaintiff B. M. Singh & Son, a firm registered under the Indian Partnership Act having its office at No. 1, Crooked Lane, Calcutta (hereinafter referred to as the firm). The defendant is Rolls Print Co.(P.) Ltd., a limited company under the Companies Act (hereinafter described as the Company). The plaintiff is the owner of the premises No. 1. Crooked Lane, Calcutta of which the suit premises we are concerned with is a part.

2. The plaintiff filed several suits against different tenants occupying the premises No. 1, Crooked Lane. Calcutta. With regard to the present suit the plaintiff's allegation is that the defendant was a monthly tenant under the firm in respect of the suit premises at a rental of Rs. 102/- payable according to English Calendar month. The plaintiff, according to the allegation made in the plaint, requires the premises for the purpose of building and rebuilding, for use and occupation and also for accommodation of its business. The plaintiff determined the tenancy by a notice calling upon the defendant to vacate the suit premises on the expiry of the last day of July, 1965. In spite of the notice duly served upon the defendant, it did not comply with the same and hence the present suit was filed.

3. The defendant filed a written statement. It was alleged that the suit was hit by Section 69 of the Indian Partnership Act, that the notice to quit was illegal, insufficient and void, that the plaintiff did not require the suit premises for building or rebuilding purposes or for their own requirement and occupation as alleged, that the plaintiff's accommodation at its disposal was more than sufficient and that the defendant had their machineries installed in the suit premises and had been running manufacturing business there.

4. The learned court below tried several suits against different tenants in respect of the premises No. 1, Crooked Lane, Calcutta analogously. Different issues were framed in different suits. Coming to our suit we find that the learned trial court found that the plaintiff required the suit premises reasonably for building and rebuilding purposes as alleged in the plaint and for its own use and occupation. It was also held that the suit was not hit by provision of Section 69 of the Indian Partnership Act. It was further held that the notice to quit duly served upon the defendant was legal and sufficient. On these findings a decree was passed.

5. We have heard Mr. B. C. Dutt, the learned Advocate appearing on behalf of the defendant-appellant and Mr. Nani Coomar Chakraborty for the plaintiff-respondent.

