Sri Palas Kumar Dutta vs Sri Subhash Chandra Saha & Ors
2023 Latest Caselaw 1830 Cal

                    IN THE HIGH COURT AT CALCUTTA
                     CIVIL APPELLATE JURISDICTION
                            APPELLATE SIDE

PRESENT:

THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE

                                SA 242 of 2013
                            Sri Palas Kumar Dutta
                                      Vs
                      Sri Subhash Chandra Saha & Ors.


For the Appellant                    :       Mr. Amales Ray
                                             Ms. Mousumi Bhowal
                                             Mr. Ishan Bhattacharya


For the Respondent                   :       Mr. Nripen Das
                                             Mr. Debanjan Das
                                             Mr. Dhananjay Nayak

Heard on                             :       16.02.2023

Judgment on                          :       20.03.2023

Ajoy Kumar Mukherjee, J.

1. This second appeal has been directed against judgment and decree dated

November, 30, 2012 passed by Learned Additional District Judge, 1st Court at

Siliguri ,Darjeeling in Title Appeal No. 12(5) of 2011 arising out of other cases

(OC) Ejectment Suit No. 24 of 2010. Division bench of this court while admitted

the appeal formulated following substantial questions of law:-

(i) "Whether the learned Appellate Court below applied the correct

legal principles in dismissing the Title Appeal No. 12(5) of 2011 and

affirming the judgment and decree dated 6thApril , 2011 passed by the

Learned Civil Judge, Senior Divisions, Siliguri in O.C. (Ejectment) No. 24

of 2010?

(ii) Whether a suit on the ground of reasonable requirement for

personal use and occupation filed by a transferee/landlord before expiry

of one year from the date of acquisition of the suit property could have

been entertained and decreed?"

2. Factual backdrops:

(i) The appellant/defendant was inducted as a tenant for residential

purpose in respect of the ground floor of the two storied building at

a monthly rent of Rs. 3000/-excluding electricity and other

charges payable according to English calendar month by the

erstwhile landlord.

(ii) The sale deed was executed in favour of the plaintiffs/landlords by

his vendor on 29.11.2007. Subsequently the sale deed was

registered before the Registration Authority on 18.04.2008.

(iii) Notice under section 6(4) of the West Bengal Premises Tenancy Act,

1997 (herein after called as Act of 1997) was issued by the

plaintiffs/landlords on 14.01.2009 and the said notice was

received by the appellant/tenant on 15.01.2009.

(iv) The plaintiffs/landlords instituted the suit for Ejectment before the

learned Civil Judge, (Junior Division), Siliguri on 30.03.2009. The

learned Civil Judge, (Junior Division), Siliguri returned the plaint

for want of pecuniary jurisdiction under Order VII Rule 10 of Civil

procedure code on 10.03.2010. Eventually the returned plaint was

filed before learned Civil Judge, (Senior Division), Siliguri on

16.03.2010.

(v) The learned Civil Judge, (Senior Division), Siliguri passed the

judgment and decree on 06.04.2011 ex-parte against the

appellant/defendant/tenant in O.C. Ejectment Suit No. 24 of

2010. The learned judge arrived at the findings, that the plaintiffs

have their reasonable requirement in respect of suit premises and

the defendant is also defaulter in payment of rent. It may be

relevant to mention that there was an inordinate delay in fiing the

application by the defendant/tenant under Section 7(2) of the said

Act of 1997, which was dismissed on 03.03.2011.

(vi) The learned Additional District Judge, 1st court, Siliguri passed the

impugned judgment and decree on 30.11.2012 in Title Appeal No.

12 of 2011 affirming the ex-parte judgment and decree dated

06.04.2011, passed by the learned Civil Judge, (Senior Division),

Siliguri.

3. In the instant appeal the appellant has attacked the judgment impugned

mainly on two grounds.

(i) It was written in the notice dated 14.01.2009 under section 6(4) of

the Act of 1997 as well as it was pleaded in the plaint that the

rent was Rs. 3,000/- per month excluding electricity and other

charges. Accordingly the monthly rent exceeds amount of Rs.

3,000/-, as such the court below did not have jurisdiction to try

the suit or the appeal and entire judgment is vitiated for want of

jurisdiction in view of section 3(e) (ii) of the Act of 1997 as the

suit premises falls within "other areas" under the said section.

