MUKUL BHATTACHARYYA Vs. SURAJ KUMAR GUHA
LAWS(CAL)-1996-9-30
HIGH COURT OF CALCUTTA
Decided on September 23,1996

Mukul Bhattacharyya Appellant
VERSUS
Suraj Kumar Guha Respondents


Referred Judgements :-

NAWAL KISHORE AGARWALLA V. SAMARENDRA NATH SHAW [REFERRED TO]
KESHHARDEO SINGHANIA VS. PURUSHOTTAMDAS BHIWANWALA [REFERRED TO]


JUDGEMENT

SUDHENDU NATH MALLICK,J. - (1.)THIS Second Appeal has been preferred by the defendant-tenant-appellant against the udgment and decree of eviction dated 15.2.1985 passed by the learned Assistant District Judge, West Dinajpur, Balurghat in O.C. Appeal No. 80 of 1983 affirming the judgment and decree of eviction dated 30.4.1983 passed by the learned Munsiff, Raiganj in O.C. Suit No. 70 of 1979. The suit was brought by the plaintiff-landlord-respondent for evicting the tenant from the suit premises on three grounds viz. default, violating the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act and reasonable requirement of the suit premises for the own use and occupation of the landlord after building and rebuilding under the provisions of Section 13 of the West Bengal Premises Tenancy Act. The suit was decreed on all the three grounds. The relationship of landlord and tenant between the parties was denied by the appellant but both the trial Court and the lower appeal Court on consideration of the evidence on record have found that such relationship exists between them in respect of the disputed premises.
(2.)THE case may be briefly stated as follows :- It is alleged in the plaint that the pro-defendant No. 7 who is the father of the present appellant was inducted as a tenant in the suit premises by the pro-defendant No. 2 as Karta of the undivided Hindu family comprising the plaintiff and the defendants 2 to 6 at a rate of Rs. 75/- per month payable according to English Calendar. The suit premises as described in the plaint consist of one 'Charchala ghar' with pucca floor and another ghar of splited bamboo. It is stated that after the creation of the Tenancy Act pro-defendant No. 7 with the permission from pro- defendant No. 2 raised one drum tin shed there for the purpose of his business and the premises was used as a Kathgola shop. On 1.5.1975 the pro-defendant No. 7 surrendered his tenancy in favour of the pro-defendant No. 2 with a prayer to transfer the same in favour of his son the present appellant which was allowed. The present appellant became a tenant in respect of the suit premises under the pro-defendant No. 2 as Karta of the joint family at a rental of Rs. 75/- per month payable according to English Calendar. The joint property was thereafter partitioned among the present plaintiff-respondent No. 1 and co-sharers by a registered deed of partition dated 26.10.75 and the suit premises fell to the share of the present plaintiff-respondent No. 1 (vide Ext. 2). The present appellant was requested by the plaintiff to pay rent exclusively to him verbally on 1.1.75 and thereafter he again asked the defendant to pay rent by a registered letter dated 3.10.75. But the defendant did not pay any rent to him since Januray, 1975. Furthermore, the defendant without the permission of the plaintiff altered and extended the drum tin temporary structure and also obtained electric connection. By amendment of plaint dated 28.7.1979 the plaintiff further incorporated a story that the defendant has illegally constructed a corrugated iron sheet roof challa and extended the verandah and has also sublet a portion of the suit premises to one Basudeb Kumar illegally. It has been further alleged by way of amendment in the plaint that the defendant was causing nuisance and annoyance to the plaintiff and his neighbours. It is the further case of the plaintiff that he requires the suit premises for the purpose of building a kitchen, bath-room, privy, a drawing room and also for constructing a passage for ingress and egress. It is stated in the partition deed that the plaintiff after the partition would construct his own latrine, bathroom etc. on the properties allotted to him.