6. Mr. Dutt advanced before us several contentions in support of the appealto attack the findings of the trial court on the question of the plaintiff's reasonable requirement for building and rebuilding of the suit premises and for its own occupation. Mr. Dutt's contention is that the learned court below failed to appreciate the evidence on record and that the further evidence that has been adduced in this appeal in connexion with additional issues framed on the basis of the decision of B. Banerji's case : [1975]2SCR774 by the Supreme Court goes against the plaintiff on the question whether the plaintiff has any other reasonable and suitable accommodation and disproves the case of the plaintiff. It may be stated that in this appeal the respondent-plaintiff filed an application for amendment of the plaint in view of the decision given in B. Banerji's case by the Supreme Court. Additional written statement was put in and additional issues were framed to ascertain in addition whether the plaintiff has any other accommodation besides the suit premises for the requirement of the plaintiff and if there can be building and rebuilding without evicting the defendant. Another issue was framed to see if the suit was hit by Sub-section (3-A) of Section 13 of the West Bengal Premises Tenancy Act. Witnesses were examined of both the parties on this additional issue. Several witnesses were examined in the trial court both by the plaintiff and the defendant. P. W. 1 was a Control Clerk of First National City Bank, Calcutta. He has proved certificates of fund lying to the credit of Bhubaneswar Singh, Jagadishwar Singh. Benay Krishna Singh and Nageswar Singh in the Bank. P. W. 2 is an Assistant in the City Architect's Office of the Corporation of Calcutta. He has proved the sanctioned plan obtained by the plaintiff for the purpose of building in the suit premises. This has been marked Ext. 6. This witness was not cross-examined by the defendant in Suit No. 1661. This witness has also proved Ext. 6 (a) a plan of existing construction and basements and the said plan was also sanctioned. P. W. 3 is a Consulting Engineer and an Architect and Valuer. He is in the A. list of the Panel of Valuers of the Calcutta High Court. He prepared the plan and estimate for the building appearing in Ext. 6. He has also proved the estimate for the building marked Ext. 7. He also subsequently prepared a revised estimate which has been marked Ext. 7 (a). This was on the basis of the sanctioned plan. From this witness we get that the present building would be over50-60 years old and that he prepared the plan according to the requirement of the plaintiff. P. W. 4 is a clerk of a Barrister who was once appointed Receiver in respect of the suit premises along with other properties. This witness did not give any evidence regarding requirement of the plaintiff. P. W. 5 is the Manager of the plaintiff firm. His evidence is that the firm is a registered partnership firm and he has proved memo of registration of the firm marked Ext. 9. He has also proved that the suit property was purchased by the firm. The sale deed has been marked Ext. 10. In the sale deed we also get the names of the partners of the firm as purchasers. This witness A. P. Bhatia has asserted that the firm requires the suit premises for erecting a new building after demolishing the existing structures. Prom his evidence we also get that the plaintiff's office is at premises No. 1, Crooked Lane and that after rebuilding the plaintiff will occupy the building for office and godown purposes. The witness has further stated that the plaintiff has means to defray the costs of the new building. The evidence further is that the partners of the firm pay income-tax exceeding 4 1/2 lacs of rupees. Some income-tax papers have been marked Exts. 11 to 11 (C). Some income-tax receipts have been marked Exts. 12 to 12 (j). P. W. 5 has stated in evidence that the defendant has no manufacturing business in the suit premises. He has said that at the inception of the tenancy the defendant used the suit premises as an office room. This witness has been cross-examined at length. He has denied the suggestion that the proposal for the new building has been made in such a way as to evict the tenants. The suggestion was that the plan was prepared fraudulently and without any basis of requirement, but the said suggestion has been denied. Being cross-examined from the side of the defendant, the witness has stated that the company has no manufacturing business in the suit premises. It is to be noted that the witness was not cross-examined by the learned Advocate appearing on behalf of the defendant on his statement that at the inception of the tenancy, the company used the premises as an office room. No suggestion was made in respect of this statement. The witness has denied the suggestion that the present accommodation available to the plaintiff is more than sufficient for the purpose of the firm. He has also denied the suggestion that the plaintiff wanted to enhance the rent. We set from P. W. 5 that thefirm received notice from the Corporation of Calcutta for demolition of certain portions of the present building and repairing certain portions and that notice was marked Ext. 14. This notice is not relevant for the purpose of determination of the issue raised in this suit. It is not the case of the plaintiff that they have got to demolish any part of the suit premises in this case due to the notice for demolition issued by the Corporation. The case of the plaintiff definitely is that for reasonable requirement and accommodation it has got to construct a new building in place of the old one.

