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Carrara Marble and Terrazo Co. Ltd. Vs. Charu Chandra Guha - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 1184 of 1955
Judge
Reported inAIR1957Cal357,61CWN407
ActsCode of Civil Procedure (CPC) , 1908 - Section 100; ;Transfer of Property Act, 1882 - Sections 106 and 116; ;West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Section 12
AppellantCarrara Marble and Terrazo Co. Ltd.
RespondentCharu Chandra Guha
Appellant AdvocateAshoke Kumar Sen and ;Barun Kumar Roy Choudhury, Advs.
Respondent AdvocateBinayak Nath Banerjee and ;Arun Kishore Das Gupta, Advs.
Cases ReferredUsharani v. The Research Industries Ltd.
Excerpt:
- .....that even when the tenancy admittedly ran from the 25th of one month to the 24th of the following month, rent used to be realised according to english calendar month. vide the plaint in the high court suit no. 931 of 1944 (exhibit 1) where the plaintiff asks for recovery of arrears of rent for the month of december, 1943, and 25 days of january, 1944. for these reasons, we are unable to draw the conclusion that the month of the defendant's tenancy coincided with the english calendar month from the fact that rents used to be realized according to the english calendar as proved by the letter, exhibit a, written by the plaintiff's son to the defendant on the 19th july, 1946, and the counterfoil rent receipts, exhibits 24 and 24 (a). for the purpose of coming to the finding the defendant's.....
Judgment:

Lahiri, J.

1. The suit out of which this appeal arises was one for the ejectment of the defendant appellant from a portion of the ground floor of premises No. P21 Mission Row Extension, now renumbered as No. 7 Ganesh Chandra Avenue. The tenancy of the defendant consists of a hall and a bathroom with a privy on the ground floor of the aforesaid premises which at its inception bore a monthly rent of Rs. 225/- but which was subsequently increased to Rs. 284/10as.

2. The plaintiff's case is that the defendant was a monthly tenant whose tenancy ran according to English Calendar month and that the plaintiff had determined the tenancy by service of a notice to quit requiring the defendant to vacate the premises on the expiry of the month of July, 1952, but as the defendant had failed to vacate according to the terms of the notice the plaintiff instituted the present suit. The plaintiff's case further is that as he reasonably requires the premises for his own use for establishing a printing press, the defendant is not entitled to the protection of the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950. The defendant contested the suit 'inter alia' on the ground that the tenancy had not been validly determined, because the tenancy did not run according to English Calendar month, but from the 25th of one month to the 24th of the following month and also on the ground that the plaintiff did not reasonably require the premises for his own use and occupation. The other points raised by the defendant are not material for the purpose of this appeal and they have not been pressed before us.

3. Both the Courts below have overruled the defence and decreed the suit in favour of the plaintiff and against the concurrent decrees the defendant has brought this second appeal.

4. The two questions which have been argued before us are (a) that the tenancy has not been validly determined by the notice served by the plaintiff and (b) that the plaintiff has failed to prove reasonable requirement which would disentitle the defendant to claim protection under the Rent Control Act.

5. On the first point the real question is: What is the month of the defendant's tenancy? The notice to quit on the basis of which the present suit was instituted is exhibit 21 which requires the defendant to quit on the expiry of the month of July, 1952. If the defendant's tenancy runs according to English Calendar month this notice is good. If, on the other hand, the defendant's tenancy runs from the 25th of one month to the 24th of the following month, as alleged by the defence, the notice is bad because it does not expire with end of a month of the tenancy. According to the plaint, the defendant was let into possession as a tenant in January, 1941, for a period of one year with an option of renewal for another year on the basis of certain letters which passed between the parties. The defendant obtained an extension of the period of the tenancy till January 25, 1944. Just before the expiry of that period the plaintiff served a notice on the defendant (exhibit 19) stating that the period of the tenancy would expire on the 25th January 1944, and asked the defendant to vacate after that date, On the defendant's failure to vacate in compliance With the terms of the aforesaid notice the plaintiff instituted suit No, 931 of 1944 on the Original Side of this Court for the ejectment of the defendant on the ground of expiry of the period of the defendant's tenancy by efflux of time. The suit was contested by the defendant by a written statement in which it was claimed that the defendant continued in possession after January, 1943, as a tenant holding over according to English Calendar month. Thereafter On account of certain amendments in the House Rent Control Order, 1943, which was then in force, the plaintiff applied for permission to the Rent Controller to continue Suit No. 931 of 1944 on the ground that the defendant was a defaulter. The Calcutta House Rent Control Order was then replaced by the Calcutta House Rent Ordinance of 1946 under which a defaulting tenant was given the right to deposit all arrears of rent within a certain time. Taking advantage of this right the defendant deposited all arrears as a result of which the permission asked for by the plaintiff was refused by the Rent Controller. The suit instituted by the plaintiff on the Original Side of this Court thus became infructuous and was not proceeded with. Thereafter according to paragraph 11 of the plaint in the present suit the plaintiff

