Smt. Molina Dey vs Runa Kundu
2025 Latest Caselaw 1179 Cal/2

Calcutta High Court

Smt. Molina Dey vs Runa Kundu on 12 February, 2025

                 IN THE HIGH COURT AT CALCUTTA
                (Ordinary Original Civil Jurisdiction)
                             ORIGINAL SIDE


Present:

The Hon'ble Justice Krishna Rao



                             GA No. 9 of 2023

                                    In

                         CS No. 220 of 2021



                             Smt. Molina Dey

                                  Versus

                               Runa Kundu




           Mr. Meghnad Dutta
           Mr. Arindam Paul
           Mr. Subham Bandopadhyay
                                                ... For the plaintiff.


           Mr. Amitava Mukherjee
           Mr. Lal Ratan Mondal
           Ms. Arpita Saha
           Ms. Ankita Ghosh
           Ms. Antara Das
           Ms. Munmun Dubey
                                                ... For the defendant.
                                       2


Hearing Concluded On : 22.01.2025

Judgment on            : 12.02.2025

Krishna Rao, J.:

1. The defendant has filed the present application being G.A. No. 9 of

2023 in C.S. No. 220 of 2021 praying for rejection of plaint. The

plaintiff has filed the suit against the defendant for eviction, recovery

of khas possession and mesne profit.

2. The contention raised by the defendant in the present application is

that the suit filed by the plaintiff is a commercial suit but has filed in

the Non-Commercial Division. The defendant is running business in

the suit premises. It is also the contention of the defendant that the

suit property is for non-residential purpose and under the provisions

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

protection is granted only for residential purpose. It is also the

contention that the husband of the defendant, namely, Prabir Kumar

Kundu left behind his wife, the defendant herein, one son and one

daughter but the plaintiff has not made all the legal heirs of Prabir

Kumar Kundu as defendants.

3. On 28th April, 1993, the husband of the plaintiff and the plaintiff have

jointly had purchased the suit properties. The husband of the plaintiff

died on 5th June, 2008 leaving behind the plaintiff as his only legal

heir and by way of inheritance and succession, the plaintiff has

become the sole and absolute owner of the suit property.

4. Mr. Meghnad Dutta, Learned Advocate representing the plaintiff

submits that one Satya Ranjan Kundu was the monthly tenant with

respect to the suit property. Satya Ranjan Kundu died on 24th

September, 1998 and after his death, the tenancy was transferred in

the name of his wife, Smt. Durga Rani Kundu. Durga Rani Kundu

died on 27th May, 2015 leaving behind her son, namely, Prabir Kumar

Kundu as her only legal heir and reprehensive.

5. Mr. Dutta submits that due to the death of the original tenant, Durga

Rani Kundu and upon expiry of the period of five years from the date

of death of the original tenant, the tenancy has come to an end and

the defendant being the daughter in law of the original tenant, on and

from 27th May, 2020 has no right to occupy, possess and enjoy the

suit property.

6. Mr. Dutta submits that the plaintiff has sent notice calling upon the

defendant to handover and deliver up peaceful, vacant and khas

possession of the suit property to the plaintiff but inspite of receipt of

notice, the defendant failed to vacate the premises and to hand over

vacant possession of the suit properties to the plaintiff. He submits

that instead of vacating the premises, the defendant filed a false and

fictitious suit against the plaintiff for declaration and permanent

injunction before the Learned City Civil Court at Calcutta. He submits

that the defendant has no right in any manner whatsoever to use,

occupy and possess the suit property.

7. Mr. Dutta in support of his submissions relied upon the following

judgments:

                  i.    Nasima Naqi vs. Todi Tea Company Ltd.
                        and Others reported in 2019 SCC OnLine
                        SC 1601.

ii. Eldeco Housing and Industries Limited Vs. Ashok Vidyarthi & Ors. reported in 2023 SCC OnLine SC 1612.

8. Per contra, Mr. Amitava Mukherjee, Learned Advocate representing the

defendant submits that sometimes in the year 1952, the father-in-law

of the defendant, namely, Satya Ranjan Kundu was inducted as

tenant with respect to one shop room measuring an area of 160 Sq.Ft.

(20ft.x 8ft.) together with adjacent godown measuring an area of 30

Sq. Ft. (20ft. x 1 ½ ft.) and just opposite of that another shop room of

(wooden structure) measuring an area of 301 sq.ft. (43 ft. x 27 ft.)

alongwith one common bath cum privy situated and lying at on the

ground floor of the premises No. 103/B at Bidhan Sarani, Kolkata-

700 004.