(ii) A document so long it is not registered is not valid. Here suit on

the ground of reasonable requirement has been filed within one

year from the date of acquisition of interest i.e. date of registration

and the statutory notice under section 6(4) of the Act of 1997 was

also served upon defendant/tenant within one year from

acquisition of interest by the plaintiff and as such suit is barred

under section 6(2) of the Act of 1997. Learned Counsel on behalf

of Appellant in support of his aforesaid argument relied upon

following judgments

(a) AIR 2007 Cal 37 (Para 6)

(b) AIR 1974 Mad 286 (Para 6 & 7)

(c) (1990) 2 SCC 651 (Para 3)

(d) 2016 (4) CLT 328 Para (17 & 18)

(e) 2010 (13) SCC 128 Para (13,16 & 23)

(f) 1998 (7) SCC 498 (Para 11)

(g) 2009 (4) SCC 193 (Para 16)

(h) 86 CWN 1099 (Para 10 & 11)

(i) 85 CWN 635

(j) 82 CWN 184 (Para 6)

(k) AIR 1957 CAL 59 (Para 15)

(l) 2004 (1) CHN 552 (Para 35 & 36)

4. Appellants first ground of attack is courts below had no pecuniary

jurisdiction to try the suit. He submits under section 3(e) (ii) of the Act of 1997,

the Act shall not apply to any premises let out for residential purpose, which

carries more than Rs.3000/- as monthly rent in "other areas" i.e. areas outside

the limits of Kolkata Municipal Corporation or the Howrah Municipal

Corporation. In support of the appellants argument that monthly rent is more

than Rs. 3,000/- and as such it attracts section 3(e) (ii) of the Act of 1997 and

for which the trial court did not have pecuniary jurisdiction to try the said suit,

learned counsel for the appellants has drawn my attention to the averment

made in the plaint as well as notice to quit, send by Plaintiff/Respondent.

Appellant pointed out paragraph 3 of the plaint and the notice of Ejectment

dated 14.01.2009, wherein it has been specifically mentioned that the rent was

firstly fixed at Rs. 3,100/- and same was reduced to Rs. 3,000/- excluding

electricity and other charges. Accordingly Appellant submits, if the electricity

and other charges are added with Rs. 3,000/- then the amount of monthly rent

becomes more than 3,000/- and for which section 3(e) (ii) attracts in the

present case. His further contention is settled position of law is that the term

"rent" includes all that are payable as consideration for tenancy and where the

tenant was liable to pay electricity charges as well as others charges it is to be

considered as part of the rent. In this context he relied upon Promila

Mookerjee and others Vs. Krishna Dutta reported in AIR 2007 Cal 37. He

accordingly submits that the word rent includes not only what is strictly

understood as rent but also payment in respect of the amenities or services

provided by the land lord under the term of tenancy. In this context he also

relied upon another judgment of the Apex Court in Puspa Sengpta Vs. Susma

Ghose reported in (1990) 2 SCC 651 and contended that rent includes

payment in respect of amenities or services provided by the land lord such as

payment in lieu of consumption of electricity under the terms of the tenancy.

5. In reply, learned counsel appearing on behalf the

respondents/plaintiffs/land lord submits that the electricity charges which the

tenant wants to incorporate with the rent was never paid by the defendant

/appellant to the plaintiff/respondent. Practically whatever amount has been

paid by the defendant/tenant by way of electricity charges, has been paid to

electricity distribution company in terms of his consumption of electricity and

it can never be included with the amount of rent. Accordingly section 3(e) (ii) of

the Act does not have any application at all in the present context.

6. I have considered the rival contentions. It appears that in the plaint as

well as in the notice, plaintiff has specifically stated that the rent was firstly

fixed at Rs. 3,100/- and the same was subsequently reduced to Rs. 3,000/-

excluding electricity and other charges. What is meant by the terms "other

charges" has not been explained, anywhere. There is also nothing to suggest

that the defendant/appellant has paid any amount to the plaintiff, monthly,

along with rent towards the heading "other charges". Accordingly it appears

that said word has been loosely used by the plaintiff/land lord which hardly

carries any sense. However, it is true that the plaintiff have specifically stated

that the rent excludes electricity charges but plaintiff contended that electricity

charges was separately paid by the defendant/appellant to the electricity

distribution company and it was never paid to plaintiff with the rent, so that it

can be included as monthly rent. There is no dispute about the clear

proposition of law that the term "rent" includes all that was payable as

consideration of tenancy. Rent includes not only what is strictly understood as

rent but also payment in respect of amenities or services provided by the land

lord under the terms of the tenancy but such electricity charges can be treated

as a part of rent only when a tenancy which carries with it amenities like

electricity to be provided or services to be maintained by the landlord and such

payment has been made to landlord in lieu of consumption of electricity or for

rendering other services under the terms of tenancy. In the present context

defendant nowhere stated that he used to pay any amount of money to the

landlords towards consumption of electricity under the terms of tenancy. I

have gone through the original tenancy agreement dated 1st day of August

2001, where clause 17 of the tenancy agreement runs as follows:-

"17 That in addition to the rent the second party is liable to pay the electricity charges separately and the same shall never form part of the monthly rent".