'consented to the defendant's tenancy for the said premises and the defendant became under the plaintiff in respect of the said premises a tenant from month to month according to English Calendar on a rental of Rs. 284/10as.'

6. Upon the allegations made in the plaint, therefore, the suit for ejectment in the High Court became infructuous on account of the refusal of permission by the Rent Controller, and thereafter the plaintiff consented to the defendant's tenancy, and the defendant became a tenant from month to month according to English Calendar. It is difficult to follow this part of the plaintiff's case. If the plaintiff consented to the defendant's tenancy then upon the very allegations made in the plaint the month of the defendant's tenancy would not coincide with the English Calendar month, but would run from the 25th of one month to the 24th of the following month. In his evidence in Court, however, the plaintiff has given a totally different account of the termination of the High Court suit, He states in his evidence that during the pendency of the High Court suit he filed an application before the Rent Controller for permission to proceed with the High Court suit, but he withdrew both as the defendant agreed to give an increased rent and also to vacate as soon as it got some other accommodation and he goes on to add that a 'new tenancy was created with effect from 1-4-46.' In cross-examination he states that it is not correct that the Rent Controller refused him permission to eject the defendant. In spite of the disconformity between the statement in the plaint and the statement in his evidence, the plaintiff's evidence has been believed by both the Courts below, and in a second appeal we have no jurisdiction to make a different estimate of that evidence. But we can examine the question whether that evidence, if accepted, establishes the plaintiff's case that the month of the tenancy, as it originally stood, was altered.

7. The statement we have to consider is: 'a new tenancy was created with effect from 1-4-46'' which is the only evidence on this point. Mr. Sen appearing for the appellant has contended that this statement means a new tenancy in the literal sense, i.e., a new tenancy in the place of no tenancy, whereas Mr. Banerjee on behalf of the respondent contends that it means alteration in the month of the old tenancy. We must confess that the statement is ambiguous and is capable of either interpretation. It seems to us that the fact that the plaintiff had admitted in his plaint that he had consented to the defendant's tenancy was not present in the mind of the plaintiff or his legal advisers. If the defendant was holding over by consent, as stated in paragraph 10 of the plaint, the month of the tenancy would be from the 25th of one month to the 24th of the following month, and in order to prove that the month of the old tenancy was altered by a fresh agreement the plaintiff must prove that fact by more satisfactory evidence. Mr. Banerjee has contended that there could be no question of holding over because the defendant 'was a statutory tenant under the House Rent Control Order according to which a tenant included an ex-tenant. Even so, that statutory tenancy ran from the 25th of one month to the 24th of the following, and the plaintiff must prove how the month of the original tenancy came to be altered.

