Skip to content


Bhola Nath Das and ors. Vs. Bholanath Boral - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberAppeal from Original Decree No. 455 of 1979
Judge
Reported inAIR1985Cal387
ActsWest Bengal Premises Tenancy Act, 1956 - Section 13; ;Constitution of India - Article 226; ;Transfer of Property Act, 1882 - Section 106
AppellantBhola Nath Das and ors.
RespondentBholanath Boral
Appellant AdvocateT.P. Das and ;Kaberi Ghosh, Advs.
Respondent AdvocatePranab Kr. Ghosh, Adv.
DispositionAppeal dismissed
Cases ReferredHarihar Banerji v. Ramsashi Roy
Excerpt:
- .....the said house and for reasonable requirement of the plaintiff and the members of his family, the suit premises is reasonably required by the plaintiff. the further case of the plaintiff is that by a notice dated 10th february, 1975, given by the plaintiff's advocate to the said defendant, the tenancy was determined and the defendants were asked to vacate the said premises by 31st march, 1975. such notice was sent by registered post and admittedly the defendants had received the same but the defendants failed and neglected to vacate the suit premises. accordingly, the said suit had to be instituted.2. the defendants contested the said suit by filing written statement inter alia denying the allegations made in the plaint. it was contended by the defendants that the plaintiff had.....
Judgment:

G.N. Ray, J.

1. This appeal arises out of the judgment and decree passed by the learned Judge, 9th Bench, City Civil Court, Calcutta, in Ejectment Suit No. 390 of 1975. The defendants are the appellants in the instant appeal and the said suit was instituted by the plaintiff respondent against the defendant for eviction of the said defendants from the disputed premises. It is the case of the plaintiff that the plaintiff is the owner of the said premises No. 3/7B, Gorachand Bose Road and initially Tarapada Das, the predecessor-in-interest of the defendants was the tenant under the plaintiff and after the death of the said Tarapada Das, the defendants became the tenants in respect of the said premises. The plaintiff has been residing with the members of his family in the second floor of the said premises and the first floor of the said premises is already tenanted. It is the case of the plaintiff that the plaintiff and the members of his family are suffering immensely for acute shortage of accommodation in the premises now in their occupation in the said house and for reasonable requirement of the plaintiff and the members of his family, the suit premises is reasonably required by the plaintiff. The further case of the plaintiff is that by a notice dated 10th February, 1975, given by the plaintiff's Advocate to the said defendant, the tenancy was determined and the defendants were asked to vacate the said premises by 31st March, 1975. Such notice was sent by registered post and admittedly the defendants had received the same but the defendants failed and neglected to vacate the suit premises. Accordingly, the said suit had to be instituted.

2. The defendants contested the said suit by filing written statement inter alia denying the allegations made in the plaint. It was contended by the defendants that the plaintiff had sufficient accommodation for his own use and occupation along with the members of his family and the suit premises was not required for reasonable requirement of the plaintiff and the members of his family. The defendants also seriously disputed the requirement on the score of sister-in-law of the plaintiff and it was contended by the defendant that the said sister-in-law did not regularly reside in the said premises and in any event she was not a member of the family of the plaintiff. It was contended by the defendants that previously the plaintiff made an unsuccessful attempt to evict the defendants from the disputed premises but having failed in the said attempt, the instant suit has been instituted on untrue allegations. It appears that during the pendency of the suit, the plaintiff made an application for amendment of the plaint for the specific pleading in accordance with Section 13(1)(ff) of the West Bengal Premises Tenancy Act, 1956, as amended to the effect that the plaintiff had no other suitable accommodation anywhere in the city of Calcutta and the plaintiff required the suit premises for the reasonable requirement of the plaintiff and the members of his family. The said application was allowed by the learned Judge and the plaint was accordingly amended. The defendants also filed additional written statement pursuant to the amendment of the plaint. On the pleadings of the parties several issues were framed. The plaintiff examined himself in support of his contention and in his deposition, the plaintiff has stated that he needed suit premises for his personal use and occupation and his family consists of nine members, namely, the plaintiff himself, his wife, two sons then aged about 24 and 18 years respectively, three daughters then aged about 21, 17 and 12 years respectively, one unmarried sister-in-law aged about 30 years and one whole time maid servant. The plaintiff has also deposed to the effect that the said sons and daughters of the plaintiff are all unmarried and the eldest son of the plaintiff attained the marriageable age but he could not be given in marriage for want of accommodation. The plaintiff had also deposed to the effect that the plaintiff requires four bed rooms besides one drawing room and kitchen. The plaintiff has also stated that the plaintiff requires a Thakurghar and daily worship is being performed of the deities installed in the Thakurghar. It has also come out from the evidence of the plaintiff that a small kitchen on the third floor of the said premises attached to the Thakurghar is also utilised for the purpose of cooking bhog for the deities, particularly, when the pala of the plaintiff comes for the worship of the family deity.