7. Said tenancy agreement dated 1st August, 2001 was signed by both the

parties and they are bound by the agreement of the tenancy. Moreover in the

agreement there is no mention of payment of "any other charges" by the tenant

to the land lord. Accordingly Puspa Sengupta (supra) case and Promila

Mookerjee (supra) case are clearly distinguishable from the present context,

because in the present case it was clearly agreed by and between the parties

that the electricity charges shall never form part of the monthly rent. Above all

I have also gone through the application filed by the defendant/appellant

under section 7(2) of the Act of 1997 dated 3 rd March, 2011 and in paragraph 4

of the application, Appellant/Defendant has clearly admitted as follows:-

"(4) that the defendant submits that he was inducted in the suit premises by one Prodyut Kumar Chakraborty since deceased, the year of 2001 at a monthly rental of Rs. 3,000/-(Rupees Three Thousand) only, governed by English calendar"

8. In ABL Internatioanl pvt. Ltd. Vs. Susmita Ramchand Sadarangani

& others, reported in (2009) 1 CHN 56, the defendants tenants by virtue of

their admitted agreement of tenancy, were liable to pay air-conditioning

charges in accordance with the prevailing rates in addition to agreed amount of

rent and service charge. Division Bench of this court observed that the variable

amount of electricity charges cannot be said to be rent within the meaning of

section 17 of the West Bengal Premises Tenancy Act, 1956 and thus, claim of

electricity charges at the rate subsequently increased by CESC cannot amount

to the prayer for re-fixation of the fair rent within the meaning of the Act.

Moreover it appears from the record that inspite of getting opportunity the

defendant/appellant never challenged the rate of rent in the court below. The

law is clear on this point. Wherever the opponent has declined to avail himself

of the opportunity to put his essential and materials case in cross-examination,

it must follow that he believed that the testimony given could not be disputed

at all. The effect of declining cross examination of the plaintiffs' witness who

has stated that the defendant was a tenant at a monthly rent of Rs. 3,000/-,

would be presumed that the said version of the plaintiff has been accepted by

the defendant/appellant.

9. In view of the aforesaid clear admission and also in view of the aforesaid

discussion, their appears hardly any scope to say that the monthly rent in

connection with the suit property was more than Rs. 3,000/- at the time of

sending eviction notice or at the time of filing the suit, so that it can attract

section 3(e) (ii) of the Act of 1997.

10. Appellants in support of his case argued further that in the present case

admittedly the purchase deed in favour of plaintiff was executed on 29.11.2007

and it was registered on 18.04.2008, when the sale gets completed. Sub-

Section (2) of Section 6 of Act of 1997 created an embargo on a transferee

landlord to seek eviction either for building rebuilding or for personal use and

occupation for a period of one year. Accordingly under the provision of 6(2) of

the Act of 1997, the land lord was not entitled to file suit for eviction on the

ground of reasonable requirements till 17.04.2009. However, in the present

case it appears that the notice of Ejectment was given on 14.01.2009 and the

suit before Civil Judge (Junior Division) at Siliguri was filed on 27.03.2019 i.e.

before expiration of one year from the date of acquisition of interest in the suit

premises by the plaintiff and as the second suit which was filed on 16.03.2010

is practically continuation of the first suit, so according to Appellants, the suit

is barred under the provision of 6(2) of the said Act.

11. The deed of sale was executed in favour of plaintiffs/respondents on

29.11.2007 but it was registered on 18.04.2008. The notice was given on

14.01.2009 and the plaint was affirmed on 27.03.2009 and suit was filed

before Civil Judge (Junior Division), Siliguri on 30.03.2009 which is before the

expiry of one year from the date of registration of the deed and as such the suit

clearly attract section 6(2) of the Act. In this context he contended that even

though the said suit which was filed before Civil Judge (Junior Division) at

Siliguri on 30.03.2009 was subsequently returned for want of pecuniary

jurisdiction and later on filed before the Civil Judge (Senior Division), Siliguri