9. He submits that father-in-law of the defendant was carrying his

business of readymade garments in the suit properties under the

name and style of "Jashoda Stores" as sole proprietor and also

obtained necessary licence from the Calcutta Municipal Corporation.

He submits that after the death of Satya Ranjan Kundu, the licence

was transferred in the name of his wife, Durga Rani Kundu and has

started carrying out her business under name and style of "Jashoda

Stores" as sole proprietoer. He submits that the mother-in-law of the

defendant has also started paying monthly rent at the rate of Rs.

2310/- per month to the plaintiff and her husband Gobinda Prasad

Dey including Municipal Charges. The plaintiff and her husband

jointly used to issue rent receipts to the husband of the defendant.

10. After the death of mother-in-law of the defendant on 27th May, 2015,

the husband of the defendant has started running the said business

in the said premises and the trade license of the business of the

"Jashoda Stores" was also transferred in the name of the husband of

the defendant. He submits that the husband of the defendant died on

2nd February, 2018 and after the death of the husband of the

defendant, the defendant is carrying the said business from the suit

property.

11. Mr. Mukherjee submits that after the death of the husband of the

defendant, namely, Prabir Kumar Kundu, the defendant has become

the sole proprietor of the business, namely, "Jashoda Stores". He

submits that after the death of the husband of the defendant, the

defendant has paid monthly rent to the plaintiff and the plaintiff has

accepted monthly rent and assured that the defendant will issue rent

receipts but the plaintiff has not issued rent receipts in favour of the

defendant. He submits that after the death of the husband of the

defendant, the Municipal Corporation has also issued certificate of

enlistment to carry out the business as tenant in the suit premises.

12. Mr. Mukherjee submits that since the year 1952, the suit premises is

being used for the purpose of business and admittedly till date the

defendant is running her business of readymade garments under the

name and style of "Jashoda Stores" in the suit premises. He submits

that the plaintiff has filed the suit on the ground that the original

tenant, namely, Durga Rani Kundu died on 27th May, 2015 and on

expiry of the period of five years from the date of the death of Durga

Rani Kundu, the tenancy has come to end but the Section 2(g) of the

West Bengal Premises Tenancy Act, 1997 is not applicable as the suit

premises is non-residential.

13. Section 2(g) of the West Bengal Premises Tenancy Act, 1997 reads as

follows:

"(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 upto 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 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."

14. In the case of Nasima Naqi (supra), Section 2(g) of the West Bengal

Premises Tenancy Act, 1997 was taken into consideration and two

issues were decided by the Hon'ble Division Bench of this Court which

reads as follows:

"5. It is, thus, that Section 2(g) of the Act falls for consideration in the context of the rights of a spouse of a deceased tenant in respect of premises let out for non-residential purpose. More precisely, the twin legal issues that have arisen in the appeal are as follows:

i. whether the spouse of a deceased original tenant is entitled to life-time protection from eviction in respect of premises let out for non- residential purpose?

ii. If the answer to the first legal issue in against the spouse, whether such spouse has a right to have a fresh agreement executed in such spouse's favour, on condition of payment of fair rent, in respect of the premises let out for non-residential purpose?

19. It may be observed that this may be a colossal case of casus omissus. In the context of premises let out for residential purpose, both the provisos to Section 2(g) of the Act apply. Since the first proviso exclusively deals with the continuing rights of the spouse of an original tenant in respect of premises let out for residential purpose, subject to the conditions stipulated therein, the lesser rights conferred by the second proviso to the other heirs of an original tenant would be inapplicable in the case of the spouse. However, in the last sentence of the second proviso to Section 2(g) of the Act clearly specifying that it would be such proviso that would apply mutatis mutandis to premises let out for non-residential purpose, the operation of the first proviso is barred in respect of premises let out for non-residential purpose: thus, the case of the spouse may have been overlooked by the legislature in respect of premises let out for non-

residential purpose. But such a huge omission is not corrected by judicial engineering of a statutory provision. If it is a mistake, it has to be left at that till such time that such perceived error. is corrected by the legislature.

