Amitava Dutta vs Upendra Baitha And Ors
2023 Latest Caselaw 1612 Cal

                                        1


                      IN THE HIGH COURT AT CALCUTTA
                           Civil Revisional Jurisdiction
                                  Appellate Side



                                     Present:

                  The Hon'ble Justice Biswaroop Chowdhury


                                C.O. 1850 of 2021
                                 Amitava Dutta

                                    VERSUS

                            Upendra Baitha And Ors.




for the petitioner:                         Mr. Dyutiman Banerjee, Adv.

                                            Mr. Navojit Mukherjee, Adv.
for the Opposite Party No.1.                Mr. Sourave Chatterjee, Adv.



Last Heard on: February 24, 2023

Judgment on: March 13, 2023

Biswaroop Chowdhury,J:


             The Petitioner before this court is a landlord/plaintiff in a

      suit for eviction and          is aggrieved by an order dated

      13/04/2021 passed by Learned civil Judge (Jr division) 3rd

      Court at Alipore in Ejectment suit no 177of 2018.


          The case of the plaintiff/petitioner may be summed up thus


          1.

The petitioner/plaintiff is the owner of the suit property

and the predecessor of the defendant was a monthly

tenant under the plaintiff in respect of a garage at a

monthly rental ofRs45/. The father of the plaintiff was

the owner in respect of the suit property and he died

intestate on30-06-1977. At the time of death he left

behind his wife one daughter and the plaintiff being his

son. All of them got 1/3rd undivided share in the suit

property. The plaintiffs mother during her lifetime

executed a Will wherein she bequeathed her entire

movable and immovable properties in favour of the

plaintiff. The plaintiff obtained probate of the said Will

and became owner of two third share of the property. The

mother of the plaintiff during her lifetime inducted a

tenant in the said property, namely Adalat Baitha and

after death of the mother of the plaintiff the plaintiff

became landlord in respect of Adalat Baitha. Adalat

Baitha died on10-04-2009 and according to section2 (g)

of the West Bengal premises tenancy Acts 1997 the right

of tenancy of the three sons of said Adalat Baitha was for

a period of five years from the death of the original tenant

and the right of tenancy ceased beyond that point. The

plaintiff also reasonably requires the suit property and

the defendant was a ha bitual defaulters of rent.

2. The plaintiff sent the defendant notice under section6 of

the West Bengal Premises Tenancy Act 1997 but the

defendant refused to quit, vacate and deliver Khas

possession of the suit property. Hence this suit.

3. The defendant contested the suit by filing written

statement denying all the allegations therein and prayed

for dismissal of the same. The specific case of the

defendant is that after the death of said Adalat Baitha

the wife and three sons of Adalat Baitha inherited the

tenancy right and therefore at present they are the

tenants in respect of the suit property at the moment.

Further the defendant was not a habitual defaulter and

that the plaintiff did not reasonably require the suit

property.

4. In the said suit the defendant filed an application under

section7 (2) of the West Bengal premises tenancy acts

1997, and the plaintiff filed his objection thereto. In the

said application the defendant stated that after death of

said Adalat Baitha the wife and three sons, of Adalat

Baitha inherited the tenancy right and therefore at

present they are the tenants in respect of suit property.

5. That during pendency of the said application the

petitioner has come to know for the first time

on04/02/2021 from the death report filed by the

advocate of the sole defendant that the sole defendant

died on 22/07/2020 in Bihar.

6. According to the petitioner as from section 2 (g) of the

West Bengal Premises Tenancy Act 1997 it can be

understood that the right of tenancy was limited for five

years to the sons of the defendant and after the death of

the original tenant the same stands extinguished

thereafter. Thus the sons of the sole defendant have no

right of tenancy of their own and they have no right to

contest the suit. The plaintiff filed an application under

Order 22 Rule 4A read with Section 151 of the code of

civil procedure praying for appointment of administrator

general or any officer to represent the original defendant.

7. By order dated 13/04/2021 the learned trial court was

pleased to direct the plaintiff to serve notice upon the

legal heirs of the defendant.

The petitioner upon being aggrieved by the order dated

13/04/2021 passed by the learned trial Court has come up

with the present application.

It is the contention of the petitioner that the learned Trial

Court directed the plaintiff to serve notice upon the legal

heirs of the defendant without considering that the sons of

Adalat Baitha are not legal heirs and representatives in

respect of the tenancy of Adalat Baitha after the lapse of five

years from the death of Adalat Baitha. It is further

contended that the legal heirs of the defendant have no

right to contest the suit since they have not inherited the

right of tenancy.

