Jai Chand Mahtab & Ors vs Smt. Suchandana Roy And Ors
2023 Latest Caselaw 1139 Cal/2

IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL SIDE

Present:

The Hon'ble Justice Sugato Majumdar

CS/127/2006 IA NO: GA/6/2019 (Old No: GA/427/2019)

JAI CHAND MAHTAB & ORS.

VS SMT. SUCHANDANA ROY AND ORS.

For the Plaintiffs        : Mr. A. C. Kar, Adv.,
                           Mr. Anirban Kar, Adv.,
                           Ms. M. A. Elahi, Adv.,
                           Ms. Snigdha Das, Adv.,
                           Ms. Sushmita Bhattacharjee, Adv.


For the Defendants        : Mr. Indrajeet Dasgupta, Adv.,
                           Ms. Puspita Bhowmick, Adv.,
                           Ms. Rima Biswas, Adv.,
                           Mr. Saptak Sanyal, Adv.


Hearing concluded on      : 21.04.2023



Judgment on               : 04.05.2023



Sugato Majumdar, J.:

G. A. No. 6 of 2019 is filed under Chapter 13A of the Original Side

Rules praying for delivery of possession of premises No. 8, Lyons Range,

Kolkata - 700001.

The suit was filed on 12.06.2006 for recovery of peaceful and vacant

possession of the premises No. 16, India Exchange Place and premises No.

8, Lyons Range, Kolkata - 700001.

The sum and substance of the facts necessary for adjudication of the

present application is that the predecessors-in-interest of the present

Plaintiffs executed a registered deed of lease on 7th August, 1936 in respect

of the suit premises for a period of 50 years with M/s. Mitters Ltd., a

registered company under the then existing rule. Rent was also fixed. The

present answering Defendants are successors-in-interest of the original

lessee. The lease expired by efflux of time on 7th August, 1986. Prior to the

expiry of lease, rent was attached by the Tax Recovery Officer - XXI, Kolkata

and 24 Parganas, in terms of an order dated 18th July, 1977. Since then,

rent had been paid to the taxation authorities in terms of the said order.

The order of attachment was withdrawn on 25th February, 1997. After

expiry of the period of lease the Plaintiffs filed a suit being C.S No. 344 of

1998 in this Court. In the said suit prayer was for recovery of vacant

possession of the suit premises along with prayer of mesne profit. It was in

the pleading of the Plaintiffs in the said suit that on expiry of lease the

Defendants became trespassers bereft of any right to possession thereof in

view of the fact that the Defendants and each of them failed and neglected to

exercise the option of renewal of the said lease. It is further in the pleading

that since not interested, the Plaintiffs were advised not to proceed with the

said suit. Thereafter the suit stood dismissed.

It is in the pleading of the instant application that there is no renewal

of lease by execution of a fresh deed of lease. In absence of the execution of

fresh deed of lease the Defendants could at best be said to have been

continuing in possession of the premises as tenants-by-holding over after

expiry of terms of the principal lease. In the circumstances, by letter dated

13th May, 2004 the Plaintiffs duly determined the tenancy of the Defendants

on 15 days' notice prior expiring with the month of tenancy. The said notice

was issued on behalf of the Plaintiffs under section 106 of the Transfer of

Property Act, 1882. According to the plaintiffs on termination of the tenancy

in terms of the notice dated 13th May, 2004 the Defendants have become

trespassers and the Defendants as well as any persons claiming under them

are liable to be evicted as trespassers.

The original Defendant no.1 expired. In terms of the Order dated

11th September, 2018 fresh summons was directed to be issued for service

on the successors of the Defendant no.1. The answering Defendants were

substituted thereafter. Summons was served on 17th November, 2018 on

the Defendant no.1(a). Summons was served on 12th December, 2018 on

the Defendant no.1(b). The answering Defendants entered appearance

through their Learned Advocate on 10th December, 2018 and 19th December,

2018 respectively. The answering Defendants were permitted to file written

statement within time period so fixed.

According to the Plaintiffs the provisions of Chapter 13A of the

Original Side Rules squarely applies in this case. Therefore, this application

is made for final judgment for recovery of possession of the immovable

property being premises No. 8, Lyons Range, Kolkata - 700001 together with

mesne profits.

The answering Defendants filed written statement on 21st February,

2019. They also filed affidavit-in-opposition against the instant application.

The answering Defendants challenged the capacity and authority of the

predecessors of the Plaintiffs to executive the deed of lease. It is also

contended that the schedule does not match with the premises under

occupation of the answering Defendants. A further contention is raised that

the tenancy is presently governed by the West Bengal Premises Tenancy Act,

1997 for which the suit is not maintainable. Another contention made by

the answering Defendants is that the previous suit being C.S No. 344 of

1998 should have been withdrawn by the Plaintiffs with a leave to file a suit

afresh on the self-same cause of action. The present suit, according to the

answering Defendants, is barred by law and should be dismissed.

According to the answering Defendants the instant application under

Chapter 13A of the Original Side Rules is not maintainable.

Affidavit-in-reply was filed by the Plaintiffs refuting all the

contentions raised in the Affidavit-in-Opposition.

Both the parties filed written notes of arguments refuting each

other's contentions with reference to various decisions of the Apex Court.

Among others, Mr. Kar, Learned Senior Counsel argued that after

expiry of the lease a tenant can either be a tenant at sufferance or a tenant

by holding over. In the instant case the position of the answering

Defendants is at best a tenant by holding over. The Learned Counsel

referred to the reply to their letter dated 13th May, 2004 determining the

lease and submitted that it is the case of the answering Defendants and

admitted by them that they are in possession of the premises in

continuation or extension of the principal lease. Their tenancy has been

duly determined for which a delivery of possession can be made, allowing

the instant application.

