Calcutta High Court (Appellete Side)

Susanta Basu & Ors vs Gouri Dasgupta & Anr on 17 October, 2023

                    IN THE HIGH COURT AT CALCUTTA
                     CIVIL REVISIONAL JURISDICTION
                             APPELLATE SIDE


PRESENT:
THE HON'BLE JUSTICE BIVAS PATTANAYAK

                              C.O. 390 of 2022
                             Susanta Basu & Ors.
                                   versus
                            Gouri Dasgupta & Anr.

 For the Petitioners          : Mr. S. P. Mukherjee, Advocate
                                Mr. Shuvajit Bose, Advocate

 Heard on                     : 27.04.2023

 Judgment on                  : 17.10.2023


Bivas Pattanayak, J. :-
1.

This revisional application has been filed under Article 227 of the

Constitution of India challenging the order/judgment dated 20th January,

2022 passed by the learned Additional District Judge, 10th Court at Alipore

in Title Appeal No. 151 of 2019 rejecting an application under Order VII

Rule 11 of the Code of Civil Procedure (hereinafter referred to as 'the Code')

thereby reversing the order for rejection of plaint dated 6th August, 2019

passed in Title Suit No. 675 of 2019 by the learned Civil Judge (Junior

Division), 3rd Additional Court at Alipore, South 24 Parganas.

2. The brief fact of the case is that opposite parties-plaintiffs filed a suit

for declaration and permanent injunction against the petitioners-

defendants being Title Suit No. 675 of 2019. It is contented inter alia in the

aforesaid suit that one Dilip Kumar Dasgupta was the proprietor of

business under the name and style of "M/s Dasgupta Electric Art Studio"

and he used to run such business in the tenanted shop room no.1 under

the landlordship of Satyendra Nath Basu (since deceased) comprised

within the ground floor of premises no. 238B, Rash Behari Avenue, P.S.-

Gariahat, Kolkata-700019. Further said Dilip Kumar Dasgupta, proprietor

of the business, died leaving behind his wife, Uma Dasgupta, Gouri

Dasgupta (plaintiff no.1 herein), widow of his predeceased eldest son

Pradip Kumar Dasgupta and grandson, Siddheswar Dasgupta, Tapan

Kumar Dasgupta (son) and Shyamali Halder (daughter). During his

lifetime, Dilip Kumar Dasgupta executed and published a registered Will

and testament dated 2nd December, 2002 registered before the Additional

Registrar of Assurance-III being deed no. 1013 for the year 2002. By dint of

such registered Will and testament, Dilip Kumar Dasgupta bequeathed the

entire business under the name and style of "M/s Dasgupta Electric Art

Studio" as well as the tenancy right in favour of his daughter-in-law, Gouri

Dasgupta (plaintiff no.1) and his grandson, Siddheswar Dasgupta (plaintiff

no.2). After the death of the testator, Dilip Kumar Dasgupta, the opposite

parties-plaintiffs have been carrying on the business under the name and

style of "M/s Dasgupta Electric Art Studio" as per the said registered Will

and their names have been duly recorded in the Office of the Kolkata

Municipal Corporation in the certificate of enlistment and they have been

regularly paying fees and renewing their trade licence. Since the last week

of April, 2019, the petitioners-defendants and their men and agents tried

to illegally oust the opposite parties-plaintiffs from the said premises. On

the aforesaid facts, the opposite parties-plaintiffs prayed for declaration of

their tenancy right in the suit property and permanent injunction. The

petitioners-defendants filed an application under Order VII Rule 11 of the

Code for rejection of plaint on the ground that the tenancy right cannot be

bequeathed by way of Will and that the premises let out is a shop room

and in the event of death of the original tenant, the tenancy right does not

and cannot pass and/or devolve upon the plaintiffs as they are excluded

by the definition of 'tenant' under Section 2(g) of the West Bengal Premises

Tenancy Act, 1997 (hereinafter referred to as 'the said Act'). The learned

Trial Court allowed the prayer of the petitioners for rejection of the plaint.

However, the order of the learned Trial Court was set aside by the

Appellate Court in Title Appeal No. 151 of 2019. Hence, this revisional

application.