3. On behalf of the defendants, the defendant No. 1, Bholanath Das got himself examined and in his deposition he has stated that the plaintiff does not require the said premises for his personal use and occupation and the sister-in-law of the plaintiff does not regularly reside with the plaintiff. The defendant has also denied that there is any whole time maid-servant in the family of the plaintiff. It appears that at the hearing of the said suit, the defendant raised a contention that the notice terminating the tenancy of the defendant was illegal and invalid. It may be noted that such plea was also taken in the written statement. It was contended before the learned trial Judge on behalf of the defendants that the defendants having been asked to deliver possession by 31st March, 1975 the notice was an invalid notice under Section 106 of the Transfer of Property Act because the tenancy was to subsist till the end of 31st March, 1975. The learned Judge did not accept the said contention and relying on a decision of the Madhya Pradesh High Court reported in : AIR1965MP140 and also a decision of the Bombay High Court reported in AIR 1944 Bom 181, the learned Judge has come to the finding that the notice is not invalid because the plaintiff has asked the defendants to quit and vacate on 31st March, 1975, instead of with the expiry of the said date. The learned Judge has come to the finding that the notice issued on behalf of the plaintiff is quite legal and valid and the tenancy has been duly determined by the said notice. On the score of reasonable requirement of the plaintiff and the members of his family, the learned Judge has taken note of the extent of accommodation available to the plaintiff both in the second floor and also in the third floor as noted by the learned Commissioner appointed for the purpose and the learned Judge has come to the finding that the plaintiff reasonably requires at least one bed room for himself and his wife, two bed rooms for the two sons because one is required to be given in marriage and one room for the three daughters and one drawing room for entertainment of guests. The learned Judge has come to the finding that the requirement for a drawing room cannot be defeated on the ground that the plaintiff can fulfil such requirement in the bed rooms. The learned Judge has also come to the finding that a family like the plaintiff also requires a Thakur Ghar and some space for cooking bhog apart from the kitchen as there are installed deities. The learned Judge has also accepted the plaintiffs case that an accommodation for a whole time maid servant is a necessity for the members of the family of the plaintiff. On such consideration, the learned Judge has come to the finding that the accommodation available to the plaintiff was insufficient and the plaintiff reasonably requires the suit premises for the use and accommodation of the plaintiff and the members of his family. Accordingly, the suit was decreed on contest with costs and the learned Judge allowed 90 days time to quit and vacate the disputed premises. Being aggrieved by the aforesaid judgment and decree, the instant appeal has been preferred by the defendants-appellants.

4. Mr. Das, the learned Counsel for the defendants-appellants has strenuously argued that the notice of eviction is illegal and invalid. Mr. Das has referred to the provisions of Section 106 of the Transfer of Property Act and has contended that the law is well settled that in a tenancy according to the English Calendar, the tenancy starts from 1st day of Calendar month and ends' with the expiry of the last day of the calendar month. Mr. Das has contended that by the notice determining the tenancy, the defendants were asked to deliver possession on 31st March but the defendants were entitled to continue in possession till the last moment of 31st March, 1975, and if by a notice under Section 106 of the Transfer of Property Act, the defendants are required to deliver possession at any point of time before the expiry of the last moment of the 31st March, 1975, such notice cannot but be illegal and invalid. In support of the said contention Mr. Das has referred to a decision of the Privy Council made in the case of Gooderham & Worts Ltd. v. Canadian Broadcasting Corporation reported in AIR 1949 PC 90. In the said decision it was found by the PC that the tenancy was year to year tenancy terminable by six months' notice on 15th May on any year. On 26th January, 1938, the notice was given to the tenant to terminate his tenancy from 15th May, 1938. The Privy Council has held in the facts of the said case that the notice being dated less than six months before the 15th May was an invalid notice and as such by the said notice the tenancy could not be terminated lawfully. In our view, the said decision has no manner of application in the facts of the present case. It is nobody's case that in the instant case, the notice is dated less than one month. The point for consideration in the instant case arises as to whether by asking the tenants to quit and vacate by 31st March, 1975, the notice has or has not been given according to Section 106 of the Transfer of Property Act. Mr. Das has cited another decision in support of his contention that the notice is invalid. Mr. Das has referred to the decision made in the case of Sushil Chandra Niyogi v. Birendrajit Shaw reported in 38 Cal WN 782 : (AIR 1934 Cal 837). In the said case the defendants held over as monthly tenants. The plaintiff gave notice to quit and vacate by 31st October, 1932. The premises had been let to the defendant for a term of 3 years from 1-4-1918. This Court has held by referring to the decision of the Privy Council made in the case of Benoy Krishna Das v. Salsiccioni reported in 37 Cal WN 1 : (AIR 1932 PC 279) that in such circumstances, the tenancy would expire after the midnight of 1st April, 1921. This Court has held that as the defendants were asked to vacate by 31st October, the notice was bad. In our view, this decision is clearly distinguishable. In the instant case, the tenancy being according to English Calendar month is to expire on last date of the calendar month. In that event, the tenancy of the defendants expires on the 31st March, 1975, and not on 1st of April, 1975. Hence the grounds on which the notice under consideration in the case of Sushi Ch. Niyogi were held invalid are not at all applicable in the facts of the instant case. Mr. Das has also referred to another decision of this Court made in the case of Jatindra Nath v. Malai Ram Show reported in : AIR1953Cal352 . In the said case, the notice which was taken up for consideration ran to the following effect : --

