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Bimalendu Bhusan Das Vs. Firm Mitra and Ghosh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberFirst Appeal No. 760 of 1968
Judge
Reported inAIR1973Cal515
ActsTransfer of Property Act, 1882 - Section 106; ;West Bengal Premises Tenancy Act, 1956 - Section 13(1)
AppellantBimalendu Bhusan Das
RespondentFirm Mitra and Ghosh
Appellant AdvocateDilip Kr. Banerjee, Adv. for ;Ganga Narain Chandra, Adv.
Respondent AdvocateN. Mitter and ;Probhat Kumar Mukherjee, Advs.
DispositionAppeal allowed
Cases Referred(Sailendra Nath Ghosh v. Sm. Ena Dutt). It
Excerpt:
- .....was that ground for eviction pleaded does not satisfy the requirement of section 13 of the premises tenancy act, 1956.4. on the first of these points the learned trial judge found upon evidence that there had been changes brought about in the extent of the tenancy in occupation of the defendant on 20th september, 1965 immediately on purchase of the property by the present plaintiffs, so much so that a portion of courtyard with the structure on it and the old bathroom were taken possession of by the landlord and a new bathroom was constructed and given to the possession of the tenant. the rent payable by the tenant remained the same that was being paid by the tenant to the old landlord, that is rupees 45/- per month. the rent for 1st to 19th of september, 1965, was paid to the old.....
Judgment:

Amaresh Roy, J.

1. Appellant Bimalendu Bhusan Ghose is a tenant in a portion of Ground floor of premises No. 65 Keshab Chandra Sen Street, Calcutta. He has been a tenant there for about 25 or 26 years under the previous owner, and occupied entire northern block of the ground floor including the courtyard and shed therein at a monthly rental of Rs. 45/-. The plaintiffs, a firm Mitra and Ghosh represented by the partners, purchased the property in 1965. Old rent of Rs. 45/- per month continued to be paid to the plaintiffs but a portion of the old tenancy namely the old bathroom and the structure in the courtyard, was taken possession of by the landlord and a new bathroom was constructed and was given to the tenant. That was by mutual arrangement arrived at on 20th of September, 1965. Trouble arose when the plaintiffs set up a printing press in the structure in the courtyard and the machine started operating in 1966. Regarding the noise caused by the machine the defendant raised protests. The landlord served a notice to quit and termination of the tenancy in July 1966 demanding delivery of possession on the expiry of last day of August 1966 and then instituted the present suit on 20th September, 1966. The notice (Ext. 1) was issued by a lawyer on behalf of his clients, Mitra and Ghosh, and ground for eviction mentioned in the notice was that the landlord reasonably requires the portion in occupation of the tenant 'for its own use and occupation as well as occupation of its 'karmacharies'.

2. The tenant contested the suit mainly on two grounds first, that a new tenancy was created on 20th September, 1965 under the new landlord at the old rent of Rs. 45/- per month. The month of tenancy was therefore from 20th of one month to 19th of following month. Therefore the notice to quit expiring with the last day of August is not a notice expiring with month of tenancy and should be held to be insufficient to terminate the tenancy under Section 106, T. P. Act.

3. The second ground of contest raised by defendant was that ground for eviction pleaded does not satisfy the requirement of Section 13 of the Premises Tenancy Act, 1956.

4. On the first of these points the learned Trial Judge found upon evidence that there had been changes brought about in the extent of the tenancy in occupation of the defendant on 20th September, 1965 immediately on purchase of the property by the present plaintiffs, so much so that a portion of courtyard with the structure on it and the old bathroom were taken possession of by the landlord and a new bathroom was constructed and given to the possession of the tenant. The rent payable by the tenant remained the same that was being paid by the tenant to the old landlord, that is Rupees 45/- per month. The rent for 1st to 19th of September, 1965, was paid to the old landlord and rent from 20th to 30th September was paid to the present plaintiff. Thereafter rent for full months have been paid under receipts according to English Calendar month. He also noticed the difference in the description of the tenancy appearing between the rent receipts granted by the old landlord describing it as 'northern portion of the ground floor', and those granted by the plaintiffs as 'six rooms with bath and privy of the northern portion in the ground floor.'

5. But on those facts the learned Judge of the City Civil Court held that it did not appear to him that the parties intended thereby that a new tenancy would be brought into being and the nature of modification does not import a new demise. The reasons that weighed with the learned Judge to hold that view have been expressed in the judgment in these terms:

'The bulk of the subject-matter of the tenancy having remained constant, a change in the amenities such as having a new bathroom in place of an old one, does not, in my opinion, create a new tenancy by implied surrender of the old tenancy.'

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'Looking at the substance of the matter, it is not possible to hold that the old tenancy was put an end to by implied surrender and a new tenancy was created.'

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'It is well known that the devolution of the interest of the landlords whether by ordinary succession or by transfer inter vivos, does not ipso facto operate to create any new tenancy.'

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'There is nothing on record to show that the parties had agreed that the tenancy month should be from the 20th of one month to the 19th of the next month.'

6-7. Mr. Banerjee appearing in support of the appeal has contended that the learned Judge's finding is wrong and each of the reasons for that finding is erroneous. After considering the arguments advanced by Mr. Mitter for the respondents in his endeavour to repel Mr. Banerjee's contentions I have reached the conclusion that upon the facts appearing in the evidence which the learned Trial Judge has correctly and fairly ascertained, his conclusion on the resultant effect in fact and legal effect thereof is wrong and reasons for that conclusion are erroneous. Mr. Banerjee's contention should therefore prevail.

8. It has to be remembered that relationship of landlord and tenant is established contractually and their mutual rights and liabilities under the law depend on privity of contract. When either of the parties transfers his interest in the property, a new privity of contract need be established between the parties to establish a relationship of landlord and tenant. That happens when a purchaser of the landlord's interest accepts the occupier of the tenanted portion as a tenant under him by accepting rent, or when the tenant attorns to the purchaser by paying rent to him as a tenant. Acceptance of rent and attornment establish the relationship by privity of contract spelled out from those acts of the parties. In the event of succession by inheritance of the interest of either landlord or tenant, the successor inherits the property with the rights and liabilities under the contract of tenancy and the privity of the contract continues, though there may not be any act of parties.

9. In the present case that privity was established on 20th September, 1965, in respect of an altered portion left with and given to the occupation of the tenant and new relationship of landlord and tenant was established. Commencement of that relationship between the parties is 20th September, 1965 and that is emphasised by the fact that the present landlord accepted rent from 20th September, 1965. Common case of the parties is that the tenancy was a monthly tenancy according to English Calendar. The fact that subsequent monthly rents were paid for the whole months of that calendar does not alter the inescapable fact that the monthly tenancy commenced on 20th September. The month of tenancy was therefore 20th of each month to 19th of following month that being so notice that expired on 31st August is not complying with Section 106 of the T. P. Act and was ineffective to terminate the tenancy, which alone could give the plaintiff cause of action for the suit for eviction. On this ground alone the suit must fail.

10. The other ground urged by Mr. Banerjee for appellant is also substantial. The ground for eviction of the tenant as elaborated in the plaint is that plaintiffs' firm has a business of booksellers and publishers in a room at No. 10, Shyama Charan Dey Street, Calcutta. They have office in 4 rooms at 84-A, Mahatma Gandhi Road, Store room at 7, Tamar Lane and a godown at 12, Pat-war bagan Lane.

11. The plaintiff has installed the printing machine in a temporary shed at the courtyard. The machine is a costly one and due to the temporary shed the costly machine was getting rusted and other mechanical difficulties, as it was exposed to sun, air and rains.

12. The plaintiffs have stated in the plaint.

'In order to solve the shortage of accommodation and in order to meet financial strain on the business, the plaintiff purchased the Premises No. 65, Keshab Chandra Sen Street to shift the office, the printing and publishing business and also for storing books at the suit premises'.

'The plaintiff requires at least 2 rooms on the ground floor for accommodation of the printing machine.'

'The contract of service with Karmacharies is to provide accommodation. The plaintiff has got as many as 32 Karmacharies and at present he has to provide them one room, only, at the ground floor, which is under plaintiff's possession and the demand for further accommodation has been highly voiced and failing which one fine morning the door of the business shall be closed. Now-a-days papers are dear and supply of papers are irregular and without storing them beforehand, the business could not be running smoothly and efficiently.'

'The plaintiff may, also, be relieved of the financial liability to the extent of Rupees 285/-, which have been paid as monthly rent, if, the plaintiff could have the possession of the said portion.'

13. Regarding these contentions of the plaintiff the learned Trial Judge rightly pointed out that there is no denial of this aspect of the matter by the defendant, who only contended that the tenancy held by the defendant would fall far short of the total accommodation required by the plaintiffs for those purposes. That contention has been, rejected by the learned court below on the reasons mentioned in the judgment which may be summarised as:--

(a) This is no answer to the plea of the plaintiff's requirement.

If this proves insufficient they can proceed against the other tenants.

(b) It is beyond doubt that their business is scattered at so many places.

(c) Their anxiety to shift some of their offices and godowns to the suit premises from the rented premises can be well understood.

(d) They have made out a case of genuine requirement in terms of Section 13(1)(f).

(e) Trade Licence in the name of three persons including one who is not a plaintiff does not militate against the plea of bona fide requirement.

(f) The premises in suit are required reasonably by the plaintiffs in connection with their business.

14. Mr. Banerjee for the appellants relies on the provisions in Section 13 (1) of the Premises Tenancy Act, 1956. Clause (f) in that Section as it stood at the date of the suit has been amended and recast into Clauses (f) and (ff). Relevant provision for our purpose is what is now Clause (ff). In that clause the words 'the landlord or such person is not in possession of any reasonably suitable accommodation' have been added which were not in Clause (f) as it stood before that amendment. But reasonable requirement was insisted by that unamended Clause (f) also.

15. I have held that the words now added in Clause (ff) were relevant consideration even before Clause (f) was amended and the legislature added those words in Clause (ff) only by way of abundant caution and legislative confirmation of decisions of this Court holding that for establishing the reasonableness of requirement plaintiffs needed to show that they had not suitable alternative accommodation in their possession. Otherwise the requirement pleaded could not be held to be reasonable at all. True, for judging that reasonableness, financial aspect is also a relevant consideration but cannot be made a decisive or sole consideration. In that view I do not consider the question of validity of retrospective effect of the amendment sought to be given by Section 13 of the Amending Act (Act XXXIV of 1969) to be relevant for the purpose of decision of this case.

16. Reasonableness of the requirement pleaded by the plaintiffs would make the question of suitable accommodation existing in his possession an essential and relevant consideration if the case is considered under Clause (f) of Sub-section (1) of Section 13 as it stood before amendment or if the case is considered under Clause (ff) as it now stands after amendment, which came into force after the decision of this suit in the trial Court but during the pendency of the appeal in this Court. Whether, that amendment is retrospective as Section 13 of the Amending Act seeks to make it or that provision is ultra vires and the amendment is not retrospective as was held by a decision of Division Bench of this Court reported in : AIR1971Cal331 , (Sailendra Nath Ghosh v. Sm. Ena Dutt). It was told that the question is awaiting decision in some other litigations and for that reason I deferred delivering this judgment for a length of time since the conclusion of hearing of this appeal. No decision on the point has been brought to notice upto now and on deliberation I have reached the conclusion that on the facts of the present case, retrospectivity of the amendment or otherwise has no bearing.

17. The learned Trial Judge has held that

'Even if the entire accommodation at 65, Keshab Chandra Sen Street, be insufficient the plaintiffs can have some of their offices and Godowns outside in rented premises, but their anxiety to shift some of their offices and Godowns to the suit premises from the rented premises can be well understood. They have made out a case of genuine requirement, in terms of Section 13 (1) (f) of the W. B. P. T. Act, 1956.' and that 'a business in publications and agencies and purchase and sale of books and in printing has necessarily to be carried on in some premises and such a business postulates and certainly does not exclude acquisition of house for location of such business.'

18. In my view, those findings are not based on sufficient material in evidence and their proper consideration, nor are those findings sufficient to enable the Court to pass a decree for eviction of the tenant on the ground of reasonable requirement of the landlord for his own occupation under Section 13 (1) of the Premises Tenancy Act. The relevant provision insists on 'reasonable requirement' and not 'genuine requirement' or 'bona fide requirements'. For considering reasonableness of the requirement pleaded by plaintiff it is very material consideration if the accommodation existing in the possession of the plaintiffs are reasonably sufficient for the purposes of their business of Book Sellers and Publishers. It is common knowledge that in the City of Calcutta there is definite concentration of such trade in the locality of Shyama Charan Dey Street Where the plaintiffs have their office and shop. It is also well known that essential operatives of business of publishers that the Daftaries and book binders are to live and work in the locality of Patwarbagan Lane. For those reasons all Book Sellers and Publishers reasonably desire to have their offices and business shops in the locality of Shyama Charan De Street and their godowns in the locality of Patwarbagan Lane to put the printed forms within easy reach of bookbinders to work in day and night to make the books ready for publication and sale. These are so loud and notorious facts that those can and should be taken judicial notice of by the Court for appreciating the evidence given in the case and proper decision according to the relevant provision in the Act. The learned trial Judge has not devoted any consideration to that aspect. On devoting consideration to the evidence in the case for proper appreciation, I hold that the finding of the trial court in favour of the plaintiffs cannot be sustained. The plaintiffs have failed to discharge the onus to establish that accommodations which are admittedly in their possession in rented premises are not reasonably sufficient for the purposes of their business of booksellers and publishers. Calcutta is a crowded city both for business and residential accommodation. Every inconvenience or feeling of smallness of space or anxiety to shift from rented premises to property owned by the plaintiffs may be 'genuine' or 'bona fide' and well understood' as held by the learned Trial Judge, but would not make the requirement pleaded reasonable within Section 13 of the Act.

19. Reasonable requirements within the meaning of Section 13 in my view is not merely the subjective reasonableness from the stand point of the landlord. But it means objective reasonableness which should be ascertained by considering a subjective effect on the tenant as well along with the subjective requirement of the landlord. In other words by weighing the genuine or real requirement of the landlord with the inconvenience that the tenant will suffer by effect of an eviction decree reasonableness of the requirement of the landlord should be ascertained for its purpose as a ground for eviction. A requirement that only emphasises the benefits intended by the landlord to achieve, be it convenience of business, be it financial gain by cutting down the rent expenses of the landlord or be it the psychological emphasis of concentrating their business in the property owned by the landlord instead of in several premises rented by them, without any consideration to what the tenant will suffer does not in my view satisfy the reasonable requirement within the meaning of Section 13 Sub-section (1) of the Premises Tenancy Act, 1956. By applying that standard I hold that the evidence in the case do not establish that the landlord's requirement is reasonable. For that reason also the plaintiff is not entitled to the decree prayed for.

20. In the result, I allow this appeal, set aside the judgment and decree passed by the Trial Court and dismiss the suit.

21. There will be no order as to costs in this appeal.


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