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Pronati Mitra Vs. Sachindra Nath Chatterjee - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberSecond Appeal No. 1954 of 1968
Judge
Reported inAIR1977Cal409
ActsCode of Civil Procedure (CPC) , 1908 - Section 100 - Order 6, Rule 17; ;West Bengal Premises Tenancy Act - Sections 13(6) and 106
AppellantPronati Mitra
RespondentSachindra Nath Chatterjee
Appellant AdvocatePromotha Nath Mitter, Adv.
Respondent AdvocateRanajit Kumar Banerjee, Adv.
DispositionApplication allowed
Cases Referred(Surya Properties Private Ltd. v. Bimalendu Nath Sarkar). It
Excerpt:
- .....in title suit no. 483 of 1963.2. the plaintiff filed the suit on the ground that she requires the suit premises for her own personal use and occupation. the defendant contested the suit 3. the learned munsif found that the plaintiff failed to prove that she requires the said premises for her own use and occupation. in that view of his finding the suit was dismissed. the plaintiff preferred an appeal before the learned additional district judge and the learned additional district judge dismissed the appeal. being aggrieved, the present appeal has been filed.4. during the pendency of this appeal on september 20, 1976 an application was filed for amendment of the plaint which became necessary in view of the decision of b. banerjee v. anita pan, reported in : [1975]2scr774 . the application.....
Judgment:

N.C. Mukherji, J.

1. This appeal is directed against the judgment and decree dated 30th January 1968 passed by Sri P. K. Banerjee, Additional District Judge, 7th Court at Alipore in Title Appeal No. 1000 of 1967 affirming those dated 4th May, 1967 passed by Sri R. K. Ghatak, Munsif, 2nd Court at Sealdah in Title Suit No. 483 of 1963.

2. The plaintiff filed the suit on the ground that she requires the suit premises for her own personal use and occupation. The defendant contested the suit

3. The learned Munsif found that the plaintiff failed to prove that she requires the said premises for her own use and occupation. In that view of his finding the suit was dismissed. The plaintiff preferred an appeal before the learned Additional District Judge and the learned Additional District Judge dismissed the appeal. Being aggrieved, the present appeal has been filed.

4. During the pendency of this appeal on September 20, 1976 an application was filed for amendment of the plaint which became necessary in view of the decision of B. Banerjee v. Anita Pan, reported in : [1975]2SCR774 . The application was allowed and paragraph 6-A was incorporated in the plaint. Additional issues were also framed. Another application was filed on 9th of August 1977 for further amendment of the plaint for the purpose of taking into consideration some subsequent events which happened during the pendency of the second appeal. This application is very much opposed by the respondent. In this application it is stated that in the month of June 1976 the petitioner has come to know that in the year 1974 during the pendency of the second appeal the opposite party has sublet a portion of the suit premises to one Satyendra Kumar Roy, who is running a business there named and styled as 'M/s. Innervias View X-Ray & Electro Therapy' and has taken out a trade licence from the Calcutta Corporation for running the said business in the suit premises. The petitioner states that the said subletting was done without the knowledge and prior consent of the petitioner and as such the opposite party has disentitled himself to the protection of the West Bengal Premises Tenancy Act and rendered himself liable to ejectment. It has further been stated that in the interest of justice and in order to shorten the litigation and avoid multiplicity of proceedings it is necessary for the petitioner that the plaint should be amended by inserting two new paragraphs therein alter paragraph No. 6-A. Those new paragraphs have been numbered as 7-A and 7-B in the petition. Previously a similar application was filed and while disposing of the application on July 7, 1977 it was stated that the other application will be considered at the time of hearing of the appeal. The said application was opposed by the respondent and an affidavit of the respondent dated 2nd February 1977 and an affidavit of S. K. Roy dated 1st of March 1977 were filed: In those affidavits the story of subletting has been completely denied. It is not now necessary for me to decide whether in fact the respondent sublet the premises as alleged by the appellant. I am only required to consider whether such an application for taking into consideration the subsequent events of subletting can be allowed at this stage.

5. Mr. Promotha Nath Mitter, learned Advocate appearing on behalf of the appellant, in support of his contention first refers to a decision reported in : AIR1973Cal448 (Tinkari Das v. Jamuna Bala Dasi). In this case it was a suit for recovery of possession of leased property on eviction of tenant on the ground of forfeiture of property. It was held that the Court could allow the amendment to add the additional ground of determination of lease by efflux of time. It was further held that for shortening the litigation and for ends of justice the Court is entitled to take into consideration the subsequent events even if there was a change in the ground of eviction where the nature and character of suit, which was for recovery of possession of the suit property on eviction of the defendant was not in any way affected.