Heard learned advocate for the parties, perused the

petition filed and the materials on record.

The following decision is relied upon by the learned

Advocate for the petitioner.

MonteeDeyVsChandralekhaRoy.Reportedin2010(3)CHN

(CAL) 443.

Learned Advocate for the opposite parties submits that as

his clients have interest in the suit property they should be

impleaded for adjudication of the suit.

Now upon hearing the Learned Advocates and

considering the facts of the case this Court is of the view

that in order to decide whether the opposite parties should

be impleaded in the ejectment suit instituted under section

6 of the West Bengal Premises Tenancy Act 1997 it is

necessary to consider the definition of tenant as provided

under the West Bengal Premises Tenancy Act 1997.

Section 2 (g) of the West Bengal Premises Tenancy Act 1997

defines 'tenant' as follows;

'tenant' means any person by whom or on whose account

or behalf the rent of any premises is or, but for a special

contract would be payable, and includes any person

continuing in possession after termination of his tenancy

and in the event of death of any tenant also includes for a

period not exceeding five years from the date of death of

such tenant or from date of coming into force of this acts,

whichever is later, his spouse, son, daughter, parent and

the widow of his predeceased son who were ordinarily living

with the tenant up to the date of his death, of the tenant as

the members of his family and were dependent on him and

who do not own or occupy any residential premises and[in

respect of premises let out for non-residential purpose his

spouse, son daughter and parent who were ordinarily living

with the tenant up to the date of his death as members of

his family, and were dependent on him or a person

authorised by the tenant who is in possession of such

premises] but shall not include any person against whom

any decree or order for eviction has been made by a court of

competent jurisdiction:

Provided that the time limit of five years shall not apply

to the spouse of the tenant who was ordinarily living with

the tenant up to his death as a member of his family and

was dependent on him and who does not own or occupy any

residential premises:

Provided further that the son, daughter parent or the

widow of the pre-deceased son of the tenant who was

ordinarily residing with the tenant in the said premises upto

the date of death of the tenant as a member of his family

and was dependant on him and who does not own or

occupy any residential premises shall have a right of

preference for tenancy in a fresh agreement in respect of

such premises [on condition of payment of fair rent]. This

proviso shall apply mutatis mutandis to premises let out for

non-residential purpose.

Hence upon plain reading of the section 2 (g) of the West

Bengal Premises Tenancy Act it will appear that on the

death of the original tenant his son or daughter who were

ordinarily residing with the tenant and was dependent upon

him gets the status of a tenant for a period of five years

from the death of the tenant.

In the case of (MonteeDeyvsChandralekha Roy) reported

in 2010(3) CHN (CAL) p 443, the Hon'ble Division Bench of

this Court observed as follows;

8. 'After hearing Mr Sanyal the Learned Advocate appearing

on behalf of the appellants we find that according to the

provisions of the West Bengal Premises Tenancy Act 1997

on the death of the tenant the tenancy devolves upon the

widow for tenant for life and other heirs who had

ordinarily residing at the time of death of the tenant for a

period of five years.'

9. 'There is no dispute that the present appellants are the

married daughters of the original tenant.'

10. 'Although the mother of the appellants took the plea

that the present appellants should also be substituted,

the learned trial judge overruled such objection and

ultimately decreed the suit.'

11. 'Being dissatisfied the mother of the appellants

preferred an appeal and during the pendency of the

appeal the said mother died. On the date of death of the

mother of the appellants five years time from the date of

death of the father of the appellants had already expired

and the even if we assume for the sake of argument, that

the plaintiffs in spite of being married daughters were

residing along with their father, five years after the death

of their father they lost the right of tenancy in the suit

property and their mothers tenancy also came to an end

on her death.'

12. 'Therefore the learned first appellate Court below

rightly held that on the death of the mother of the

appellants, right to sue did not survive as the heirs of the

mother as the tenancy right in the property of the mother

came to an end on her death. Even in that appeal there

was no scope of any argument that independently of their

own the appellants were entitled to continue tenancy on

the death of the father being resident in the property as

five years time had already expired from the date of death

of the father. Thus there is no infirmity in the order

passed by the learned Court of Appeal below.'