on 16.03.2010 but the said second suit is continuation of first suit and as

such it attracts the said provision and in this context reliance has been placed

in the judgment of Md. Sali Vs. Mary Gonrath Fernando and others

reported in AIR 1974 Mad 286. In this context he further contended that sale

of immovable property becomes complete and effective only when it gets

registered and therefore the fiction created by section 47 is not applicable to

deed of sale of immovable property before its actual registration. In this

context reliance has been placed upon judgment in Har Narain Vs. Mam

Chand & Others reported in (2010) 13 SCC 128. Reliance has also placed in

this context in Bishnudeo Narain Rai & others Vs. Anmol Devi & others

reported in (1998) 7 SCC 498. In Kaliaperumal Vs. Rajagopal and another

reported in (2009) 4 SCC 193. In Indian Oil Corporation Vs. Himangshu

Kumar Ghosh reported in AIR 1983 Cal 87.

12. It is apparent from the object intended to be achieved by introduction of

section 6(2) is that the legislature intended to protect tenants against misuse of

grounds of eviction namely reasonable requirement and building re-building

by taking recourse to transfer inter vivos and the period mentioned in section

6(2) is one year from the date of acquisition of such interest. In the said

authorities of law it has been clearly established that a combined reading of

section 8 and section 54 of the Transfer of Property Act, suggests that though

on execution and registration of a sale deed, the ownership and all interests in

the property passed to the transferee yet that would be on the terms and

conditions embodied in the deed indicating the intention of the parties. It

follows that on execution and registration of a sale deed, the ownership title

and all interests in the property passes to the purchaser, unless a different

intention is either expressed or necessarily implied which has to be proved by

the party asserting that title has not passed on execution of the sale deed. I

have gone through recital of the purchase deed of which relevant portion runs

as follows:-

"NOW THIS INDENTURE WITNESSETH that in pursuance of the aforesaid offer and acceptance in consideration of the said sum of Rs. 32,00,000/-(Rupees Thirty -two Lacs) only paid by the purchasers to the Vendors (the receipt whereof the Vendors do hereby acknowledge and grant full discharge to the purchasers from the payment thereof) the Vendors do hereby grant, convey, transfer and assign unto and in favour of the purchasers the properties described in the schedule "B" below and deliver possession thereof to the purchasers together with all rights, title, interest, liberties, privileges, and also the sorts of amenities forming part and appertaining to the said properties described in the Schedule 'B' below and belonging to the said property TO HAVE AND TO HOLD the said properties subject to the payment or rents and taxes payable to the State and to other authorities for the said property."

13. Aforesaid recital unequivocally suggests that the consideration price was

paid on the date of execution and the possession of 'B' schedule property was

also delivered to the purchasers with all right title interests liberties privileges

and also all sorts of amenities forming part and appertaining to the said

properties. Accordingly if the recital of the deed is construed in its proper

perspective then there is no room to suggest that the land lord/plaintiff/

respondent did not "acquire interest" in the suit property on the date of

execution of the deed i.e. on 29.11.2017, which deed was also subsequently

registered on 18.04.2008 and according to section 47 of the Registration Act of

1908 it had relate back to the date of execution of the deed. Apart from all

these, the ex-parte decree in Ejectment suit being OC (Ejectment suit) no.

24/2010 was passed against the defendant in respect of the suit premises not

only on the ground of reasonable requirement but also on the ground of default

in payment of rent. It is also apparent from the contents of the plaint that the

eviction suit was filed by the plaintiff against the defendant on the ground of

defaulter, reasonable requirement and for causing damages to the suit

property. The first suit even by no means is barred, though it may have filed

within one year from the date of registration of deed, because it is settled law,

when the Ejectment suit is filed on the ground of reasonable requirement,

default along with other grounds suit filed within one year of transfer is

maintainable. In this context reliance has been placed in Smt. Mira Devi Vs.

Smt. Leela bati boral and others reported in 1979 (1) CLJ. 196. Since the

present suit was filed not only on the ground of reasonable requirement but

also on other grounds, the suit is maintainable, because there is no

requirement in law that when the land lord wants to file a suit for eviction on

the grounds of default, he will still have to wait for one year from the date of

purchase.

14. Then comes the question that the suit was initially filed on 30.03.2009

before the Civil Judge (Junior Division), Siliguri which was returned on

10.03.2010 by the said court for presenting the same before the proper forum

and thereafter the suit was filed before the Civil Judge (Senior Division),

Siliguri being competent forum to try the suit, on 16.03.2010. Now whether

such suit can be treated as continuation of that earlier suit which was filed

before the Civil Judge (Junior Division), Siliguri and who admittedly did not

have jurisdiction to try the suit.