6. Mr. Ranjit Kumar Banerjee, learned Advocate appearing on behalf of the respondent, submits that the facts of this case are completely different. Here forfeiture of property by efflux of time could not be disputed by the defendant and as such the Court could take notice of such an event. But the case will be different where the alleged subsequent event is very much challenged by the other side.

7. The next case relied on by Mr. Mitter has been reported in : AIR1977Cal108 (Ayesha Khatoon v. Durga Sahaya). It is a Bench decision and their Lordships laid down the same principle as in the case referred to above. Mr. Mitter very much relies on a decision reported in (1977) 4 Cal HC (N) 394 (Dr. R. D. Anklesaria v. Mrs. Kamala Roy). This was a suit for ejectment under West Bengal Premises Tenancy Act on the ground of building and rebuilding. During the pendency of the suit the plaintiff made an application for amendment of the plaint by inserting other grounds. e. g. sub-letting, using the premises for a purpose other than residential for which it was let out. The application for amendment was allowed. The defendant came up to this Court challenging the order on the ground that the proposed amendments would change the cause of action and nature of the suit and the subsequent events could not be permitted to be introduced, if such introduction results in changing the nature and character of the suit or the cause of action on which the suit is based. Their Lordships after considering several decisions held that 'under the West Bengal Premises Tenancy Act a tenant whose contractual tenancy had been determined by a valid notice to quit but against whom no decree for eviction has been passed remains a tenant under the Premises Tenancy Act. Consequently a statuory tenant who continues to be the tenant under the Premises Tenancy Act because of special definition of the tenant is liable to be evicted under the said Act if he commits any illegal act of subletting and/or wrongful user of the suit premises within the meaning of Section 13 of the Premises Tenancy Act. In this context, a tenant governed by the Transfer of Property Act simpliciter and a tenant governed by the West Bengal Premises Tenancy Act stand on altogether different footing. In the former case, after the determination of the contractual tenancy the tenant ceases to be a tenant any further; as such raising of unauthorised structure by such person cannot attract the provisions of Section 108 of the Transfer of Property Act and no suit for eviction of a tenant for such wrongful act can be filed. But in the case of a statutory tenant under the West Bengal Premises Act, an act of sub-letting attracts the provisions of Section 13 of the Premises Tenancy Act and such tenant is liable to be evicted on the ground of subletting even if such sub-letting is made after the determination of contractual tenancy. Accordingly, the nature and character of ihe suit namely the suit for eviction of a tenant is not changed in the case of a tenant governed by the Premises Tenancy Act'. It was further held that 'In the circumstances of the case, the Court cannot ignore the subsequent events on the statutory principle of avoiding multiplicity of legal proceedings, shortening the course of litigation and achieving the ends of justice.'

8. Mr. Mitter next refers to a decision reported in : [1974]3SCR101 (Sikharchand Jain v. Digamber Jain Praband Karini Sabha). It was held that 'Ordinarily, a suit is tried in all its stages on the cause of action as it existed on the date of its institution. But it is open to a Court (including a court of appeal) to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances to do complete justice between the parties and to shorten litigation.'

9. Mr. Mitter also refers to a decision reported in : [1975]3SCR958 (Pasuputeti Venkateswarlu v. The Motor & General Traders). It was held that 'Where during the pendency of a proceeding under Rent Control Legislation by the landlord for permission to evict the tenants, a subsequent event in the facts of the case takes place which has a material bearing on the landlord's right to evict, the approach of the High Court in revision, in taking cognizance of the new development cannot be said to be wrong or illegal'. Mr. Mitter submits that if this amendment be allowed then it will not in any way change the cause of action. The suit was brought for eviction by determining the tenancy after serving notice according to law. It was not necessary for the landlord to state the grounds of eviction in the notice for ejectment. The cause of action for the suit will remain unchanged and that being so, in order to shorten litigation and for doing justice the amendment must be allowed.

10. Mr. Banerjee contends that a subsequent event which is admitted can be taken into consideration by the court, but a fact which is very much challenged should not be allowed to be added by the plaintiff. The proposed amendment will change the nature of the suit completely. The suit is one for reasonable requirement, that having failed the plaintiff now cannot add a ground in the plaint which is said to have taken long after the institution of the suit and long after the decrees of the courts below were passed. Mr. Banerjee in support of his contention refers to several decisions. He first cites to a decision reported in 20 Cal WN 1099: (AIR 1917 Cal 716) (Nuri Mian v. Ambica Singh). It was held : 'The decree in a suit should ordinarily conform to the rights of the parties as they stood at the date of its institution. But there are cases when it is incumbent upon a Court of Justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made. This principle will be applied where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate or that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties'. The same principle has been laid down in (1907) 6 Cal LJ 74 (Ram Ratan Sahu v. Mohant Sahu), 20 Cal LJ 107 : (AIR 1915 Cal 103) (Rai Charan Mandal v. Biswa Nath Mandal) and 34 Cal WN 634 : (AIR 1931 Cal 45) (Sm. Balak Bala Dassi v. Jadu Nath Das) cited by Mr. Banerjee. I do not see how the principles of law enunciated in the above cases support Mr. Banerjee's contention.