'Notice is hereby given to you to vacate and deliver up possession of the said two rooms with the end of 31st July, 1945 or at the end of a month of your tenancy which would expire next after fifteen days from the receipt of this notice.'

This Court has held in the said decision that such notice is quite legal and valid. Mr. Das has submitted that the said notice was held valid because in the notice the alternative form was also used, namely, the defendants were directed to vacate at the end of the month of the defendant's tenancy but in the instant case, such alternative expression not having been used, the notice cannot be salvaged and it must be held that the notice is illegal and invalid. Mr. Das has also referred to the decision of the Supreme Court made in the case of V. Dhanapal Chettiar v. Yesodai Ammal reported in : [1980]1SCR334 . A seven Judge's Bench of the Supreme Court has held in the said decision that in order to get a decree or order for eviction against a tenant under any State Rent Control Act, it is not necessary to give notice under Section 106 of the Transfer of Property Act. Determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplus age because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter. That being so, making out a case under the Rent Act for eviction of a tenant by itself is sufficient and it is not obligatory to found the proceedings on the basis of the determination of the lease by a notice under Section 106 of the Transfer of Property Act. The Supreme Court has held that from the language of various State Rent Acts it is evident that by necessary implication or by express provision, the issuance of a notice under Section 106 of the Transfer of Property Act for the determination of a tenancy have been overruled. Mr. Das has further submitted that so far as the West Bengal Premises Tenancy Act is concerned, neither expressly nor by necessary implication the requirement of a notice under Section 106 of the Transfer of Property Act stands overruled. Although it does not appear to us that the requirement of Section 106 of the Transfer of Property Act still subsists despite the overriding provisions of the West Bengal Premises Tenancy Act, it may not be necessary for this Court to determine the said question for the purpose of deciding this case because for the reasons to be indicated hereinafter we are inclined to hold that the notice given in the instant case is quite legal and valid even under Section 106 of the Transfer of Property Act. Mr. Das has also contended that the suit must fail also on merits because the plaintiff has failed to establish the case of reasonable requirement for eviction of the defendants tenants. Mr. Das has contended that the plaintiff suppressed a very material fact in the plaint that the plaintiff was the owner of a four storied building and not a three storied building. He has contended that for such suppression, the plaintiffs suit is liable to be dismissed because he has come with unclean hands and the Premises Tenancy Act being a beneficial legislation, a party is not entitled to get any benefit under the Act if he is found guilty of suppression of any material fact. It may be noted in this connection that in the plaint it has not been specifically stated that the house in question is a four storied house but reading the plaint it does not appear to us that the plaintiff has stated that the said house is a three storied house. It appears that the plaintiff made an application for appointment of a Pleader Commissioner for ascertaining the extent of accommodation in the said house and the learned Commissioner has given a detailed note about the extent of accommodation available both to the plaintiff and also to the defendant. In the circumstances, we cannot come to any finding that factually the plaintiff suppressed any material fact in the pleading. That apart it cannot be held that for mere suppression of a material fact, an ejectment suit is liable to be dismissed in limine. It may be noted in this connection that the relief claimed by the plaintiff under the West Bengal Premises Tenancy Act is not a discretionary remedy for which the suppression of a material fact may be taken into consideration for the purpose of exercising such discretion as has often been done by this Court and other Courts in the exercise of the discretionary remedy under Article 226 of the Constitution. So far as the merits of the case of the plaintiff is concerned, it appears that the defendant in his deposition has only stated that the plaintiff does not require the suit premises for his personal use and occupation and the plaintiff's sister-in-law does not regularly reside with him and there is no whole time maid-servant in the family of the plaintiff. It has not been staled by the defendant in his deposition that the composition of the family of the plaintiff as alleged by the plaintiff is different or that the plaintiff had any other accommodation available to the plaintiff to suit his requirements. The learned Judge has indicated the reasonable requirements of the plaintiff and the members of his family and in our view such requirement as found by the learned Judge is quite reasonable and no contrary view need be taken by us. We are, therefore, satisfied that the plaintiff reasonably requires the disputed premises for his own use and occupation and for the use of the members of his family and the plaintiff does not possess any other suitable alternative accommodation to satisfy such requirement.