8. The Court of appeal below has very rightly observed that mere payment of rent from month to month according to English Calendar would not be sufficient, by itself, to prove the month of the tenancy, because the month of the tenancy may very well be different from the month according to which rent is realised, and the payment of rent according to English Calendar may be merely a mode of payment and nothing more. In this case there is some indication, though it is by no means conclusive, that even when the tenancy admittedly ran from the 25th of one month to the 24th of the following month, rent used to be realised according to English Calendar month. Vide the plaint in the High Court Suit No. 931 of 1944 (exhibit 1) where the plaintiff asks for recovery of arrears of rent for the month of December, 1943, and 25 days of January, 1944. For these reasons, we are unable to draw the conclusion that the month of the defendant's tenancy coincided with the English Calendar month from the fact that rents used to be realized according to the English Calendar as proved by the letter, exhibit A, written by the plaintiff's son to the defendant on the 19th July, 1946, and the counterfoil rent receipts, exhibits 24 and 24 (a). For the purpose of coming to the finding the defendant's tenancy ran according to English Calendar month, the Courts below have also relied upon an admission alleged to have been made by the defendant in its written statement (exhibit 2) in the High Court suit. The statement made is to the effect that by holding over the defendant became a monthly tenant according to English Calendar month. To say the least this statement is meaningless, because if the defendant was holding over it could not become a monthly tenant according to English Calendar, but would be a tenant from 25th of one month to the 24th of the following month. Moreover, according to the evidence of the plaintiff which has been discussed above, the new arrangement took place after the filing of the written statement, and so the so-called admission throws no light on the alteration of the month of the defendant's tenancy.

9. Some reliance was placed by Mr. Banerjeeupon a decision of the Madras High Court in thecase of Arunachella Chettiar v. Ramaih Naidu, ILR30 Mad 109 (A), where the learned Judges observedat page 112:

'It is also a widespread practice to make the monthly letting to coincide with the Calendar month. Where then we find an entry takes place in the middle of a calendar month and rent is payable from the date of entry, but the parties agree that the rent is payable at the end of the calendar month, we think the reasonable inference is that they intended that the monthly tenancy should coincide with the calendar month'.

It seems to us that this pronouncement cannot be taken as an enunciation of any principle of law, because it is based upon a judicial recognition of a 'wide spread practice', and we are not prepared to accept it as a proposition of law.

10. In the case of Benoy Krishna Das v. Salsiccioni , there was a provision in the lease under which the tenant agreed to pay monthly rent on or before the 7th clay of the month succeeding the month for which it was duo, and relying upon that provision, it was argued that the lease expired on the last day of the Calendar month to the exclusion of Section 110 of the Transfer of Property Act. But the Privy Council repelled that argument in the following words,

'It is clearly not an agreement expressly excluding Section 110, because it has nothing to do with fixing the period covered by the term. It merely provides for the payment of rent'.

These observations, in our opinion, justify the conclusion that in the case of a monthly tenancy the month of the tenancy may be different from the month according to which rent is realised.

11. Alteration of the month of a tenancy may be proved either by direct evidence by proving a new agreement by which the month of the original tenancy was expressly altered or by circumstantial evidence showing that whereas formerly rent used to be realised from the middle of one month to the middle of another, subsequently the rent for broken period of this calendar month was either paid or adjusted and rent was paid from month to month according to English Calendar. If rent used to be realized from month to month according to English Calendar both during the period when the monthly tenancy ran from the middle of one month to the middle of another and during the period when the monthly tenancy coincided with English Calendar month, the mode of realisation of rent is inconclusive. Unfortunately the true legal position was not realised by the parties in the Courts below with the result that neither the plaintiff nor the defendant adduced material evidence on the point. The plaintiff has not adduced any evidence to prove how the rent for the broken period of a calendar month was adjusted on the date of the creation of the alleged new tenancy on April 1, 1946, nor has the defendant adduced any positive evidence to prove its case that even when its tenancy admittedly used to run from the middle of one month to the middle of another, rent used to be realised according to English Calendar month. For these reasons, we have reached the conclusion that the case should go back to the Lower Appellate Court for a reconsideration of the point after giving the parties a reasonable opportunity of adducing evidence on the question when and how the month of the defendant's original tenancy came to be altered, if at all, as alleged by the plaintiff