21. Even if the limited rights conferred on the heirs of an original tenant by the second proviso to Section 2(g) of the Act were to be read to also be applicable to the spouse of an original tenant, such rights would not be enough to resist an eviction decree sought by the landlord against the spouse, in respect of premises let out for non-residential purpose, after the expiry of five years after the death of the original tenant if such death was after the said Act came into force. The effect of the second proviso and the limited rights conferred thereunder are just like the embargo that would operate on a landlord who has obtained a decree on the ground of reasonable requirement. Just as such a landlord decree-holder is not entitled to let out the decretal premises within close proximity of obtaining the decree or the possession of the decretal premises pursuant to the decree, similarly, if a landlord, who has obtained an eviction decree on the ground that the heirs of the tenant have continued in occupation of the tenanted premises beyond the period of five years after the death of the original tenant after the said Act has come into force, wishes to let out the decretal premises within

any reasonable time of obtaining the decree or obtaining possession of the decretal premises pursuant to the decree, he has to offer the same to the relevant heir, subject to such heir fulfilling the statutory conditions and subject to rent under the fresh agreement being fair rent.

23. The two principal legal questions are, thus, answered as follows:

i. The spouse of a deceased tenant is not entitled to protection from eviction in respect of premises let out for non-residential purpose beyond the period of five years from the date of death of the original tenant if such original tenant died after the coming into force of the Act of 1997.

ii. The spouse of a deceased original tenant does not have any right to have a fresh agreement executed in such spouse's favour in respect of any premises let out for non- residential purpose if the decree-holder landlord wishes to let out the premises afresh upon obtaining the decree or possession of the premises pursuant to the decree."

15. The said order carried to Supreme Court and the Hon'ble Supreme

Court in the case of Nasima Naqi (supra) held that :

"11. In other words, in relation to residential premises, the protection of a tenant is extended for a period not exceeding five years from the date of death to the spouse, son, daughter, parent and widow of the pre-deceased son, subject to the fulfilment of the above conditions. Where the premises have been let out for non-residential purposes, the protection also extends to the spouse, son, daughter and parent who were:

(i) Ordinarily living with the tenant up to the date of death as members of the family; and

(ii) Dependant on the tenant or a person authorised by the tenant who is in possession of the premises.

12. The effect of the first proviso is that the time limit of five years is not to apply to the spouse of the tenant who was ordinarily living with the tenant up to his death as a member of the family and, besides being dependant on him, does not own or occupy residential premises. Thus, in the case of residential premises, the time limit of five years is not applicable to the spouse of the deceased-tenant who fulfills the requirements which have been specified. The limit of five years does not apply to a spouse where the premises are residential. Under the second proviso, a right of preference for tenancy is granted in a fresh agreement in respect of the premises, subject to the condition of payment of fair rent. The right is granted in favour of a son, daughter, parent or widow of a pre-deceased son of the tenant who was ordinarily residing with the tenant in the premises up to the date of death as a member of the family and was dependant on the tenant and who does not own or occupy any residential premises. However, the legislature, while enacting the second proviso, has not included the spouse of a deceased-tenant in recognizing a right of preference for tenancy in a fresh agreement in respect of the premises. The last sentence of the second proviso states that it shall apply mutatis mutandis to premises let out for non-residential purposes. Thus, both in the case of residential as well as non-residential premises, a provision has been made in the second proviso under which a right of preference is granted to stipulated heirs of the deceased-tenant where a fresh agreement is to be entered into in respect of the premises. The effect of the second proviso is that the legislature has not recognized the entitlement of the spouse while conferring a right of preference for tenancy in a case of a fresh agreement. The High Court was correct in observing that this is a case of casus omissus on the part of the legislature.

This is evidently an inadvertent omission. The exclusion of a spouse of a deceased tenant is without rationale, discriminatory and deprives the surviving spouse of a valuable entitlement granted to the other heirs. There is a valid justification for amending the provision so as to bring the widow within the ambit of the second proviso. This is a matter which, in our view, deserves to be considered by the legislature. Having due regard

to the object and purpose underlying the recognition of a right of preference under the second proviso and the social welfare purpose underlying the enactment of the legislation, it would be appropriate if this aspect is considered. The recognition of a right of preference by the second proviso is intended as a measure of protection for the heirs of a deceased tenant and it would but be appropriate and proper if the same protection which is extended to a son, daughter, parent or widow of a pre-deceased son in the matter of a fresh agreement of tenancy is also recognized to inhere in the spouse of a deceased- tenant. The High Court was right in coming to the conclusion that this would require a substantive amendment to the second proviso since it is not open to the court to introduce words in the second proviso which have the effect of including one class of heirs, namely, a spouse of a deceased- tenant whom the legislature has left out of the terms of the second proviso. Absent such a protection, the spouse of a deceased tenant would be left without the protection which is conferred upon the son, daughter, parent or widow of a pre- deceased son. There would appear to be no justification for not considering the grant of such a protection on the spouse of the original tenant. We hope and trust that this aspect of the omission in the second provisio will engage the attention of the law makers so as to fulfill the salutary purpose of the provision."