3. Mr. S. P. Mukherjee, learned advocate for the petitioners-defendants

submitted, at the outset, that the predecessor-in-interest of the petitioners

namely Satyendra Nath Basu filed a suit for eviction against the wife of

deceased Dilip Kumar Dasgupta being Ejectment Suit No. 239 of 2007 and

after her demise, it was pursued against the surviving legal heirs and

decree of eviction was passed against them in respect of the suit property.

Further, as per the plaint case, the plaintiffs have averred that by dint of a

registered Will, they got the right of tenancy as well as the business.

However, the tenancy right cannot be bequeathed by way of Will and,

therefore, the opposite parties-plaintiffs prima facie do not have any

tenancy right over the scheduled property and cannot claim such right on

the basis of the alleged Will. The provisions of the said Act do not provide

for transfer of tenancy by way of Will. In support of his contention, he

relied on the decisions of this Court passed in Banwarilal Jalan versus

Pramod Kumar Jalan1 and in Lalita Saha versus Arvind Kumar

Singh2. Going by the provision of Section 2(g) of the West Bengal Premises

Tenancy Act, 1997, the tenancy of Dilip Kumar Dasgupta (since deceased)

could have been continued by his wife Uma Dasgupta for a period of five

years subject to fulfilling of other conditions but unfortunately she has

also died and since the opposite parties-plaintiffs, being the daughter-in-

law and grandson, are not included within the definition of 'tenant' under

Section 2(g) of the said Act, the opposite parties-plaintiffs have no cause of

action to claim tenancy right in the suit shop room. To buttress his

contention, relied on the decision of this Court passed in Nasima Naqi

versus Todi Tea Company Limited and Others3. Further he submitted

that clever drafting creating illusions of cause of action are not permitted

in law and clear right to sue should be shown in the plaint. In the absence

of such clear right to sue, the plaint is liable to be rejected. In support of

his contention, he relied on the decision of the Hon'ble Supreme Court

passed in I.T.C. Limited versus Debts Recovery Appellate Tribunal and

Others4. Further sham and frivolous litigation should be shot down at the

earliest stage. In support of his contention, he relied on the decision of the

Hon'ble Supreme Court passed in T. Arivandandam versus T. V.

Satyapal and Another5. In light of his aforesaid submissions, he prayed

that since the opposite parties-plaintiffs have failed to make out a clear

and distinctive right of tenancy in respect of the suit property, the plaint is

liable to be rejected.

1 2011 (2) CLJ (Cal) 115 2 2014(4) CHN (Cal) 116 3 2019(2) CLJ (Cal) 232 4 AIR 1998 SC 634 5 (1997) 4 SCC 467

4. Notice of this application has been delivered to Smt. Saraswati Sen,

learned advocate of the opposite parties-plaintiffs before the Trial Court.

By letter dated 18th April, 2023, Mr. Basanta Kumar Sen, learned advocate

informed learned advocate-on-record for the petitioners that he has been

appointed to represent the opposite parties. However, none appeared on

behalf of the opposite parties at the time of hearing.

5. Having heard learned advocate for the petitioners-defendants, the

only issue which has fallen for consideration is whether the learned

Appellate Court was justified in reversing the order of the learned Trial

Court rejecting the plaint of the opposite parties-plaintiffs under Order VII

Rule 11 of the Code.

6. In order to appreciate the aforesaid issue, it would be apposite to refer

to the relevant provisions under Order VII Rule 11 embodied under the

Code which is reproduced hereunder:

"[R 11] Rejection of plaint.-The plaint shall be rejected in the following cases:-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp- paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of rule 9:

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp- papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."

6.1. It is a trite law that the only restriction is that the consideration of the

application for rejection of the plaint should not be on the basis of the

allegations made by the defendant in his written statement or on the basis

of the allegations in the application for rejection of the plaint. The Court is

to consider only plaint as a whole and in case the entire plaint comes

under the situations covered by Order VII Rule 11 (a) to (f), the same has

to be rejected.

