D.K.SETH, J. - (1.) The moot question raised in this appeal by Mr. S. P. Roychowdhury and opposed by Mr. S. Dasgupta, respective learned Counsel for the parties, is the question of ascertaining as to whether there was a new letting out superseding the lease for 25 years outside the purview of West Bengal Premises Tenancy Act, excepted by Section 3 and creating tenancy within the purview of the 1956 Act. The question traversed on a thin line of distinction as was ably argued by the respective learned counsel, which is not free from doubt But one thing is clear that from the materials on record it is to be found out as to whether there was an intention to create a new tenancy and that was there any implied surrender of the old tenancy. The change in identity of the properly or alteration of rent might be construed to presume an implied surrender and creation of new lease. But this distinction is based on facts and the law is to be applied having regard to the facts and circumstances brought out on record. The other question that was raised is with regard to the mesne profits, as to whether the court would refer the matter for a decision under Order 20 Rule 12 of the Code of Civil Procedure or a decision given by the Court determining the mesne profits would amount to fixation of the mesne profits leaving the determination of the amount under Order 20 Rule 12 of the Code of Civil Procedure without altering the finding about the rate of the mesne profits decided by the Court. Change of identity : Was there any ?:
(2.) In the present case, in the Deed of Lease, covered space was let. out It appears to us that the covered space was converted, into a room and thus there was a change in the identity of the property and thus by reason of change of identity, a new tenancy was created. Coupled with this, the enhancement of rent was also a ground seeking to add relief to the creation of a new tenancy. However, we will be examining the question of enhancement of rent at a later stage. 2.1. The identity of the property admittedly is sought to be distinguished only with the expression "covered space" and "the room". Admittedly, in the Deed of Lease, it was referred to as covered space. In the plaint, recovery was sought for the covered space. In the written statement, it was sought to be described as a room. The plaintiff sought to amend the plaint seeking to change the description of the suit property as the room. But this amendment was refused by the learned Trial Court. On revision this Court also rejected the amendment. Therefore, the parties proceeded on the basis of the pleadings available on record, namely, the recovery of possession of covered space. In the deposition, the plaintiff had described the property as a room. 2.2. On this basis Mr. Roychowdhury had pointed out that the plaintiff had admitted that he was seeking recovery of possession of room and not of a covered space. This definitely indicates a change in the identity of the property leading to the presumption of an implied surrender and creation of a new lease/tenancy other than the Deed of Lease for 25 years, excepted under Section 3 of the 1956 Act. Admittedly, the defendant had admitted in his deposition that there was a roof all along over the covered space. It was only one door that was installed. With the installation of a door, the room was alleged to have been created. It was never contended that the measurement of the area occupied by the defendant in his tenancy was increased or decreased. Neither there is anything on record to show that the situation of the property was deviated from the place where it was originally situated. Thus the only foundation in the identity is with regard to the covered space and the room, which admittedly did not deviate from the measurement originally agreed in the earlier situation. There is no allegation that a major change or structural alteration or construction was undertaken in the covered space for making the same a room. In common parlance, a room is also a covered space but a room has its walls, windows and doors. The covered space may not have its windows on doors. The tenancy was for the purpose of carrying on the business. Admittedly, this business was being carried on from the premises. The change that was effected seems to be cosmetic which might have converted the space into a rooms By this cosmetic change, it does not appear that there was a change in the property, which might lead us to presume an implied surrender or creation of a new letting out. 2.3. Mr. Dasgupta, learned Counsel for the respondent, had referred to the decisions in Longford Property Co. Ltd. vs. Batten. 1950 (2) All England Reports 1079 at p. 1088 and Mitchell vs. Barnes & Ann, 1949(2) All England Reports 719 at p. 721 to support his contention that the cosmetic change that has been effected in the present case does not lead to change of identity of the property. In Mitchell (supra), some wooden partitions had been erected for dividing the top two floors from the bottom floor and the house was converted into two flats. Even then it was held that there was no change of identity; It was further held that if there was a great deal of structural work, it could have been said that there was a degree enough to conclude a change in the identity. But this case was related to the specification of standard rent under the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. Therefore, the question was directed from the angle as to whether such changes would entitle the landlord to claim enhancement of the standard rent on account of change of identity. This might not throw any light as to whether changing of the house into two flats would amount to change in the tenancy or a new letting out. But then we may also find that the rent could be enhanced even when there is a new letting out by change of identity. Therefore, the principle of change of identity can be drawn from this decision. Inasmuch as unless there are substantial enhancement of the utility of the property by making substantial alteration thereof involving some amount of structural work, mere construction of the wall or fixation of a door would not lead to change of identity of the property. As, in the present case in Longford Property Co. Ltd. (supra), it was held that the question relates to the identity of the property, it had referred to certain decisions and observed that those decisions were all based on the theory that the act of the parties in arranging a new letting can destroy the entity of a dwelling house, a former letting of which had attracted a standard rent, and can create a new standard rent for the new entity which Is the subject of the new letting. The court further observed that there was ho simple general rule, which could provide an answer. It is in substance a question of fact whether a dwelling house, the standard rent of which is to be ascertained, is the same as one previously let, is said to have changed its identity by reason of some unimportant variation in the content of the tenancy. The question is not so much whether the premises are in all respects the same and whether the dwelling house now in question is the same dwelling house as before. Trivial variations a few feet here or thereought not to be treated as causing a change. It is a question of degree in, respect of which there is no absolute test. It is not the maxim de minimis, which stands between continuing identity and a change of identity, but the fact that only a substantial variation in what is lot can justify a finding that there is a new dwelling house for the purposes of the Act. The above decision clearly supports our view that we have taken that unless there are substantial variations, the cosmetic variation would not confer a different identity on the property. 2.4. In the present case, as we have found, the cosmetic changes that are introduced might have converted the covered space into a room but has not changed the identity of the covered space to such extent as to destroy the earlier tenancy and create a new one on changing the identity of, the property. Enhancement of mat : Creation of new tenancy:
