SACHINDRA MOHAN NANDI Vs. GOUR MOHAN SADHUKHAN
LAWS(CAL)-1970-5-28
HIGH COURT OF CALCUTTA
Decided on May 25,1970

Sachindra Mohan Nandi Appellant
VERSUS
Gour Mohan Sadhukhan Respondents

JUDGEMENT

B. Banerjee, J. - (1.) This is a second appeal on behalf of the landlords and it arises out of a suit which they brought against the Defendant -Respondents in the Court of Subordinate Judge, Chandernagore, for recovery of Rs. 120 as arrears of rent and for ejectment of the Defendants, after notice, on the two -fold grounds, viz. (i) default in payment of rents and (ii) violation of the condition regarding the user of the tenancy. The trial Court gave the Plaintiffs a decree both for arrears of rent and for ejectment and this decree was confirmed by the District Judge, Chandernagore, on appeal. The Defendant then preferred a second appeal and this Court remitted the matter back to the lower appellate Court with certain directions for re -hearing of the appeal. Those directions are, firstly, if there be no written lease, then the terms of the oral contract will have to be specifically and precisely found out, if necessary, with the help of additional evidence ; secondly, in the absence of any decided authority and case law, the Court below, after opportunity, will come to a finding about the period of the notice according to the usage obtaining at Chandernagore and, lastly, the Court below would consider as to whether or not the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950 will govern the case. After remand, additional evidence was led and the matter was heard in the light of the Code Napoleon which is the French Civil Code. The learned Judge found that there was no written lease and that excepting for the admitted fact that the Defendants were monthly tenants at a rental of Rs. 20 per month, the other terms of the oral agreement, such as the month of the tenancy, the date of payment of rents etc., had not been satisfactorily proved. He, however, found that the rents had been in arrears and not paid for six consecutive calendar months and proceeding on the footing that the tenancy was a monthly one, the learned Judge had come to the conclusion that though the terms of the contract was not proved in this case, yet it could be safely inferred that there was default on the part of the lessee in fulfilling the terms of the contract of the lease by making default in payment of rent for six months. The learned District Judge further held that the period of notice according to the usage of the place had not been proved and that at any rate the notice, Ex. 1 dated June 20, 1956, whereby the Defendants were called upon to vacate and yield up possession within 30 days of the receipt of the notice was bad and insufficient in law. On the question about the applicability of the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950 to the facts of the present case, the learned District Judge has referred to a ruling in Nibaran Chandra Chaudhury v/s. Abinash Chandra Dutta Poddar, (1955) 60 C.W.N. 308 and relying upon it he takes the view that, as the cause of action of the suit had arisen long before the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950, was made applicable to Chandernagore, the said Act had no application in this case. The learned District Judge accordingly dismissed 'the suit.
(2.) Before proceeding further I must point out here and now that the learned District Judge was very much wrong in dismissing the suit in its entirety. As indicated earlier, one of the relief 's claimed in the suit was a decree for recovery of Rs. 120 as arrears of rent. It is patent that the learned Judge, in view of his finding that rent fell into arrears for six months, could not lawfully refuse the Plaintiff at least a decree for Rs. 120 as arrears of rent. Although this point was not raised before me, yet I must rectify this mistake and pass a decree that ought to be passed in the suit according to law as enjoined by Order 41, Rule 33 of the Code of Civil Procedure. So, irrespective of any other consideration the Appellants -Plaintiffs will get a decree for arrears of rent as claimed.
(3.) The principal question that has been agitated in this appeal is whether the Plaintiffs -Appellants are entitled to a decree of ejectment. The learned District Judge has found that the notice which is the basis of the claim for ejectment is defective and insufficient. He has referred to Article 1736 of the French Code It says that one of the parties cannot give discharge to the other without observing the intervals fixed by the usage of the place. According to the learned District Judge such usage has not been proved. He has further held that, irrespective of the question of interval to be determined according to usage, the notice itself is defective. These are findings of fact and cannot be disturbed in second appeal. The Appellants, however, want to avoid the legal consequences that follow from the aforesaid findings of fact. For this purpose, they rely upon the wordings of Article 1741 of the French Code. They contend that the learned District Judge, having found default on the part of the lessee in not paying rents for six months, should have held that the tenancy had been automatically dissolved in view of the provisions of Article 1741 of the French Code and, therefore; notice or no notice the Plaintiffs lessors would be entitled to the desired decree of ejectment. As much depends upon the interpretation to be put upon Article 1741, it may be found useful to reproduce below the same along with certain other Articles that have a bearing on the subject. Article 1741. Hiring may take place either verbally or by writing. Article 1717. The lessee has the right to underlet or even to assign the lease to another if such power has not been restricted. He may be restricted as respects the whole or in part. This Article is always peremptory. Article 1728. The lessee is subject to two principal obligations - Just. To use the thing hired in a careful manner and according to the destination which was given to it by the lease or according to that which may be presumed from the circumstances in default of agreement. 2nd. To pay the price of the lease in terms agreed upon. Article 1736. If the lease is without writing, one of the parties cannot give discharge to the other without observing the intervals fixed by the usage of the place. Article 1737. The lease ceases absolutely at the expiration of the terms fixed where it has been made in writing without its being necessary to give discharge. Article 1738. If at the expiration of written leases, the lessee remains and is left in possession, a new lease is effected, the operation of which is regulated by the Article relative to herrings made without writing. Article 1739. Where there has been a discharge signified, the lessee, though he has continued this enjoyment, cannot insist upon tacit rehiring. Article 1740. In the case of two preceding Articles, security given for the lease does not extend to obligations resulting from prolongation. Article 1741. The contract for hiring is dissolved by loss of the thing hired and by respective default of the lessor and lease in fulfilling their engagement.;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.