7. D. W. 1 is a defendant in anotherejectment suit. He has stated that the building is very strong and that the plaintiff has set up a false plea of requirement after demolition of the building. In cross-examination he has stated that the building is very old. He has said nothing else of any importance. D. W. 2 is a defendant of another suit heard analogously. He has denied that the plaintiff will demolish the building and erect a new building. D. W. 3 is the defendant in Ejectment Suit No. 1093 heard along with the suit. He has simply stated that it is not 3 fact that the plaintiff will build a new house after demolishing the present structure. His evidence is that the funds shown by the plaintiff in this suit are meant for investment in the business, that is to say, he does not admit that the plaintiff has sufficient means for the purpose of making construction of the new building. He wants to say that the funds shown by the plaintiff would be utilised for the business investment. D. W. 4 is a defendant in one of the suits heard analogously. He denies that the plaintiff will demolish the present structure and will erect a new building. D. W. 5 is Sarju Singh. He speaks about the servants' quarter at premises No. 1. Crooked Lane. He says that the said quarters are in good condition and not liable to collapse and that the roof of the room is not leaky. D, W. 6 is the defendant in Ejectment Suit No. 2069 heard analogously. His evidence is that the plaintiff will not build any new building after demolishing the present structure. Of course he has received a demolition notice from the Corporation and he does not know whether the building is 80 years old. The defendant of Ejectment Suit No. 2070 has been examined as D. W. 7. He occupies one room in the servants' quarter at premises No. 1, Crooked Lane. He says that the room isnot liable to fall down although he has received a demolition notice from the Corporation. Let us now come to D. W. 8. He is an office Assistant of the defendant company. He says that the tenancy of Rs. 102/- of the suit premises was taken for manufacturing purpose and that the company carries on business of gumming, slitting and packing cigarette paper. He has stated that the defendant manufactures the cigarette paper and for this purpose the company has machineries driven by electric power. The witness has made an attempt to say that the tenancy of Rs. 102/- consists of 3 rooms and one shed on the ground floor. This story is a new one. It has not been pleaded in the written statement although in the plaint it was clearly stated that the defendant was a tenant in respect of one room described in the schedule. This is unacceptable. He has stated that the plaintiff has got 40/50 bighas of land at Kamarhati B. T. Road where the plaintiff firm has a factory. We also get from him that the factory has been extended. The witness has stated that the plaintiff has got sufficient accommodation for office staff, partners and others. The witness does not believe that the plaintiff would erect a new building after demolition of the existing structures at premises No. 1. Crooked Lane. Calcutta. The witness has further stated that the funds shown by the plaintiff will be invested in its business and not in construction of a new building. This witness does not know when this tenancy was created. He is in service of the defendant only for 6 years. He has admitted further that it is his surmise that the plaintiff would invest the funds shown in their business. The witness has further stated that the company does not manufacture cigarette papers which they purchase from elsewhere.

8. It may be mentioned that the defendant had another tenancy at 1, Crooked Lane and the plaintiff filed another suit against the defendant in respect of that tenancy as well. That suit along with several others were heard analogously and all the suits were decreed. The defendant appealed against the decree passed in the other suit but ultimately the defendant delivered possession of the suit property in that suit during the pendency of the appeal and the said Appeal No. F. A. 2 of 1968 was dismissed. As all the tenants except another delivered possession of the suit property to the respondent-plaintiff, the defendant filed a petition for local investigation by a competentperson to report If at the present moment when the plaintiff has got possession of the major portion of the house, the plaintiff still requires the suit premises in occupation of the defendant in this case for building and rebuilding and if for such building the defendant is to be evicted. A surveyor and valuer was appointed Commissioner for the purpose and he submitted report in favour of the plaintiff. Then the plaintiff examined him in this Court on the additional issues framed. At first F. A. 2 and this appeal were to be heard analogously but as F. A. 2 of 1968 was dismissed this appeal is heard alone.