The defence case is that he has all along been depositing rent with the Rent Controller since January, 1975 in the name of the plaintiff and defendant No. 2. He has also denied the validity and service of the notice to quit, the relationship of landlord and tenant between the parties, violation of the provisions of Clauses 9 (m), (o) or (p) of Section 107 of the T. P. Act. He has also denied the allegation of illegal sub-letting and causing nuisance and annoyance. He has denied the plaintiff's story of reasonable requirement of the suit premises for his own use and occupation after re-building. The grounds of sub-letting and nuisance and annoyance were rejected by the trial Court and the findings were not challenged in the First Appeal. In the instant appeal the appellant has challenged the concurrent findings of both the Courts below regarding default, violation of the Clauses (m), (o) or (p) of Section 108 of the T.P. Act and reasonable requirement. Both the Courts below have found that the defendant-appellant became a monthly tenant in respect of the disputed premises under the plaintiff-respondent No. 1 w.e.f. January, 1975. This concurrent finding of fact cannot be challenged here as it does not involve any substantial question of law and the learned Advocate appearing for the appellant has conceded that there is no material to challenge this finding on point of law. Mr. Ghosh, the learned Advocate appearing for the appellant, however, submits that the finding of default made by both the Courts below is wholly against law. In this connection he has referred to the order No. 18 dated 21.3.78 passed by the learned Munsif rejecting the plaintiff's application under Section 17(3) of the West Bengal Premises Tenancy Act. It appears from the said order that the learned Munsif on consideration of the evidence on record came to a finding that the deposits made by the defendant with the Rent Controller in respect of the suit premises from January, 1975 were all valid deposits after taking note of the fact that the challans were in favour of the admitted landlord i.e. pro-defendant No. 2 and also the plaintiff. The learned Munsif also recorded the admission of the plaintiff that he got notices from the Rent Controller after such deposits were made by the defendant. Considering all these the learned Munsif came to a definite finding that the defendant-tenant was not a defaulter in the matter of payment of rent. The learned Munsif also observed that as the defendant has denied the relationship between the landlord and tenant in respect of the disputed premises such a question is to be decided first. And it appears that the learned Munsif left that question to be decided at the time of hearing. The learned Munsif also found that till such point is decided according to law there is no question of striking out of defence under Section 17(3) of the West Bengal Premises Tenancy Act and as such he rejected the application. I have already noted that in the trial Court's judgment the relationship of landlord and tenant between the parties in respect of the suit premises has been found it has also been confirmed by the Appeal Court. But the trial Court in the impugned Judgment has found the defendant to be a defaulter in the matter of payment of rent since January, 1975 as such rents were not deposited in accordance with the provisions of the West Bengal Premises Tenancy Act. Mr. Ghosh has submitted that such a subsequent finding of the learned Munsif after the disposal of the 17(3) application and confirmed by the Appeal Court would be hit by the principles of res-judicata. He has submitted that the learned Munsif while dismissing of the 17(3) application has clearly found that the defendant is not a defaulter and that he has been variedly depositing such rents with the Rent Controller since January, 1975. According to Mr. Ghosh such a finding is not temporary or provisional in nature so as to be varied or altered at the time of final heraing of the suit. The submission of Mr. Gbosh appears to be legally sound. When the defence against delivery of possession of a tenant is struck out under Section 17(3), he cannot re-open the question or his plea at the time of final hearing of the suit and such order is binding upon both the parties unless set aside by a superior Court. Similarly, as in the present case, the trial Court on consideration of evidence and materials on record has found the defendant not to be a defaulter and has held all his deposits with the Rent Controller as valid deposits in the proceedings under Section 17(3) of the West Bengal Premises Tenancy Act, there cannot be any deviation from such order or alteration of the order at the time of final hearing of the suit, unless the order has been set aside by a superior Court or there are new facts or subsequent change in circumstances. An order under Section 17(3) certainly does impinge on the legal rights of the parties to the litigation and as such the principles of res-judicata do apply to such findings on which the orders are based. In my opinion, the judgment of the Supreme Court in AIR 1964 SC page 993, Arjun Singh, Appellant v. Mahindra Kumar and others, Respondents, lends support to this view. This legal aspect of the