Mr. Dasgupta, the Learned Counsel appearing for the answering

Defendants, among others, submitted that the previous suit was dismissed

for default. The Plaintiffs are, therefore, barred from instituting a suit for

recovery of possession on the self-same cause of action. In order to obviate

the rigours of Order IX Rule 9 of the Code of Civil Procedure, 1908, the

Plaintiffs issued another ejectment notice to devise a fresh cause of action

without having any basis for such action. The nutshell of his argument is

that "due determination" of the tenancy is questionable. There are the issues

which goes to the root of the suit on its maintainability. Therefore,

according to Mr. Dasgupta, the answering Defendants have a strong defence

and instant application is not maintainable.

I have heard rival submissions, and I will consider those arguments

necessary and essential for adjudication of the present application.

It is in the pleading of the Plaintiffs that the original lease expired on

7th August, 1986. Rent was attached by the income tax authorities in terms

of an order dated 18th July, 1977. The order of attachment was withdrawn

on 25th February, 1997. The previous suit was filed subsequent thereto.

The said suit was dismissed, as averred. Nothing is there in the pleading to

show that the suit was withdrawn with a leave to file it afresh. Thereafter,

the tenancy was determined in terms of the notice dated 13th May, 2004.

On determination of the tenancy the instant suit is filed and instant

application is taken up.

C.S No. 344 of 1998 was filed for recovery of possession of the suit

premises. It is averred in the application that on expiry of the principal

lease the Defendants became trespassers and ceased to have any right to

possession. It is also stated "..no rent could be collected by the Plaintiffs or

their predecessors-in-interest from the Defendants since that date till the order

of attachment was withdrawn on 25th February, 1997." On expiry of lease a

tenant can either be a tenant at sufferance or a tenant by holding over. It is

in the pleading of the Plaintiffs that the Defendants became trespassers after

expiry of lease. It is also admitted position that rent could not be collected

since the date of order of attachment of rent till its withdrawal. The

previous suit for recovery of possession was filed after withdrawal of the

order of attachment. The suit was dismissed. Nothing is there in the

pleading to show that after dismissal of the suit the Plaintiff accepted rent or

treated the Defendants as tenant by holding over assenting to continuity of

possession. A vague pleading is that the Defendants can at best be a tenant

by holding over without particularizing how a tenancy by holding over came

into being. Section 116 of the Transfer of Property Act, 1882 states that if a

lessee or under lessee of property remains in possession thereof after

determination of the lease granted to the lessee, and the lessor or his legal

representative accepts rent from the lessee or under lessee or otherwise

assents to his continuing in possession. The lease is in absence of an

agreement to the contrary, renewed from year to year or from month to

month, according to the purpose for which the property is leased, as

specified in Section 106. The instant application is silent on whether any

rent was accepted subsequent to the expiry of lease or dismissal of the suit

or whether the Plaintiffs expressed to continue in possession of the

Defendants. Rather pleading indicates that the Plaintiffs did not signify

their assent for continuing possession of the Defendants. In this conspectus

of facts, as pleaded, it is not clear how a tenancy by holding over came into

being which was determined in terms of the notice dated 13th May, 2004 or

whether the tenancy came to an end on expiry of the principal lease.

Determination of tenancy presupposes existence of a tenancy till such

determination. Pleadings of the instant application do not disclose this

issue clearly and unequivocally. A question of fact remains whether the

Plaintiffs determined a living tenancy or determined a dead tenancy as a

facade to circumvent the rigors and restriction imposed by Order IX Rule 9

of the Code of Civil Procedure, 1908. All these facts cannot be decided at

the stage but only after finding of facts in an elaborate trial. Whether there

was a due determination of tenancy as envisaged in Rule 1(B) of Chapter

XIIIA of the Original Side Rules is a question of fact which can be decided at

the end of trial only.

Mr. Kar, although argued that in the reply letter to the notice dated

13th May 2004, the Defendants admitted that they are in possession of the

premises on the strength of extended lease, the point is not in his pleading.

Rather, present application stressed that there is no extension of lease. A

contradictory plea cannot be heard, therefore. The Plaintiff cannot stand on

the leg of the Defendants' plea, but must stand on his own pleading.

Another question which still demands attention and fact finding as to

whether the cause of action of the suit actually exist or not in respect of

which strong dispute is raised by the answering Defendants, as discussed

above. There should be a fact finding in trial whether the notice dated 13th

May, 2004 determined a dead tenancy or a live tenancy. In my opinion it is

prerequisite for invocation of the provisions of Rule 1 (B) of Chapter XIIIA

that the Plaintiff shall make out a case within ambit of that provision which

is assent in this application.

I agree with the submission made by Mr. Dasgupta, the Learned

Counsel appearing for the answering Defendants, that in view of different

question of facts existing in the instant lis which demands factual

determination in full-fledged trial, the answering Defendants has a strong

defense in the suit. It is not a simpliciter moonshine defence.. On the other

hand, the case made out by the Plaintiffs in instant application does not

come squarely within the ambit of Rule 1(B) of Chapter XIIIA of the Original

Side Rules. In other words, the Plaintiffs fail to make out a case within the

ambit of Rule 1 (B) of Chapter XIIIA of the Original Side Rules.

Therefore, the instant application stands dismissed on merit but

without cost.

Since written statement has been filed, fix 26th June, 2023 for

discovery and inspection of documents.

(Sugato Majumdar, J.)