9. Besides the evidence recorded in the trial court as already discussed, the plaintiff has adduced further evidence in this case on the additional issues already mentioned. The defendant has also adduced some other evidence. Nageswar Singh one of the partners of the plaintiff firm has examined himself. The witness has stated that the firm has no other accommodation which may satisfy its requirement for space. The premises No. 30, Basanta Roy Road belongs to the firm where Jagadishwar, Bhubaneswar and Benay Krishna, the partners are residing and in premises No. 204, Sarat Bose Road the witness himself is residing. The witness has further stated that the plot No. 117, B. T. Road does not belong to the firm but its owner is Beni Ltd., a different concern. The witness has also stated that the proposed construction for the requirement of the plaintiff cannot be made without the tenants being evicted. The witness has stated that it would be false to suggest that the firm has any other accommodation in Calcutta or elsewhere by which the firm can satisfy the requirement for space. It has been suggested to this witness during cross-examination that the premises at 30. Raja Basanta Roy Road and 204, Sarat Bose Road constitute sufficient accommodation for the residential quarter of the partners of the firm as well as office accommodation. The witness has stated that these premises are only residential accommodation and that there is no office in those premises. It is also suggested that the new building can be constructed after demolishing the existing building part by part. But the answer is that it cannot be done. It has been suggested further that without disturbing the occupation of the defendant, new construction can be done. Again the suggestion has been denied. The next witness examined on the side of the plaintiff-respondent is Sukumar Dey, aChartered Surveyor and Valuer. On receipt of an order from this Court the witness inspected and surveyed the premises No. 1, Crooked Lane. He had submitted a report. This witness got a plan prepared under his supervision. That report has been marked H. C. Ext. No. 1. He has stated that the said report is correct. He inspected the suit premises on 9th July, 1976. At that time only two tenants were found. One was Marquas Garage and the other was the defendant company. This witness has seen the proposed plan of the building relied upon by the plaintiff. He got the sanctioned plan given to him. According to him on scrutiny of the plan sanctioned by the Corporation, the building construction work cannot be carried out in the premises without evicting the tenants. This expert witness has been examined practically for the purpose of saying whether the construction of the plaintiffs proposed building can be done without the premises being vacated by the tenants and his definite evidence is that on scrutiny of the sanctioned plan the construction work of the new building cannot be carried out in the premises without evicting the tenants. On this point, however, the witness was not cross-examined at all. The defendant, however, examined in this appeal an employee of the company. He is an Administrative Officer. This witness has been examined-in-Chief on the question whether the plaintiff requires this space for car parking or whether it has got any godown in the suit premises. The witness says that the plaintiff has a factory at B. T. Road. During cross-examination the witness has stated that Beni Limited is the owner of the factory at B. T. Road. The witness was also cross-examined regarding space for car parking

10. Mr. Dutt has argued that in connexion with the additional issues framed In this Court, the plaintiff's witness stated that some space was necessary for car parking. It has been submitted that this requirement for car parking is something new not spoken about in the trial court. I cannot accept this proposition because the original case of the plaintiff that it requires the suit premises for building and rebuilding and for accommodation for its office and godown remains. In connexion with the business, space for car parking is necessary and in that connexion space about car parking was referred to. I cannot hold that any new case has been brought at the appellate stage or that thestory of reasonable requirement set up by the plaintiff in the pleading has been given a go-bye. On consideration of the evidence on record, there can be no doubt that the plaintiff reasonably requires the suit premises for building and rebuilding and also for use and occupation and for accommodation for its business purposes including office accommodation and for the use of godown. The plaintiff is not in possession of any reasonably suitable accommodation and its requirement will not be satisfied by partial eviction of the defendant. This reasonable requirement of the plaintiff is bona fide.

11. In connexion with the reasonable requirement it has been urged from the side of the appellant that the disputed property was not purchased by the firm, but by Jagadishwar Singh, Bhubaneswar Singh, Nageswar Singh and Benay Krishna Singh in their personal capacity and, therefore, when the firm does not own the suit property, there cannot be any valid case for reasonable requirement of the suit premises by the firm. The relevant sale deed is Ext. 10 executed by the vendors in favour of Jagadishwar Singh and three others as already mentioned. In this deed it is stated that the vendees are Hindu Traders carrying on business in partnership under the name and style of B. M. Singh & Son at No. 1, Crooked Lane in the town of Calcutta. This indenture is dated 29th of Mar. 1963. From the recitals of the document and also from the description of the vendees there can be no doubt that the property in question was purchased by the partners on behalf of the firm. It should also be noted that although in the plaint the plaintiff asserted that the firm was the owner of the suit premises, the company in the written statement did not dispute or challenge the said assertion. Besides P. W. 5, the Manager of the firm stated that the plaintiff-firm purchased the suit property by a sale deed marked Ext. 10. The witness has not been cross-examined on that point and moreover no evidence was adduced from the side of the defendant to challenge that statement. The contention raised by Mr. Dutt is, therefore, unacceptable.