matter has not been considered by both the Courts below while coming to the finding on default and as such, as Mr. Ghosh submits, they have committed an error in law giving rise to a substantial question of law to be decided by this High Court in the second appeal. Mr. Ghosh in support of his contention has referred to a decision of this High Court reported in (1988)1 Cal LJ page 34, Nawal Kishore Agarwalla, Petitioner v. Samarendra Nath Shaw, Opposite Party. It has been held there following the decision of the Supreme Court reported in AIR 1983 SC page 354, Kahhardeo Singhania v. Purushottamdas that when tenant deposits rent in the name of one plaintiff-landlord out of many, it is sufficient, for the rent can be withdrawn by one landlord which is tantamount to payment to all the landlords. In the instant case admittedly the pro-defendant No. 2 was the original landlord acting on behalf of the body of landlords comprising the plaintiff and the pro-defendant Nos. 2 to 6 being the Karta of the joint family. After the partition the property was allotted to the present plaintiff. Although the deposits were made with the Rent Controller in the name of both the plaintiff and pro-defendant No. 2 there was no legal bar to the plaintiff's withdrawing the said deposits. Furthermore, the admitted position is that the plaintiff got repeated notices front the Rent Controller in respect of the said deposits. Under the circumstances and in view of the above legal position I must hold that the findings of both the Courts below on the point of default as a ground of eviction made against the present appellant is against law and as such cannot be allowed to stand. The point or issue of default has been wrongly determined by both the Courts below by reason of wrong decision on such question of law as is referred to in Section 100 of the Civil Procedure Code. So, by exercising the powers under Section 103 of the Civil Procedure Code this Court determines the issue of cloth business and thereafter tent house in the disputed premises and his business has acquired a goodwill and there is no accommodation in which he can carry on the aforesaid business. He also denied if Ravi Prakash Goel was grandson (Nati) or a member of her family. He also denied if the landlady was dependent on the earnings of Ravi Prakash Goel, and claimed that the landlady does not require the premises for any business because she is already receiving sufficient rent for her livelihood. Ravi Prakash Goel and his family are living independently although in the same house. The landlady has no concern with his business. He denied if there was any sufficient accommodation with him in the Sarika Lodge about which he had claimed that he has let out the same to his own sons Pradeep Kumar and Pramod Kumar, besides, the rooms are quite small. It is claimed that one son is living independently and the other son Madan Lal is living in the city separately and his second son Mool Chand is carrying on business of tent house in the disputed premises. He himself is residing in a rented house and there is no other accommodation available for him to shift his business of tent house.

(3.)LEARNED Prescribed Authority (Munsif, Bahraich) considered the case of the parties and the evidence and came to the conclusion that the landlady is aged widow, besides her widowed daughter and her family are residing with her and looking after her needs and Ravi Prakash Goel being the son of her widowed daughter is living and supporting the entire family. It was held that Ravi Prakash was selling goods etc. outside the house on a wooden platform and income is not sufficient for the survival of the entire family and the landlady intends to extend her business by installing a flour mill along with rice and pulses thrashing machines to augment her source of income. It was also found that the tenant-respondent has sufficient accommodation with him, e.g., Sarika Lodge which although is ostensibly let out to his own sons on payment of rent. However, they were living with the tenant and he is supporting them because, according to the tenant himself, their business is not having any profit. Besides, there was no evidence if the rooms in the Sarika Lodge were not sufficiently big to accommodate the business of tent house. The Prescribed Authority also considered the comparative hardship and came to the conclusion that the landlady was in dire need of the accommodation which is bona fide one and the tenant has alternative accommodation to shift and continue his business. Application for eviction of the tenant was thus allowed.
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