11. Mr. Banerjee next relies on a decision reported in : [1969]1SCR254 (S. Rajagopal v. C. M. Armugam). In this case before the Supreme Court request was put forward during the hearing of the appeal to direct the production of a batismal register. Their Lordships were of opinion that there was no justification under Order 41, Rule 27 of the Code for summoning it at this stage, particularly because even if that register is brought, a lot of oral evidence would have to be recorded in order to have the register properly proved and to give an opportunity to the party, against whom inferences follow from it, to meet those inferences. In the circumstances, the prayer was refused. Mr. Banerjee submits that in this case also if the amendment be allowed then the case will have to be heard afresh and new evidence will have to be adduced. If the plaintiff's allegation is correct that the defendant has sublet without the consent of the plaintiff then the plaintiff can very well bring a fresh suit for ejectment. Mr. Mitter joins issue and contends that there is absolutely no reason why the plaintiff will be compelled to bring another suit if the matter can be decided in this suit and that would avoid multiplicity of proceedings, shorten litigation and would meet ends of justice.

12. Mr. Banerjee next relies on a decision reported in ILR (1969) 1 Cal 582 (S. B. Sen v. Tejendra Chandra Bhowmik). In this case it was held: 'Sub-letting need not subsist till the date of institution of the suit, it is sufficient if the fact of sub-letting without the written consent of the landlord is proved'. It was further held: 'Sub-letting was found concurrently by the Courts below which cannot be interfered with in a second appeal'. Mr. Banerjee submits that the question whether the plaintiff reasonably requires the premises or not has been concurrently found by the courts below against the plaintiff and that being so, that question cannot be made in this appeal. As has already been stated at the present moment I am not hearing the appeal on merits. I am now dealing with the application filed by the plaintiff for further amendment of the plaint seeking to add a ground of subletting. Mr. Banerjee also relies on a Special Bench decision reported in : AIR1964Cal1 (Surya Properties Private Ltd. v. Bimalendu Nath Sarkar). It has been held in this case that 'It is not necessary to mention in a notice under Section 13(6) the ground or grounds of ejectment for which a suit is to be instituted for recovery of possession. There is, however, nothing to prevent the landlord from setting out such grounds in the notice. The notice, however, will not be a notice of such grounds'. This case without helping Mr. Banerjee rather helps Mr. Mitter. A tenancy is determined by serving a notice under Section 13 (6) read with Section 106 of the Transfer of Property Act and as soon as a tenancy is determined, the cause of action for the suit arises, it has been clearly laid down that it is not necessary to state the grounds of ejectment in the notice. In such circumstances, if any ground is added subsequently that cannot change the cause of action or the nature of the suit. The suit remains one for eviction as it was at the date of commencement of the suit. Taking into consideration the principles of law enunciated in the decisions referred to above I am of opinion that in the facto and circumstances of the present case the Court is not prevented even in a second appeal to take into consideration the fact of sub-letting which, according to the plaintiff, has taken place during the pendency of the appeal. I, therefore, allow the application filed by the appellant on 9-8-77.

13. The paragraphs marked as 7-A and 7-B in paragraph 7 of the petition be added in the plaint as paragraphs 6-B and 6-C. The plaintiff will have to prove the fact of sub-letting by adducing evidence, The defendant may also adduce evidence to disprove the fact. The plaintiff is also required to adduce evidence for the amendment which has already been allowed on her application dated 20th September 1976. For the purpose of adducing fresh evidence I think that the case should be sent back to the learned Munsif. The appeal is kept pending. Let the records go down to the learned Munsif who will give the plaintiff an opportunity to adduce fresh evidence on the question whether the plaintiff has any other reasonably suitable accommodation in Calcutta besides the suit premises and whether the defendant in 1974 has sublet a portion of the suit premises to one Satyendra Kumar Roy. The defendant will also be permitted to challenge these facts by adducing evidence. After recording such evidence as may be adduced by the parties the learned Munsif will send the same to this Court. As the matter is pending for a long time, the learned Munsif is requested to send the report as early as possible.


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