12. It has been next contended by Mr. Dutt that in view of the dismissal of Ejectment Suit No. 844 of 1964 previously brought by the plaintiff against the defendant on ground of reasonable requirement of the suit premises for the use and occupation of the plaintiff and default in payment of rent, the present suit on thesame ground and on the same cause of action is not maintainable and also barred by the principles of res judicata. Ext. D is the certified copy of the plaint of the Ejectment Suit No. 844 of 1964. It appears that the plaintiff filed an ejectment suit against the defendant in the City Civil Court at Calcutta on the ground that the plaintiff-firm required the premises for their own use and occupation and that the defendant was a defaulter in payment of rent from the month of July, 1963. Exhibit E is the certified copy of the order dated 16-6-1965 showing that the suit was dismissed for non-prosecution as the learned Advocate appearing on behalf of the plaintiff had no instruction to proceed with the suit. First of all it is seen that in the previous suit the grounds for eviction were that the plaintiff required the suit premises for their own use and occupation and that the defendant was a defaulter in payment of rent. It also appears that the plaintiff did not proceed with that suit and as such the suit was dismissed. In the present suit, however, the plaintiff-firm has stated that it requires the suit premises for the purpose of building and rebuilding and for their own use and occupation and for accommodation of their business. In the previous suit the tenancy was terminated with the expiry of the last day of December, 1964. It appears, however, that after, the dismissal of the previous suit the firm recognising the defendant company, a tenant as before again determined the tenancy by notice with the expiry of the last day of July, 1965. In the present suit the company has asserted in the written statement that its tenancy has not been determined and that its tenancy has been continuing as before as the notice to quit is illegal and insufficient. In a case like this the cause of action is continuing as the plaintiff requires the suit premises for its own use and occupation. Moreover in the present suit there is the further additional ground for building and rebuilding which was not the ground of eviction in the previous suit. It is no wonder that the plaintiff-firm wanted to bring a more comprehensive suit for eviction on several grounds including the one for building and rebuilding and that was the reason why the plaintiff did not proceed with the previous suit. We also get that in the previous suit there was no decision on merits of the plaintiff's case. In the present suit the cause of action is different. On these grounds we cannot hold that the present suit is hit by theprinciples of res judicata or estoppel. The suit is maintainable.

13. It has been next argued by Mr. Dutt, the learned Advocate appearing on behalf of the appellant that on account of the promulgation of the Urban Land (Ceiling and Regulation) Act, 1976 the plaintiff-firm cannot make use of the entire land covered by premises No. 1, Crooked Lane, Calcutta because according to him there is excess of vacant land which the plaintiff cannot retain. It has been argued further that due to the prescribed ceiling of land under the said Act the plan of the building on which the plaintiff must rely cannot be allowed to be made use of. The Urban Land Bill of 1976 was introduced in the Lok Sabha on 28-1-1976. The bill with some amendments was passed on 5-2-1976 and the President gave his assent on 17-2-1976. This objection was not taken in the additional written statement filed before this Court. This point has been taken up just before the hearing of the appeal. It appears from the provisions of the Act that there is prescribed authority to consider about the ceiling and also the claim made by the owners of the lands and that authority will decide what would be the ceilings in particular cases and how far the claims of the proprietors of the land can be allowed. In this appeal, in my view, there is no such scope for ascertaining the ceilings or the claims as prescribed by the said Act. That is a matter to be considered by the authority prescribed by the Act and also the appellate authorities prescribed therein. In this appeal we are to see whether there is a bona fide and reasonable requirement of the suit premises by the plaintiff-firm for building and re-building and for use and occupation as stated in the plaint. If it is proved that the requirement of the suit premises as alleged by the plaintiff is genuine and bona fide and reasonable in view of the facts and circumstances, there can be no valid reason to dismiss the plaintiffs suit. There is no doubt that in the present case the plaintiff requires the suit premises and that the building proposed to be constructed cannot be made unless the defendant is evicted. There is no evidence either before us adduced bv the defendant that there is any vacant space to be attracted by the Urban Land (Ceiling and Regulation) Act, 1976 prejudicially to the interest of the plaintiff-firm. A petition was filed in this respect on 2-9-1976 before hearing and it has been objected to by the respondent challenging the allegations. We cannot, therefore, accept Mr. Dutt's contention.

14. Mr. Dutt's next point is that the suit is not maintainable as there has been no legal partnership business according to law. He wants to argue that the partnership is bad in law because there was a minor taken as a partner and according to the provisions of Partnership Act a minor cannot be a partner. It has been further argued that the suit is hit by Section 69 of the Partnership Act. Let us now consider the evidence on record. The certified copy of the extract from the Register of Firms has been marked Ext. 9. In the columns for the names and addresses of the partners and the date of joining or changes therein we get that Bhubaneswar Singh representing the joint family consisting of himself and his brother Nageswar Singh and his minor son residing at P-30, Raja Basanta Roy Road, Calcutta was described as a partner and Jagadishwar Singh residing at 42, Sikdarpara Street, Calcutta was mentioned as another partner. The Registrar gave his signature on 16-8-1955 which presumably appears to be the date of registration. We further get from this exhibit that in July, 1961 there was a notice of changes in the constitution and in the column for names of the partners we get Jagadishwar Singh, Bhubaneswar Singh, Nageswar Singh and Benay Krishna Singh. It is quite clear that although Bhubaneswar Singh originally represented the joint family consisting of himself and his brother Nageswar and his minor son, the name of the said minor son of his was not mentioned as partner but after the change in the constitution of the partnership in July, 1961 Benay Krishna Singh has been mentioned as a partner. Admittedly he was the minor son of Bhubaneswar referred to already. That Benay Krishna Singh was the son of Bhubaneswar Singh will appear in Ext. 10. In Ext. 9 we further get that in Sept., 1962 there was a notice of attaining majority and electing to become a partner by Benay Krishna who was originally described as minor son. In the column meant for recording of changes of constitution we find the remark made by the Registrar that Benay Krishna was admitted to the benefits of Partnership from 1-6-1961. On consideration of the evidence on record there can be no doubt that originally Bhubaneswar Singh representing the joint family consisting of himself, his brother Nageswar and his minor son entered into a partnership business with Jagadishwar Singh. Bhubaneswar certainly could as Karta or representing his joint family as in this case enter into a valid partnership with another person Jagadishwar Singh. This is not a case of joint family business or any alleged family partnership business referred to in Section 5 of the Indian Partnership Act In this connexion the case of Commissioner of Income-tax, West Bengal v. Kalubabu Lalchand reported in : [1959]37ITR123(SC) may be referred to. In para. 10 of the said judgment we get :--

'It is now well settled that a Hindu undivided family cannot as such enter into a contract of partnership with another person or persons. The Karta of the Hindu undivided family, however, may and frequently does enter into partnership with outsider on behalf of and for the benefit of his joint family, but when he does so, the other members of the family did not vis a vis the outsiders, become partners in the firm'.

In the present case Bhubaneswar representing the joint family entered into partnership with Jagadishwar Singh. The minor son of Bhubaneswar was not a partner. Subsequently in July, 1961 there was change in the constitution of the partnership and Jagadishwar Singh, Bhubaneswar Singh and Nageswar Singh became partners and Benay Krishna Singh, a minor was admitted to the benefit of the partnership. This benefit given to the minor was quite legal. Later on in September, 1962 Benav Krishna Singh gave notice that he had attained majority and that he had elected to become a partner. This was accepted and as such he also became a partner along with Jagadishwar Singh. Bhubaneswar Singh and Nageswar Singh. In the year 1963 the suit property was purchased by all these four partners, namely. Jagadishwar Singh, Bhubaneswar Singh, Nageswar Singh and Benay Krishna Singh as partners of B. M. Singh and Son. There has been erroneous printing of Ext. 9 included in the Paper Book. In the columns for the names and addresses of the partners a full stop was omitted after the words 'his minor son' meaning the minor son of Bhubaneswar and in fact and admittedly Jagadishwar was not minor son of Bhubaneswar. In view of what I have already discussed there can be no doubt that there has been legal registration of the partnership and that there was no occasion for any minor being admitted as partner. We find no ground to hold that the presentcase 19 hit by Section 69 of the Indian Partnership Act

