Pradip Dhar vs Anil Karmakar (Deceased)
2023 Latest Caselaw 7334 Cal

               IN THE HIGH COURT AT CALCUTTA
                     (CIVIL APPELLATE JURISDICTION)

    PRESENT:
    THE HON'BLE JUSTICE SIDDHARTHA ROY CHOWDHURY

                                   S.A. 95 of 2016
                                   CAN 2 of 2010
                                   CAN 4 of 2010
                                   CAN 8 of 2023

                               PRADIP DHAR
                                   VS.
                        ANIL KARMAKAR (DECEASED)
                     REPRESENTED BY SMT. SUPRIYA DAS

For the Appellant                    : Ms. Sabita Mukherjee Roy Chowdhury, Adv.
                                       Mr. Subhojeet Mukherjee, Adv.

For the Opposite party               : Mr. Debdutta Bose, Adv.

Hearing concluded on                 : 21st September, 2023

Judgement on                         : 19th October, 2023

Siddhartha Roy Chowdhury, J.:

    1.       Challenge in this appeal is to the judgement and decree passed by

         learned 10th Court, Civil Judge, Senior Division at Alipore in Title Appeal

         No. 153 of 2008, affirming thereby the judgement and decree passed by

         learned Civil Judge, Junior Division, 2nd Court, Alipore in Title Suit No.

         193 of 2003.

    2.       For the sake of convenience the parties will be referred to as they

         were arrayed before the learned Trial Court.

    3.       Briefly stated, the plaintiff being the owner of the suit property

         granted leave and licence to the defendant to possess the suit property

         and for that they entered into an agreement dated 29th December, 1997
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     for a period of five years commencing from 1st February, 1994 which

     would continue till the last day of January, 2003. It was agreed upon by

     and between the parties that the licence fee would be Rs. 1800/- per

     month for first three years and Rs. 2000/- per month for the remaining

     two years. The plaintiff through Advocate gave a letter to the defendant

     asking him to quit and vacate the suit property and to deliver peaceful

     possession thereof with the expiry of last day of February, 2003. But the

     defendant claimed that he was occupying the suit property as a tenant

     and not as a licensee with license fees.

4.       The defendant contested the suit by filing written statement denying

     all material allegations and also filed a counter claim. According to the

     defendant of the suit he paid a sum of Rs. 42,000/- as advance to the

     plaintiff, who received the said amount and it was agreed upon by and

     between the parties that the said sum of Rs. 42,000/- would be adjusted

     at the rate of Rs. 300/- per month. Therefore, according to the defendant,

     the plaintiff could not maintain any suit for his eviction before

     adjustment of the said sum of Rs. 42,000/- or till the end of 2011.

5.       In his counter claim the defendant stated that he is not a licensee.

     The alleged agreement of license is obtained fraudulently by way of

     misrepresentation. It is contended further that the defendant of the suit,

     being the plaintiff of the counter claim that they are the tenants governed

     under the West Bengal Premises Tenancy Act, 1997 under the defendant

     of the counter claim in respect of suit premises.

6.       The plaintiff of the original suit as defendant of the counter claim by

     filing separate written statement denied the contention made in the

     counter claim.
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7.       Learned Trial Court after considering the pleadings of the parties

     framed issues and answered the issue in favour of the plaintiff of the suit

     and dismissed the counter claim, filed by the defendant. Aggrieved by the

     said judgement of learned Trial Court the defendant preferred the appeal

     and made an unsuccessful attempt to get the judgement reversed. But

     the defendant did not challenge the judgement in connection with the

     counter claim.

8.       The second appeal was admitted on substantial questions of law and

     one such substantial question of law is : "In view of the admitted fact the

     parties were not relations and that period of induction was for 5 years

     that too on payment of amount of money, which was to be enhanced after

     the expiry of three years from the date of induction, the learned courts

     below ought to have held for the parties of overcoming the provision of

     the West Bengal Premises Tenancy Act, the agreement was described as

     that of creation of a licensee."

9.       Heard Ms. Sabita Mukherjee, learned Counsel for the appellant. It is

     submitted by Ms. Mukherjee that admittedly Exhibit-3 is an agreement

     prima facie creating relationship between the licensor and the licensee

     but the mere nomenclature is not sufficient to determine the nature of

     the relationship. The defendant and the plaintiff admittedly are not

     relations. The defendant was in a need of occupation and the plaintiff was

     need of an occupant. Thus they came together and the owner of the

     property decided to part with possession of the suit property to the

     defendant. Pursuant to the agreement. Exclusive possession over the

     property in suit was delivered to the defendant in lieu of Rs. 1800/- per

     month for three years and subsequently enhanced Rs. 200/- per month.
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The plaintiff actually wanted to circumvent the statutory obligation as