16. The Durga Rani Kundu being the original tenant died on 27th May,

2015 and the husband of the defendant being the son of the deceased

Durga Rani Kundu continued with the tenancy more than 5 years

after the death of Durga Rani Kundu. Now, the husband of the

defendant also expired on 2nd February, 2018 and the defendant is

continuing with the tenancy thus the defendant is not entitled to get

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

1997.

17. Section 2(1)(c)(vii) of the Commercial Courts Act, 2015 reads as

follows:

"(2)(1)(c) "commercial dispute" means a dispute arising out of--

(vii) agreements relating to immovable property used exclusively in trade or commerce."

18. In the case of Ambalal Sarabhai Enterprises Limited Vs. K.S.

Infraspace LLP & Another reported in (2020) 15 SCC 585, the

Hon'ble Supreme Court held that:

"36. A perusal of the Statement of Objects and Reasons of the Commercial Courts Act, 2015 and the various amendments to the Civil Procedure Code and insertion of new rules to the Code applicable to suits of commercial disputes show that it has been enacted for the purpose of providing an early disposal of high value commercial disputes. A purposive interpretation of the Statement of Objects and Reasons and various amendments to the Civil Procedure Code leaves no room for doubt that the provisions of the Act require to be strictly construed. If the provisions are given a liberal interpretation, the object behind constitution of Commercial Division of Courts viz. putting the matter on fast track and speedy resolution of commercial disputes, will be defeated. If we take a closer look at the Statement of Objects and Reasons, words such as "early" and "speedy" have been incorporated and reiterated. The object shall be fulfilled only if the provisions of the Act are interpreted in a narrow sense and not hampered by the usual procedural delays plaguing our traditional legal system.

37. A dispute relating to immovable property per se may not be a commercial dispute. But it becomes a commercial dispute, if it falls under sub- clause (vii) of Section 2(1)(c) of the Act viz. "the agreements relating to immovable property used exclusively in trade or commerce". The words "used exclusively in trade or commerce" are to be interpreted purposefully. The word "used" denotes "actually used" and it cannot be either "ready for

use" or "likely to be used" or "to be used". It should be "actually used". Such a wide interpretation would defeat the objects of the Act and the fast tracking procedure discussed above."

19. The plaintiff in paragraph 3 of the plaint mentioned that :

"3. Originally, one Satya Ranjan Kundu, since deceased was the monthly tenant in respect of a one godown measuring about 264 sq. ft. an one wooden structure godown with tin shed measuring about 348 sq.ft. situated on the ground floor of the said property, more particularly described in the schedule "A" and "B' hereunder written and is hereinafter referred to as the "suit property"."

20. In the affidavit-in-opposition of the present application, it is the

specific case of the defendant that since inception of the tenancy, the

suit premises is being used for the purpose of business of readymade

garments under the name and style of "Jashoda Stores". The original

tenant has obtained trade licence from the Kolkata Municipal

Corporation for the purpose of the business of readymade garments

and the said trade licence is extended from time to time and at present

the trade licence is in the name of the defendant.

21. The plaintiff has not denied that the defendant is running the

business in the said premises. The plaintiff has also not filed affidavit-

in-opposition in connection with the present application denying the

contention of the defendant.

22. Considering the above, this Court finds that since inception, the

defendant is using the said premises for the purpose of readymade

garments under the name and style of "Jashoda Stores" and the

Kolkata Municipal Corporation has also issued trade licence to the

defendant. The case is squarely covered under Section 2(1)(c)(vii) of the

Commercial Courts Act, 2015.

23. In view of the above, the plaint is returned to the plaintiff with the

liberty to file the same before the appropriate Court in accordance with

law.

24. G.A. No. 9 of 2023 is disposed of. Accordingly, C.S. No. 220 of 2021

is also disposed of.

(Krishna Rao, J.)