12. Two other points which have been raised by Mr. Sen in support of the appeal need not, however, detain us long. The first of these is to the effect that assuming that a new tenancy came into existisnce with effect from April 1, 1946, that tenancy continued up to the midnight of the first day of each Following month, and a notice to quit requiring the defendant to vacate on the expiry of a calendar month is bad; in order to be a good notice, it should have asked the defendant to vacate on the expiry of the first day of the following month. Reliance was placed upon the decisions of this Court in the cases of Sushil Chunder v. Birendrajit : AIR1934Cal837 , and Charu Chandra v. Bankim Chandra, 42 Cal WN 1115 (D). Both these cases, however, were cases of written leases for a term to which Section 110 of the Transfer of Property Act applied. There can be no doubt that in the case of a lease for a term governed by Section 110 of the Transfer of Property Act, the date of the commencement of the lease is to be excluded in calculating the period of the lease which must be held to continue up to anniversary of the date of commencement. See . It is, however, now established that Section 110 of the Transfer of Property Act applies only to leases for a term and has no application to monthly tenancies. In the case of Calcutta L. and S. Co. v. Victor Oil Co. : AIR1944Cal84 , it has been held by Rau and Mukherjea, JJ. that Section 110 of the Transfer of Property Act does not apply to a tenancy from month to month, though the learned Judges differed on the question whether that Section applies only to written leases, or applies to written as well as oral leases, Mukherjea, J. holding the former view and Rau, J. holding the latter. The principle that Section 110 of the Transfer of Property Act does not apply to a monthly tenancy has also been laid down by Gentle, J. in the case of Usharani v. The Research Industries Ltd. 50 Cal W N 461 (F). In both these cases it has been laid down that when a monthly tenancy commenced on the first day of a month it can be properly and validly determined by service of a notice expiring on the last day of a subsequent month. This point, therefore, that the notice is bad even if the monthly tenancy commenced on the 1st day of April, 1946, is without any substance and must be overruled.

13. The other point raised by Mr. Sen is about reasonable requirement. His argument is that though the requirement of the plaintiff may, upon the findings arrived at by the Courts below, be said to be bona fide it cannot be reasonable, because the plaintiff has not obtained the permission of the Municipal authorities and the State Government to establish a printing press. It has been found by both the Courts below that the plaintiff was a well known publisher of Dacca and used to own two printing presses which were located in his own house. Those prasses, however, have not been requisitioned by the Government of East Pakistan. The plaintiff has been found to have spent the greater part of his life in publishing business and even after migrating to West Bengal the plaintiff has been carrying on his business by publishing books through printing presses belonging to others. For these reasons both the Courts below have held that the plaintiff reasonably requires the premises for starling a printing press of his own. It has also been found that the plaintiff has no other place where he can establish his press. These findings have not been challenged before us, but it is urged that it is not likely that the plaintiff will get the license or the permission from the authorities concerned under Section 6 of the Factories Act or Section 436 of the Calcutta Municipal Act in view of the fact that the premise are situated in the heart of the town. We are, however, not prepared to hold against the plaintiff on this speculative and hypothetical ground. The Lower Appellate Court has pointed that no rule either under the Calcutta Municipa1 Act or the Factories Act was shown by the defendant which prohibited the running of a printing press in the area where the premises are located: A bona fide requirement of the present description is prima facie reasonable, unless it is shown that the fulfilment of the requirement is contrary to any law or any rule having the force of law. To require the plaintiff to get a license or permission before obtaining vacant possession will be to ask him to do something which is impossible because no permission or license can be granted by the authorities before the plaintiff satisfied them that he has in his own possession a room or rooms where he proposes to establish his press. On a comparison of the comparative advantage & disadvantage the Court of appeal below has come to the finding that it will be more disadvantageous to the plaintiff who owns the disputed premises to go about the streets to rent a house for his printing press than to the defendant who is only a monthly tenant. We see no reason to differ from this finding. This point is also without substance.

14. In the result, we allow the appeal on the first ground urged before us and set aside the decrees made by the Courts below and direct that the case should be remanded to the Court of appeal below for the reconsideration of the question whether the appellant's tenancy was validly determined by the notice to quit. In considering that question the Lower Appellate Court will have to determine the month of the defendant's tenancy upon the materials already on the record and such further materials as may be produced both by the plaintiff and by the defendant It must be understood that the rehearing will be confined to this point only, and no other point will be allowed to be raised by the parties.

15. With regard to costs, we direct that the parties will bear their own costs up to this stage. Further costs will abide the result.

Sarkar, J.

16. I agree.


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