laid down under the tenancy Act and in order to deny or deprive the

defendant of his statutory protection got the document executed under

the caption licensee agreement. But in spirit this document Exhibit-3 is

eloquent on the status of the parties, as landlord and tenant. It was a

tenancy agreement. It is further adverted by Ms. Mukherjee and quite

rightly that on 21st June, 2000 a sum of Rs. 42,000/- was taken by the

landlord plaintiff from the defendant of the suit to repair the property and

there would be adjustment of the said sum at the rate of Rs. 300/- per

month. Drawing attention of the Court to the fact that the plaintiff knew

that the contractual relationship or jural relationship between the parties

is that of landlord and tenant, which is why he had to issue notice of

termination. In case of licensee the plaintiff had no obligation to issue

notice but in case of a tenant, the plaintiff being a landlord had the

obligation to terminate the tenancy, with clear one calendar months

notice, which was filed in this case. According to Ms. Mukherjee, learned

First Appellate Court as well as learned Trial Court failed to appreciate

the said fact and committed error in passing the impugned judgement. To

buttress her point Ms. Mukherjee places her reliance upon the judgement

of Hon'ble Gujarat High Court in Irji Lavji Makwana vs. Partners of

Business Running in the Name of Rainbow Screen Shades & Ors.

reported in AIR 1979 Gujarat 178 and submits that using of the terms

like lease or license, lessor or licensor, rent or license fee are not by

themselves decisive of the nature of the right created by the document.

An effort should be made to find that whether the deed confers a right to

possession exclusively coupled with transfer of right to enjoy the property
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  there has been brought with those merely right to use the property while

  possession is retained by owner. The conduct of the parties before and

  after creation of lis is of relevance for finding out their intention.

10.   According to Ms. Mukherjee, since the defendant was given

  possession in lieu of money payable every month for three years and for

  remaining two years at an enhanced rate, learned Trial Court ought to

  have held that the defendant was a tenant and he cannot be evicted in

  the breach of the statutory protection available to a tenant under the

  Tenancy Act.

11.   Refuting such contention Mr. Debdutta Basu, learned Counsel for

  the plaintiff/respondent submits that admittedly the defendant field a

counter claim which has the status of suit or cross suit and the counter

claim was dismissed. The defendant did not challenge the said order of

dismissal by preferring an appeal. Therefore, he cannot raise the issue in

the second appeal to upset the concurrent findings of learned Courts

below. Rigour of Section 11 of the Code of Civil Proedure cannot be

ignored or circumvent. Therefore, according to Mr. Basu, learned First

Appellate Court had no other option but to uphold the judgement of

learned Trial Court.

12. The defendant having accepted the verdict of learned Trial Court that

virtually accepted that the defendant is not a tenant, learned First

Appellate Court could not have decided the issue in a different manner in

view of Section 11 of the Code of Civil Procedure. To buttress his point

Mr. Basu relies upon the judgement of Hon'ble Apex Court reported in

Harbans Singh & Ors. vs. Sant Hari Singh & Ors. reported in AIR

2009 SC 1819, Rajni Rani vs. Khairati Lal reported in (2015) 2 SCC

682 and the judgement of Hon'ble Division Bench of this High Court in

Prasanta Sett vs. Alo Mookerjee & Anr.

13. Section 11 of the Code of Civil Procedure says :-

"Section 11. res-judicata No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."

14. Counter claim preferred by the defendant in a suit, it goes without

saying, is in nature of cross suit and by a statutory command even if the

suit is dismissed the counter claim shall remain alive for adjudication. As

per Order 8 Rule 6A(2) the Court is to pronounce a final judgement in the

same suit both on the original claim and also on the counter claim. The

plaintiff can file application for exclusion of counter claim put forth by

defendant concern. The decision taken in counter claim can have the

status of a decree and the determination should be conclusively put to

rest the rights of the parties. In Rajni Rani (supra) Hon'ble Apex Court

held :-

"A Court may draw up a formal decree or may not, but if by virtue of the order of the Court, the rights have finally been adjudicated, irrefutably it would assume the status of a decree."

15. In Harbans Singh (supra) Hon'ble Apex Court held :-

"14. Section 11 of the Code of Civil Procedure reads thus:

"Section 11 - Res judicata.-- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

15. In Premier Tyres Limited vs. Kerala State Road Transport Corporation [1993 Suppl. (2) SCC 146], this Court held:

"....The question is what happens where no appeal is filed, as in this case from the decree in connected suit. Effect of non-filing of appeal against a judgment or decree is that it becomes final. This finality can be taken away only in accordance with law. Same consequences follow when a judgment or decree in a connected suit is not appealed from...."

16. Therefore, learned First Appellate Court, in my humble opinion,

committed no error in passing the impugned judgement affirming the

decree of learned Trial Court. The defendant has chosen his inaction by

not challenging the decree dismissing the counter claim he preferred.

Therefore, the issue becomes res-judicata and thereby the defendant

cannot claim the status of tenant.

17. The appeal therefore, cannot be accepted to upset the concurrent

findings of the Courts below. The impugned judgement does not warrant

any interference. Consequently, the appeal stands dismissed however,

without cost. Pending applications, if any, stand disposed of.

18. Let a copy of this judgement along with lower Court record be sent

down to the learned Trial Court immediately.

19. Urgent photostat certified copy of this judgement, if applied for,

should be made available to the parties upon compliance with the

requisite formalities.

(SIDDHARTHA ROY CHOWDHURY, J.)