5. So far as the validity of the notice is concerned, it appears to us that the said notice is quite legal and valid under Section 106 of the Transfer of Property Act and also under Section 13(6) of the West Bengal Premises Tenancy Act. In this connection reference may be made to a decision of the Supreme Court made in the case of Bhagabandas Agarwalla v. Bhagwandas Kanu reported in : [1977]3SCR75 . In the said case a notice to quit was given by the landlord to the tenant asking the tenant to vacate the premises within the month of October, 1962, otherwise the tenant would be treated as trespasser from 1st November, 1962. The Supreme Court has held that it is indisputable that under Section 106 of the Transfer of Property Act the notice to quit must expire with the end of the month of tenancy, or in other words, it must terminate the tenancy with effect from the expiration of the month of the tenancy. If it terminates the tenancy with effect from an earlier date, it would be clearly invalid. The Supreme Court has further held that where a notice has been given to the tenants to vacates the premises in question within the month of October, 1962' and intimated to them that otherwise they would be 'treated as trespassers from 1st November.', it must be held that the landlord expressed a clear intention that the tenants were required to vacate latest by the midnight of 31st October, 1962. The Supreme Court has also noted that there was no occasion to think that the tenants were required to vacate at any point earlier than the midnight of October, 1962. The Supreme Court has referred to the decision of the Privy Council in Harihar Banerji v. Ramsashi Roy reported in AIR 1918 Pi 102 and has held that a notice to quit must be construed not with a desire to find faults with it, which would render it defective, but it must be construed ut res magis valeat quam pereat. Mr. Das has submitted that in the notice under consideration of the Supreme Court in the said decision, the expression used was 'within the month of October, 1962' but in the instant case it has been said that the tenant would vacate 'on the 31st March, 1975'. Mr. Das has submitted that the two expressions are different and the instant notice for consideration by this Court cannot be saved by the reasons given by the Supreme Court. We are, however, unable to accept the said contention of Mr. Das. In the instant notice the tenant was required to deliver possession on 31st March, 1975. No specific time was mentioned in the notice. Clearly, therefore, the tenant was entitled to deliver possession of the disputed premises at last hour of the 31st March, 1975, namely, the midnight of 31st March. 1973. In the instant notice there is also a similar expression as was taken into consideration by the Supreme Court in the Bhagabandas's case, namely, in default of delivery of such possession on the expiry of 31st March, 1975, the tenant would be held as trespasser with effect from 1st April, 1975. The intention of the landlord, therefore, was made quite clear that the tenancy would expire by the end of 31sl March, 1975 and not on any earlier point of time. In the circumstances, we also accept the finding of the learned trial Judge that the notice is quite legal and valid.

6. Mr. Ghose, the learned Counsel appearing for the respondent has referred to a decision of this Court reported in (1956) 60 Cal WN 308. It is not necessary for us to refer to the said decision because the decision of the Supreme Court in Bhagwandas's case : [1977]3SCR75 clearly answers the contentions sought to be raised by the defendants.

7. In the circumstances, this appeal fails and is dismissed but we make no order as to costs.

8. Since the defendants are living in the said premises for quite sometime, we allow the defendants time to vacate the disputed premises ill 31sl May, 1985 on condition that the defendants would go on depositing mesne profits for such use and occupation of the disputed premises month by month at the rate of reni last paid in the trial Court by the 15th of each month following. The first of such deposits for the month of February, 1985, is to be deposited by the 15th March, 1985. In default, the decree for eviction will become executable at once.

Sankari Prasad Das Ghose, J.

9. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //