Calcutta High Court (Appellete Side)
Sri Prem Chand Shaw Alias Jaiswal vs Sri Sanjoy Singh on 10 August, 2021
10.08.2021
Item No. 22
Ct. No. 04
PG
S.A. 40 of 2016
Sri Prem Chand Shaw alias Jaiswal
Vs.
Sri Sanjoy Singh
Mr. Buddhadev Ghosal
Mr. Souri Ghosal............for appellant/plaintiff
Mr. Ghosal, learned advocate appears on
behalf of plaintiff and presses for admission of the
appeal on a question of law as to whether in a suit for
eviction of trespasser, the lower appellate Court while
reversing the decree could do so upon relying on
evidence to hold that the security deposit was not
refunded, there being no pleading to that effect in the
written statement. He relies on judgment of Privy
Council in Siddik Mahomed Shah vs. M.T. Saran
reported in (1930) AIR (PC) 57(1) for saying that no
amount of evidence can be looked into upon a plea,
which was never put forward.
For purpose of hearing the appeal regarding
its admission, Mr. Ghosal hands up copies of the
plaint and written statement. We find that the suit
was for eviction of trespasser, recovery of khas
possession and consequential reliefs. Defendant in
his written statement had said in paragraphs 6 and 7
as follows:
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"6. That the allegations made in
paragraph '1' and '2' of the plaint are matter of
documents and this Defendant without admitting
the same put the plaintiff to proof thereof. On the
other hand this Defendant is still in possession of
the suit property as tenant and regularly is
depositing his rent in the Court of Rent Controller
of Howrah.
7. That the allegations made in
paragraph '3' of the Plaint are totally false and
manufactured one for the purpose of this false
suit and hereby categorically denied by this
Defendant and the plaintiff is put to strict proof
thereof. No such alleged notice ever tendered and
reached to the Defendant and the alleged
endorsement "left out of Station" was procured by
the Defendant in collusion with the postal peon
and the said alleged notice, if any, is not valid,
legal and sufficient."
Issues framed in the suit were:
"1. Is the suit maintainable in its
present form either in law or in fact ?
2. Has the plaintiff any cause of action
to file the suit ?
3. Is the suit barred under Section 34 of
the Specific Relief Act, or by any other Law for the
time being in force in the country?
4. Is there exist any relationship of
landlord and tenant in between the parties?
5. Is the defendant a defaulter in
payment of rent?
6. Is the plaintiff entitled to get the
decree as prayed for ?
7. To what other relief, if any, is the
plaintiff entitled to get?"
Issue nos. 4 and 5 obviously were framed based upon
the written statement case.
We have been through both the judgments.
Appellant/plaintiff had sued on termination of
agreement, entered into in year 2004, to run till year
2007. The agreement was regarding defendant's
occupation of the demise. There is evidence that this
was the third agreement. A certain amount of money
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was taken upfront as security, which the lower
appellate Court found, had not been refunded.
If we look at the agreement as a lease for
term of three years, section 107 in Transfer of
Property Act, 1882 says that it can only be made by a
registered instrument. Admittedly, the document was
not registered. Registration Act, 1908 bars receipt of
the agreement, compulsorily registrable, as evidence
of the transaction. In that context, defendant's
pleading of tenancy would require a decree for
eviction to be granted only in a suit for eviction of
tenant on one of the grounds available for eviction.
However, the trial Court decreed the suit for eviction
of trespasser by answering the issue regarding
tenancy in favour of plaintiff.
The lower appellate Court found against
plaintiff, as would appear from, inter alia, passage
therefrom extracted below:
"This observation of the Ld. Trial court
in my view is of little value when in cross-
examination PW-1 himself has admitted the
fact that two agreements were executed by
him and in between period there was no 3rd
agreement though he accepted rent from the
tenant month by month. In view of such
admission by the PW-1 himself non-production
of rent receipt would not have really mattered
in the facts and circumstances of the present
case. It also appears from the cross-
examination that PW-1 has admitted that he
had given notice of ejectment to tenant on
18.10.07 which was received by the
tenant/appellant is again apparent from the
reply dated 21.11.07 but the contentions as
were made in the said reply were never
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refuted by the land-lord/plaintiff/respondent
by way of any letter neither any documentary
evidence was placed before the Ld. Trial Court
to observe as has been done so by the Ld.
Trial Court quoted hereinabove. On the
contrary from the cross-examination of PW-1 it
is again found that he admitted that he did
not give any reply to the said letter of the
tenant as meanwhile he had filed the eviction
suit. It also appeared from the cross-
examination of PW-1 that the land-
lord/respondent had knowledge of the fact
that tenant/appellant was depositing rent
before the Rent -Controller."
Having said so, the lower appellate Court went on to
reverse the decree by saying as follows:
"In my considered opinion the
judgement and decree so passed against the
defendant/appellant is not tenable in the eye
of law as well as in the facts and
circumstances that speaks loudly against the
conduct of the land-lord/respondent who
having failed to comply with his part of the
agreement of refunding the security deposit
cannot approach the court of law, seeking
justice in unclean hands.
The appeal thus succeeds."
Both the Courts below did not address
controversy between the parties by applying
provisions in the 1882 Act or West Bengal Premises
Tenancy Act, 1997. Having gone through both the
judgments and pleadings in the plaint and written
statement, we do not find any substantial question of
law arises, the outcome thereof being that defendant
continues in possession.
SA 40 of 2016 is dismissed. Appellant is at
liberty to find his remedy in law.
(Arindam Sinha, J.)
(Saugata Bhattacharyya, J.)
