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Brohmananda Das Vs. Nagendra Chandra Sarkar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 716 of 1952
Judge
Reported inAIR1954Cal224
ActsTransfer of Property Act, 1882 - Section 106; ;West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 - Section 11(1)
AppellantBrohmananda Das; Nagendra Chandra Sarkar
RespondentNagendra Chandra Sarkar; Brohmananda Das
Advocates:Nani Coomar Chakravarti and ;Ajit Kumar Dutt, Advs.
Cases ReferredJoyanti Hosiery Mills v. Upendra Chandra
Excerpt:
- .....mesne profits. 3. the suit was contested on various grounds of which only two are material for our present purpose. the first is that the notice to quit is insufficient and, therefore, bad in law as the tenancy being for manufacturing purposes could not be terminated by the notice to quit, given by the landlord, which was not a six month's notice as required by law. secondly, the tenant denies that there has been any contravention on his part of any of the clauses (m), (o) and (p) of section 108 of the transfer of property act to disentitle him to the benefits of rent control law. these are the only two points which have been argued by mr. chakravarti in support of his client's appeal. 4. the learned munsif accepted both the above contentions and dismissed the plaintiff's suit. on appeal.....
Judgment:

P.N. Mookerjee, J.

1. The defendant appellant was the tenant under the plaintiff respondent in respect of a part of the ground floor of premises No. 70-A Park Street on a monthly rental of Rs. 45/-. The tenancy was terminated by a notice to quit, dated 30th July, 1949, given by the plaintiff landlord, asking the defendant to quit and vacate on the expiry of the last day of August 1949. On 21st September 1949, the present suit for ejectment was filed before the learned Munsif, 2nd Court, Sealdah.

2. In the plaint an allegation was made substantially to the effect that the tenant was guilty of contravention of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act 1882 and was, accordingly, not entitled to the protection of the Rent Control Law. The landlord claimed a decree for ejectment and mesne profits.

3. The suit was contested on various grounds of which only two are material for our present purpose. The first is that the notice to quit is insufficient and, therefore, bad in law as the tenancy being for manufacturing purposes could not be terminated by the notice to quit, given by the landlord, which was not a six month's notice as required by law.

Secondly, the tenant denies that there has been any contravention on his part of any of the Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act to disentitle him to the benefits of Rent control Law. These are the only two points which have been argued by Mr. Chakravarti in support of his client's appeal.

4. The learned Munsif accepted both the above contentions and dismissed the plaintiff's suit. On appeal by the plaintiff-landlord, that decision has been reversed by the learned Additional District Judge who has held in the plaintiff's favour on both the above questions and has, accordingly, decreed the suit. Hence this second appeal by the tenant.

5. There is no dispute now that the tenancy was taken for running a sweetmeat shop under the name of 'Jalajog'. There is also no dispute that the disputed premises comprised, inter alia, a shop room, a kitchen and a verandah. The appellant contends that the kitchen was taken for the purpose of preparing sweets for sale in the bigger shop room which together with the verandah comprised, practically speaking, the other part of the tenancy and it is argued therefrom that the purpose of the tenancy -- or at least its primary purpose -- was to prepare, -- or, to use the word, so often repeated by the appellant's learned Advocate, 'to manufacture', --sweets for sale and that, accordingly, the tenancy was for 'manufacturing purposes' within themeaning of Section 106 of the Transfer of Property Act. This argument was accepted by the learned Munsif but was rejected on appeal by the learned Additional District Judge.

6. In my opinion, the view of the lower appellate Court is right. The use of the word 'manufacture' to describe the process of preparation of sweets -- though not unknown -- is, generally speaking, not very appropriate & I am not prepared to hold that, as a general rule, preparation of sweetmeats would answer the test of 'manufacture' for purposes of Section 106 of the Transfer of Property Act. Normally it does not and the present case is no exception. -- 'Joyanti Hosiery Mills v. Upendra Chandra AIR 1946 Cal 317 (A) is hardly in point.

There can be no doubt also that whatever the meaning of the word 'manufacture' may be, the jpresent lease was at least as much for sale of sweets as for preparing the same in the disputed premises. That being so, it was not solely for manufacturing purposes but was as much for other purposes as well. It was, therefore, a lease for 'any other purpose' within the meaning of Section 106 of the Transfer of Property Act and the test of primary purpose would not help the appellant. It seems to me further that the primary purpose of running a sweetmeat shop is to sell sweets, whether manufactured at the spot or brought from elsewhere. The test of primary purpose would, therefore, rather go against the appellant. Accordingly, the disputed tenancy cannot be held to be one for 'manufacturing purposes' so as to require a six months' notice to quit for its termination. The appellant's argument on this part of the case must, therefore, fall.

7. I may point out further that if the appellant's present contention be accepted, then practically every tea-shop or restaurant or hotel would become a tenancy for manufacturing purposes and, as cooking of food would also be 'manufacture' on a similar line of reasoning, the six months' notice to quit may well become the usual or the general rule in this city. I am not prepared to assent to a proposition which would lead to such a result. I, accordingly, reject the first ground, urged in support of this appeal.

8. On the second question, the position appears to be as follows: The appellant has admittedly constructed a surface drain upon the floor of the verandah and has made many holes in the walls to run water-pipe fittings through them. He has also driven angles in the walls for supporting a 20 gallon water-reservoir which has been placed upon the said angles. He has further 'constructed a pucca masonry wall over 31/2 ft. in height upon the floor of the verandah by digging open a part of its floor and has practically converted a substantial part of the said open verandah into a closed room. He has also made a pucca construction of sufficient height to serve as a receptacle of refuse matters. All these have been done without the landlord's permission and even despite protest from the landlord.

9. It has been urged by Mr. Chakravarti that all the above alterations and constructions had to be done under the Corporation license required under the law for running sweetmeat shops and as the landlord leased out the suit premises for that purpose, he must be deemed to have consented to the same. I am unable to accept this argument. The Corporation license (Ex. E) nowhere requires the alterations and constructions as made by the tenant in the present case. Its requirements are simple and they could have been easily carried out without damaging the landlord's premises and making unauthorised pucca constructions therein.

It is also contended that the damages caused are reparable and opportunity should have been given to the tenant to repair the same as contemplated by Clause (m) of Section 108 of the Transfer of Property Act. This may be conceded and contravention of Clause (m) may not be found in the present case. I am also prepared to hold that the damages are not such as would come within Clause (o) of the said section. But there is no question that the tenant has contravened Clause (p) of the section inasmuch as the pucca constructions, referred to above, are, in my opinion, permanent structures within the meaning of the said clause and they have clearly been raised without the lessor's consent. This contravention of Clause (p) is sufficient to disentitle the tenant to the protection of the West Bengal Premises Rent Control (Temporary Provisions) Act 1948, which governs the present case, (vide Section 11 Sub-section 1 proviso (a) of the Act) and accordingly, the second point, urged in support of this appeal, must also fail

10. In view of my findings, made above, this appeal ought to be dismissed but such dismissal should, in my opinion, be subject to some time being given to the appellant to remove the sweets meat shop to another place.

11. I accordingly, dismiss this appeal subject to this that the present appellant will have time till the end of February 1954 to vacate the suit premises and, before the expiry of that period, the decree-holder respondent will not be entitled to execute the decree for ejectment. I also direct that, in the circumstances of this case, the parties will bear their own costs in this Court.

12. Leave to appeal under Clause 15 of theLetters Patent is asked for and is refused.


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