15. Law in this context is well settled that a suit instituted by the

presentation of a plaint in pursuance to an order passed under order VII rule

10 of the code of civil procedure is not a continuation of the suit which was

instituted in the court which had no jurisdiction to entertain it. In this context

reliance has been placed upon Amar chand inani Vs union of India reported

in 1973 AIR 313

16. In Ram kishan Vs. Ashirvad reported in I.L.R. XXIX 699 Patna High

Court held a suit cannot be said to have been instituted so long as the plaint is

not presented before the court competent to try the suit. When the court before

whom the plaint is filed returns it on the ground that it has no jurisdiction to

try the suit and the plaint is presented before the proper court, the suit is to be

considered as instituted on the date of such presentation and cannot be

regarded in any sense a continuation of the suit before the former court. In the

present context it is not in dispute that Civil Judge (Junior Division), Siliguri

who has returned the plaint invoking power under order VII rule 10 had no

jurisdiction to try the suit and. The case law relied by the defendant/appellant

reported in Md. Salis's Case reported in AIR 1974 Mad 286 is not applicable

in the present case as in that case, the application under order VII rule 10 was

not applicable at all as the junior subordinate judge had not come to any

definite finding on the question of jurisdiction and was merely of opinion that

there was just a possibility that the case may be outside his jurisdiction. The

plaintiff also had not asked in that case for return of the plaint under that rule

but had requested that the case be transferred to a competent court.

Accordingly said case is clearly distinguishable from the present one.

17. In view of aforesaid discussion it is quite clear that by no stretch of

imagination it can be said that section 6(2)of the Act of 1997 attracts in the

present case on the basis of allegation that the plaintiffs /landlord has filed the

suit within one year. The suit has been actually filed by the plaintiff before the

appropriate court on 16.03.2010 which is much after the expiry of one year

from the date of execution i.e. 29.11.2007 and also from the date of registration

which is on 18.04.2008. Moreover as I have noted above the suit was filed not

only on the ground of reasonable requirements but also on the ground of

default and for causing damages in the suit property and suit was also decreed

not only on the ground of reasonable requirement but also on the ground of

default, so there is no question of application of section 6(2) of the Act of 1997

in the present context.

18. Now as a last resort defendant has pleaded that deed was registered on

18.04.2008 but the notice to quit was issued on 14.01.2009 which was

received by the tenant on 15.01.2009 before the expiration of the period of one

year from the date of acquisition of such interest. He further submits sub-

section (4) of section 6 of the Act of 1997contemplates that no suit for the

recovery of possession shall be instituted by the land lord unless he has given

to the tenant one month's notice expiring with a month of the tenancy.

Accordingly defendant contention is that notice under section 6(4), which is the

basis of the suit was served upon defendant before the expiration of the period

of one year from the date of acquisition of such interest and it is settled

principle of law that if such notice suffered from infirmities, subsequent

institution of the suit on the basis of such invalid notice is bad in law and not

maintainable in the eyes of law. In this context he relied upon the judgment of

co-ordinate bench of this court reported in Shibani Basu Vs. Sandip Roy,

(Monu), S.A. No 29 of 2006.

19. It is to be noted that with the registration of the deed it took effect from

the date of execution i.e. from 29.11.2007. A Division Bench of this court in

Bindeshwar Prasad Gupta Vs. Murari Mohan Bhandari reported in (1992)

1 Cal.L.T. 48 (HC) has held that there can be no bar for a transferee/owner to

issue the notice of ejectment even prior to the expiry of the statutory period

which is a sine qua non to the filing of an ejectment suit under the act and

thereafter immediately after expiry of the statutory period to file a suit for

ejectment. If the transferee landlord has to issue ejectment notice only on

expiry of the statutory period from the date of purchase, then he cannot

exercise his right to file a suit for ejectment immediately on expiry of one year

and he has to wait sometime more to file a suit for Eejectment because a

tenant has to give a notice for a period of at least one month with the expiry of

the month of tenancy before on ejectment suit under the Act can be filed

against the tenant. In view of above Division Bench in that case held that the

bench is unable to accept the contention of the Appellants that both the suit

was filed by the respondents are hit by that provisions.

20. In view of above the second appeal SA 242 of 2013 is dismissed. LCR to

be send down to the court below at once along with a copy of judgment.

21. There will be no order as to costs.

22. Urgent photostat certified copy of this judgment, if applied for, be

supplied to the parties upon compliance with all requisite formalities.

(AJOY KUMAR MUKHERJEE, J.)