(3.) Now we may divert our attention to the question of enhancement of rent, which might be one of the factors to lead us to presume that there was a new letting. In the present case, the Deed of Lease, which is Ext. I, contains the measurement of the area leased out for 25. years admittedly outside the purview of the West Bengal Premises Tenancy Act. 1956. Clause 5 of the Deed of Lease provides that the lessee shall carry out all repair to the demised portion of the premises at his own cost during the period of this Lease. If, in the name of repair, the covered space was built as introduced and it is not objected to by the lessor, then it cannot be said that there was a real change in the identity of the property unless by reason of substantial enhancement of the utility of the property the rent is also enhanced. Clause 13 of the Deed of Lease provides that an the Municipal rates and taxes both owner's and occupier's shares was payable in respect of the demised premises by the Lessor, but in case the Municipality increases the valuation of the demised permoises the Lessee would be bound to pay the proportionate increase in both shares in addition to the monthly rents. In the plaint it is pleaded that the agreed rent stipulated in the Deed of Lease was Rs. 90/- and that there had been successive enhancement in the assessment of the valuation, which is apparent, from Ext. 3 series. It is contended that the rent also was increased from Rs. 90/- to Rs. 92/-, Rs. 95/- and ultimately to Rs. 116/-. there are sufficient materials to show that the valuation having been increased, the taxes were also increased and that the rent was also increased on the basts of enhancement in the taxes payable. Though there is nothing to show as to the extent of the share of the defendant payable on account of such increase, but still then if certain amount is agreed on account of such increase and is paid, in the event. it is nothing mere than the increase in the rent on account of the increase or enhancement of the valuation and taxes payable pursuant to the agreement contained in the Deed of Lease. Thus it was not the rent for a new letting, but it was an increase in the ratio of the rent pursuant to the agreement included in the Deed of Lease itself. Thus, having regard to the present facts and circumstances of the Case and the materials available on record, we do not think that the increase in the rent factor would lead us to presume a new letting. In case there is a change of identity and the utility of the property is substantially enhanced, then there must be an increase in the rent. If both the things are coupled together, then there can be presumption of a new letting. However, until and unless there is such material, it is very difficult to presume a new letting. 3.1. Mr. Dasgupta had relied on the decision in Savita Dey vs. Nageswar Majumder & Anr., 1995 (6) SCC 274. The Apex Court had held in paragraph 10 of the said decision as quoted below : "10. Now on the trial scene, we find that the argument of the tenant- respondents about the increase of rent and novation of contract was rightly rejected by the trial court. There is no flexible principle that every variation in the rate of rent payable under a registered deed of lease necessarily implies surrender of the said lease and creation of a new tenancy, or that whenever rate of rent is altered a new relationship between the parties gets created. By mere Increase or reduction of rent, surrender of the existing lease and the grant of a new one, cannot be inferred in each case. It Is a question of fect to be determined. See in this regard Goppulal vs. Thakurji Shriji Shrijt Dwarakadheeshji. Instantly in the deed itself provision had been made whereby the lessee had undertaken to pay a proportionate increase in the share of municipal taxes If In future the rate and . taxes get increased by the Calcutta Municipal Corporation in respect of the demised premises. The increase of Rs. 26 per month In the agreed upon rent has rightly been found to be because of increase in taxes. And since they were conceived of and stipulated in the deed itself, no question of novation of contract could ever arise or on that event creation of new tenancy, so as to lift the protection in the landlord available under Section 3(1) of the Act." 3.2. Mr. Dasgupta had referred to the decision in D. S. Commercial Pvt. Ltd. vs. Shree S. S. Jain Sabha, AIR 1984 Cal 194 where the question of change of relationship had cropped up. It appears from (he said decision that the distinction is very thin. It is to be ascertained on the basis of the materials available. The Court is required to direct itself to examine flae fact of the case as to whether the parties had intended to create a new relationship and that there would be an implied surrender. It was further held that there would be no implied surrender of previous lease merely because the rate or rent had been altered. But in case the parties had intended to create a new relationship and in pursuance thereof alter the rate of rent previously payable, by operation of law the previous lease is determined. Therefore, when the rate of rent is altered, the question that is to be examined is whether the parties had intended to create a new relationship between them or the parties had merely agreed to altered rate of rent. It is not always that alteration of rate of rent would amount to implied surrender and creation of new tenancy. If there was a registered Deed of Lease, then it becomes very difficult to presume a creation of new relationship varying the essential terms of the registered Deed of Lease. Applying the above test in the present case, we do not find that the parties had ever intended to create a new lease particularly when there was no alteration in the rent except in accordance with the agreement contained in the Deed of Lease itself which would never amount to creation of a new lease on account of alteration of rent in terms of the conditions contained in the lease. 3.3. We find the observation made by the Apex Court and that of this court, in the above decisions. that a change in the rent necessarily does not imply surrender of the tease and Creation of a new tenancy. If the lease itself contained a clause, for such purpose, then it cannot be construed to mean a creation of a new lease resulting into novation of the contract Even if there is a change in the rate of rent, still then It was in terms of the conditions contained in the Deed of Lease and, therefore. It would not amount to novation of the contract and thus amounting to implied surrender of tenancy or creation of a new tenancy as has been sought to be put forward by Mr. S. P. Roychowdhury. Can the plaintiff recover the room not pleaded in plaint ? :;