15. With regard to the question whether the suit is barred by Sub-section (3-A) of Section 13 of the West Bengal Premises Tenancy Act, the fact is that the plaintiff purchased the suit property in Mar., 1963. The suit was filed in Sept., 1965. Sub-section (3-A) of Section 13 was introduced in 1969 when this appeal was pending. In view of the decision of the Supreme Court in the case of B Benerji v. Anita reported in : [1975]2SCR774 , the plaintiff-respondent amended the plaint by a petition filed in August, 1975. A written statement was filed and after the striking of additional issues, the parties led evidence. In these circumstances in view of the decision in B. Banerji's case the technical difficulty is overcome after the amendment petition on the ground that 1975 may be taken as the year of institution of the suit for pleadings mentioning grounds under Clauses (f) and (ff) of Section 13 (1) of the West Bengal Premises Tenancy Act. This procedure avoids multiplicity of proceedings and litigative waste without impairing proper justice. We find that the present suit is not hit by Sub-section (3-A) of Section 13 of the West Bengal Premises Tenancy Act.

16. The last point canvassed by Mr. Dutt is that the notice to quit served upon the defendant in the instant case was invalid in law and insufficient. The contention of Mr. Dutt is that the plaintiff has been doing manufacturing business in the suit premises and that in view of Section 106 of the T. P. Act when the defendant has not been given six months' notice to quit the suit is not maintainable. Admittedly one month's notice to quit was served upon the defendant. The allegation about the determination of tenancy by a notice has been made in para. 3 of the plaint. In para. 2 of the plaint it is stated that the defendant was a monthly tenant under the plaintiffs in respect of the suit premises at the rent of Rs. 102/- per month payable according to English Calendar. Regarding the allegation made in para. 3 about the notice to quit and the determination of tenancy it is stated in para. 4 of the written statement that the notice to quit is invalid, illegal, insufficient and void and as such it cannot determine the tenancy. In para 5 of the written statement it is stated that the defendant has machineries installed in the suit property and that it runs its manufacturing business there. P. W. 5 onthe side of the plaintiff has stated that the defendant has no manufacturing business in the suit premises and that at the inception of the tenancy the defendant used the premises as an office room. During cross-examination by the defendant there was a suggestion that the defendant had manufacturing business, but the said suggestion has been denied. The witness has stated that the defendant carries on business of cutting and gumming cigarette paper. The plaintiff's witness was not cross-examined about his evidence that at the inception of the tenancy the defendant used the premises as an office room. D. W. 8 is the relevant witness from the side of the defendant. He has stated that the tenancy of Rs. 102/- was taken for manufacturing purposes. According to him the defendant carries on business of gumming, slitting and packing cigarette paper and he says that the defendant manufactures cigarette paper. During cross-examination this very witness has stated that the defendant does not manufacture the cigarette paper which the defendant purchases from elsewhere. This witness is a new comer in the defendant's company. He is an office assistant. No responsible officer comes to depose on behalf of the defendant. This witness does not know when the tenancy was created. According to this witness certain machineries are in the suit premises for the purpose of manufacturing of cigarette paper but it does not say what actually is done by the machineries. He does not say when the machineries were Installed. He has no personal knowledge as to the terms of tenancy when it was taken because he was not at that time an employee of the defendant. He does not bring any reliable documentary evidence about the terms of tenancy. Neither any officer of the defendant nor the Directors thereof have been examined to show that the tenancy was taken for manufacturing business or purposes, although the Directors were in Calcutta at the time of trial of the suit. No explanation has been given why any responsible officer has not come forward to depose to show that the tenancy was for manufacturing purposes. It is for the defendant to prove that the lease or tenancy of immovable property was for manufacturing purposes. It may be that during the continuance of the tenancy taken for purposes other than manufacturing one the tenant might have started manufacturing business subsequently but that will not entitle him to get six months' notice to quit the suitpremises expiring with the end of a year of tenancy. We have got no doubt to hold that there is no reliable evidence on record to prove that the tenancy of the defendant was for manufacturing purposes and we agree with the findings of the court below. It is to be noted in particular that it has not been pleaded in the written statement that the tenancy of the defendant was for manufacturing purposes. On this point the defendant was silent. It was simply stated that the defendant has machineries installed in the suit property and runs manufacturing business. The defendant has failed to discharge the onus lying upon it to prove that the tenancy was for manufacturing purposes.