6.2. Bearing in mind the aforesaid provisions, it is found that the opposite

parties-plaintiffs have sought for declaration of their tenancy right in the

suit shop room precisely on the ground that the business under the name

and style of "M/s Dasgupta Electric Art Studio" along with tenancy right

was bequeathed by way of Will in their favour by their predecessor-in-

interest Sri Dilip Kumar Dasgupta (since deceased) who was the original

tenant in the suit property. At this juncture, the question arises whether

the tenancy right can be bequeathed by the original tenant upon execution

of a Will. The West Bengal Premises Tenancy Act, 1997 does not contain

provisions by which tenancy right can be created in respect of a premises

by way of bequeath through Will and testament executed by original

tenant. The bequeath by way of Will and testament of tenancy right does

not confer such right in favour of the transferee. I find substance in the

submissions of Mr. Mukherjee, learned advocate for petitioners relying on

Banwarilal Jalan (supra) and Lalita Saha (supra) in this regard.

6.3. Now it is to be seen whether any tenancy right has actually been

created in favour of the opposite parties-plaintiffs under the law after the

demise of the predecessor-in-interest Dilip Kumar Dasgupta (since

deceased) who was the original tenant in respect of the suit shop room. In

order to decide such issue, it would be apposite to reproduce the definition

of "tenant" under Section 2(g) of the said Act as hereunder:

"2.(g) "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 the date of coming into force of this Act, 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 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 dependant 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 dependant on him and who does not own or occupy any residential premises:

Provided further that the son, daughter parent or the widow of the predeceased son of the tenant who was ordinarily residing with the tenant in the said premises up to the date of death of the tenant as a member of his family and was dependent 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."

6.4. The suit premises is a shop room and, therefore, it goes without

saying that such premises was let out for non-residential purpose. Section

2(g) of the said Act as quoted above provides that in respect of premises let

out for non-residential purpose, the 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 dependant on him or a person authorised

by the tenant who is in possession of such premises shall be included as

tenant. Needless to state that the opposite parties-plaintiffs are the

daughter-in-law (widow of predeceased eldest son) and grandson. Thus

under the said Act, the opposite parties-plaintiffs cannot be included as

tenant in respect of the premises let out for non-residential purpose.

Accordingly, the opposite parties-plaintiffs cannot claim themselves to be

tenant under the said Act in view of definition contained under Section 2(g)

of the said Act. Mr. Mukherjee, learned advocate for the petitioner relying

on Nasima Naqi (supra) rightly argued that in respect of the premises let

out for non-residential purpose, the wife of the deceased original tenant

could have continued with the tenancy, 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 said Act.

7. Mr. Mukherjee, learned advocate for petitioners although has argued

on the aspect that previously a suit for eviction was filed by the original

landlord Sri Satyendra Nath Basu against Smt. Uma Dasgupta, the wife of

late Dilip Kumar Dasgupta in respect of the suit premises and in the said

suit decree for eviction was passed in favour of the petitioners, yet it is

placed on record that such ground has never been taken before the

learned Trial Court or the Appellate Court. Further while deciding an

application under VII Rule 11 of the Code, the Court is to look to the

averments in the plaint to find out whether it is covered by the clauses of

Order VII Rule 11 of the Code. Therefore, such argument advanced on

behalf of the petitioners-defendants is inconsequential.

8. In T. Arivandandam (supra), the Hon'ble Supreme Court held as

follows:

"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the

judgment of the High Court, it is perfectly plain that the suit now, pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. . . ."

9. In I.T.C. Limited (supra), the Hon'ble Supreme Court held as follows:

"16. Question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11, CPC. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. See T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467 : (AIR 1977 SC 2421)."

9.1. Bearing in mind the aforesaid, since no right of tenancy could be

established by opposite parties-plaintiffs under law in respect of the suit

shop room and no clear right to sue is shown in the plaint, hence the

plaint is liable to be rejected.

10. In light of the aforesaid discussion, the civil revisional application

being no. C.O. 390 of 2022 is hereby allowed. The impugned

judgment/order dated 20th January, 2022 passed by the learned

Additional District Judge, 10th Court at Alipore in Title Appeal No. 151 of

2019 is set aside. The order of rejection of plaint dated 6th August, 2019

passed in Title Suit No. 675 of 2019 by the learned Civil Judge (Junior

Division), 3rd Additional Court at Alipore, South 24 Parganas is affirmed.

11. All connected applications, if any, stand disposed of.