In the case of Nasima Naqi vs Todi Tea Company Limited

reported in 2019(2) CLJ 232(Cal) Hon'ble Division Bench

of this Court observed as follows;

'The status of the specified heirs of the original

tenant, in terms of section 2 (g) of the Act of 1997 is that

of tenants for a period of five years after the death of the

original tenant, subject to such heirs meeting the other

conditions specified in the provision; except that the

spouse of an original tenant is entitled to life protection

in case of premises let out for residential purpose. The

status of all heirs of a deceased original tenant in all

other cases except for the spouse in respect of premises

let out for residential purpose is as permissive occupants

akin to licensees and may even be no different from

trespassers except that the entry into the premises was

lawful and to such extent they may not be regarded as

rank trespassers. In respect of premises let out for non-

residential purpose as in the present case the status of

tenant that the specified heirs of the original tenant enjoy

subject to fulfilling the other conditions for a period of

five years after the death of the tenant if the tenant has

died after coming into force of the acts of 1997 is

completely lost after the expiry of the statutory period.

Since it is only a tenant for whose eviction there is a

statutory precondition of the issuance of notice under

section 6 (4) of the Act of 1997 in the case of an heir of

the original tenant continuing in occupation of the non-

residential premises after five years following the death of

the original tenant when the original tenant died after the

coming into force of the Act of 1997, there is no

requirement of any notice to be issued by the owner of

the premises prior to the institution of the suit for

eviction against such heir and on such ground.

In view of the law laid down as above the heirs or

the like of the original tenant stands removed upon the

expiry of the statutory period following the death of the

original tenant such heirs or the like cannot defend an

eviction suit brought by the landlord on any ground,

under the Acts of 1997 except for the spouse of the

original tenant who enjoys lifetime protection from

eviction in respect of premises let out for residential

purpose.'

Upon considering the definition of tenant as

provided under Section 2(9) of The West Bengal Premises

Tenancy Act 1997 and the judicial decisions relied upon

it is clear that save and except spouse of the tenant his

daughters sons or other relatives cannot remain in the

status of the tenant beyond the period of five years from

the date of death of the original tenant or beyond the

period of five years from the date of coming into force of

the West Bengal Premises Tenancy Acts 1997. In the

instant matter it is an admitted position that the original

tenant died on 10-04-2009 leaving behind his spouse

Smt Mahesiya Debi, and three sons Upendra Baitha

Nagandau Baitha and Narendra Baitha. As per section 2

(g) of the West Bengal premises tenancy Act 1997 the

spouse Smt Mahesiya Debi acquired tenancy right of the

suit property till her death on the other hand the sons of

the original tenant the opposite parties herein acquired

tenancy right for a period of five years. As the spouse of

the original tenant who is defendant in Ejectment suit no

177 of 2018 pending before learned Civil Judge (Jr

division) 3rd Court at Alipore died on 22/07/2020 there is

no scope for further acquiring tenancy right by the sons

of the deceased defendant as per section 2 (g) of the West

Bengal premises tenancy Act 1997. In view of the law laid

down in the case of NasmaNaqivsTodi (supra) the heirs of

the original tenant stands removed upon the expiry of the

statutory period following the death of the original tenant

such heirs or the like cannot defend an eviction suit

brought by the landlord on any grounds under the acts of

1997 except for the spouse of the original tenant who

enjoys lifetime protection from eviction in respect of

tenanted premises.

In the facts and circumstances this Court is of the

view that the order No.15 dated 13/04/2021 passed

inEJ-177/2018 by learned Civil Judge (Jr division) third

Court Alipore, directing to serve notice upon the legal

heirs of the deceased defendant i.e. her sons cannot be

sustained and thus the same is set aside.

However, it is to be noted that as the order

dated13/04/2021 is passed on an application under

Order 22 Rule 4A of the Code of Civil Procedure it is

necessary to consider the nature and scope of the said

provision. First and foremost it is to be remembered that

when sole defendant dies and the right to sue survives

the court on an application made in that behalf shall

cause the legal representative of the deceased defendant

to be made a party and shall proceed with the suit.

Secondly when there is no legal representative or legal

representative cannot be traced out the provision

contained under Rule 4A of Order 22 of the Code of Civil

Procedure is to be invoked. As the right of tenancy to the

suit property does not accrue to the opposite parties who

are the heirs of the deceased defendant it is necessary to

decide as to whether right to sue survives to the

plaintiff/petitioner. As the suit is pending before the

learned Court below this Court does not deem fit to make

any observation in this regard and leaves it to the

Learned Court to decide on this issue in accordance with

law.

This Revisional Application stands disposed.

Urgent photostat certified copy of this order, if

applied for, should be made available to the parties upon

compliance with the requisite formalities.

(Biswaroop Chowdhury, J.)