17. Coming to the question whether the company is doing any manufacturing business, Mr. Chakraborty for the respondent has urged in support of the decree that the court below ought to have held that the defendant has no manufacturing business in the suit premises. First of all in the written statement it has not been indicated the nature of manufacturing business the defendant runs. P. W. 5 has said during examination-in-chief that the defendant has no manufacturing business but in cross-examination no suggestion has been thrown as to the nature of the alleged manufacturing business. D. W. 8 an office assistant has stated 'We carry on business of gumming, slitting and packing cigarette paper. We manufacture the cigarette paper'. In cross-examination this very witness has admitted, 'we do not manufacture the cigarette papers which we purchase from elsewhere'. The story of manufacture crumbles down. Moreover, the question is whether gumming, slitting and packing cigarette paper is manufacturing business. In the case of Kartick Chandra Dutta v. Jagesh Chandra Das reported in (1976) 3 Cal HC (N) 112 the meaning of 'manufacture' referred to in Section 106 of the T. P. Act came to be considered by me and I had occasion to discuss that point with reference to several decisions. In particular the decision of the Supreme Court in the case of S. H. Sugar Mills v. Union of India, : 1973ECR9(SC) was relied upon. In that case it was held:

'The word 'manufacture' implies a change but every change in the raw material is not manufacture. There must be such a transformation that a new and different article must emerge having a distinctive name, character and use.'

In the case before us simply putting gum on the cigarette paper purchased from market and cutting the said paper into strips and then packing the same again cannot be called manufacture of cigarette paper. This is not a manufacturing process as contemplated in Section 106 of the T. P. Act. The learned trial court, in my view failed to appreciate the true import of manufacturing purposes referred to in Section 106 already mentioned. The learned Judge below went wrong to hold that the defendant carried on manufacturing business without any evidence of manufacture,

18. In view of the decision and the findings above, it must be held that six months' notice to quit as required in Section 106 of the T. P. Act in case of tenancy for manufacturing purposes was not necessary to be served on the defendant and I express no view in this case on the question whether such a notice would be necessary even if the tenancy runs from month to month.

19. There is no merit in the appeal. The petition filed by the appellant on 2-9-1976 for application of the provision of the Urban Land (Ceiling and Regulation) Act, 1976 to set aside the decree of the trial court stands rejected in view of our findings in the judgment.

20. The appeal is dismissed with costs. The plaintiff is to complete the construction of the building within 3 (three) years from the date when he gets khas possession of the entire premises No 1, Crooked Lane, Calcutta by evicting the tenants. He may apply for extension of time under Section 18-A of the West Bengal Premises Tenancy Act to the trial court which is to dispose of the application according to law.

21. Send down the records to the trial court.

A.K. Janah, J.

22. I agree.


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