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West Bengal Premises Tenancy Act – s.13(6) – Notice for termination of tenancy – Validity of – Eviction suit – Decreed by trial court – First appellate court, however, set aside the decree holding that the notice of termination of tenancy was not valid as it did not end with the month of tenancy – High Court affirmed the decree of trial court – Respondent-tenant filed SLP – Matter remitted back to High Court to consider the validity of the notice of termination of tenancy having regard to the fact that the rent note / agreement of tenancy was unregistered – High Court affirmed the order of first appellate court holding that the notice of termination of tenancy fell short of the requirement stipulated by s.13(6) of the Tenancy Act – On appeal, held: Non-registration of the rent note /agreement of tenancy was rendered insignificant in view of the pleadings of the parties on the question of month of tenancy – The defendant did not question the facts material to the creation of the tenancy – Specific averment in the plaint to the effect that the rent for the premises was payable monthly according to the English Calendar was overlooked by the first appellate court – The ejectment notice having been served on 15th January, 2000, the defendant-tenant had one month’s clear time till the end of February, 2000 to vacate the premises and to deliver the possession thereof to the plaintiff – The first appellate court wrongfully held that since the tenancy in the instant case had started on the 11th day of the English Calendar month, in order to be legally valid, the notice of termination ought to have demanded delivery of possession by the 11th and not the end of February, 2000 – Even if the unregistered rent note / agreement of tenancy was executed on a date other than the first of English or any other calendar month, the parties were always free to agree that the month of tenancy would commence from any other date including the 1st day of the succeeding month – Decree passed by trial court restored – Transfer of Property Act, 1882 – s.106. The plaintiff-appellant filed a suit for eviction and recovery of possession and mesne profits against the respondent. The plaintiff claimed that the suit property was let out to the respondent on month to month basis. The tenancy was, according to the plaintiff, for a period of five years only and was determined in terms of a notice issued under Section 13(6) of the West Bengal Premises Tenancy Act and Section 106 of the Transfer of Property Act. The trial court decreed the suit. Aggrieved, the tenant appealed to the first appellate court, which set aside decree passed by the trial court. On second appeal, the High Court set aside the order passed by the first appellate court and affirmed the judgment and decree passed by the trial court. The respondent-tenant preferred civil appeal by way of special leave petition which was allowed by this Court and the matter remitted back to the High Court to consider the validity of the notice of termination having regard to the fact that the agreement of tenancy executed between the parties was an unregistered document. The High Court, pursuant to the said order, examined the effect of the unregistered document and held that the same could be used in evidence for a collateral purpose and, when so used, the notice of termination of tenancy issued on behalf of the landlady fell short of the requirement stipulated by Section 13(6) of the West Bengal Premises Tenancy Act. The High Court accordingly dismissed the appeal and affirmed the dismissal of the suit by the First Appellate Court. The appellant filed the instant appeal assailing the correctness of the said judgment and order of the High Court. =Allowing the appeal, the Court HELD:1. The question regarding validity of the notice of termination can be examined by reference to the averments made in the pleadings of the parties. It is evident from a plain reading of the assertions in the plaint and the written statement that the defendant did not question the facts material to the creation of the tenancy nor was it disputed that the tenancy was a month to month tenancy on payment of a rent of Rs.500/- for every English Calendar month. It is true that the defendant-respondent had disputed the service of the notice terminating the tenancy of the defendant as also its validity and sufficiency but it is equally true that the legality of the notice was not assailed on the ground that the notice did not conform to the month of tenancy. As a matter of fact the assertion made by the appellant that the monthly rental of Rs.500/- was payable according to the “English Calendar Month” was not denied by the defendant in the written statement nor was any suggestion to the contrary made as was sought to be done at a later stage of the litigation between the parties. Such being the position, it was for all intents and purposes agreed and accepted between the parties that the rent settled for the demised premises was payable according to the English Calendar month. The issue related to the validity of the notice of termination, which had to be answered on the admitted premise that the tenancy was on a month to month basis and the rent of Rs.500/- p.m. was payable according to the English Calendar month. [Paras 7, 10] [939-D; 942-A-D; 941-G-H] 2. The trial court rightly examined the question of legality of the service of the notice on the basis of the available material and the pleadings on the subject and came to the conclusion that the notice in question received by the wife of defendant-tenant was duly served upon the defendant on the 15th January, 2000. The trial court further held that the ejectment notice having been served on 15th January, 2000, the defendant had one month’s clear time till the end of February, 2000 to vacate the premises and to deliver the possession thereof to the plaintiff. The issue was accordingly answered in favour of the plaintiff and against the defendant-respondent. The first appellate court, however, took a contrary view. It held that the notice of termination of tenancy was not valid as it did not end with the month of tenancy of the defendant. Relying upon the stipulation contained in the tenancy agreement, the first appellate court held that the tenancy in the instant case had started on the 11th day of the English Calendar month and that in order to be legally valid, the notice of termination ought to have demanded delivery of possession by the 11th and not the 29th February, 2000. The notice was accordingly held to be invalid and the suit filed by the appellant liable to be dismissed. In taking that view, the appellate court failed to appreciate that even when the unregistered agreement of tenancy had been executed on 11th of September, 1993, the same did not mean that the month of tenancy would commence from the 11th of every succeeding month, over the period for which the same was created. The first appellate court also failed to appreciate that even when the rent note/agreement of tenancy was executed on a date other than the first of English or any other calendar month the parties were always free to agree that the month of tenancy would commence from any other date including the 1st day of the succeeding month. That there was a specific averment made in the plaint to the effect that the rent for the premises was payable monthly according to the English Calendar was also overlooked by the First Appellate Court. That the said averment had not been disputed by the tenant was also not noticed by the first appellate court and even by the High Court. These facts were important and held the key to the determination of the question whether the notice had validly terminated the tenancy. The High Court had in the first order passed by it correctly held the notice of termination of tenancy to be legally valid. After the matter was remanded back to it to consider the effect of non-registration of the rent note/agreement of tenancy it has taken a view that is not appealing. It is true that the non-registration of the rent note does not debar the use of a document that is compulsorily registerable for collateral purposes but that aspect would in the instant case pale into insignificance keeping in view the state of pleadings on the question of month of tenancy and the legal implications thereof. [Para 11] [942-E-H; 943-A-G] 1.3. The impugned order passed by the High Court and that passed by the first appellate court are hereby set aside. Consequently, the judgment and decree passed by the trial court shall stand restored. [Paras 12] [943-H; 944-A] CIVIL APPLLATE JURISDICTION : Civil Appeal No. 10053 of 2010. From the Judgment & Order dated 16.09.2009 of the High Court at Calcutta in Second Appeal No. 29 of 2006. S.B. Upadhyay, Dharmendra Kumar Sinha, Santosh Mishra for the Appellant. Pijush K. Roy, Mithilesh Kumar Singh for the Respondent

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 REPORTABLE

 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICITION

 CIVIL APPEAL NO. 10053 OF 2010
 (Arising out of SLP (C) No.34267 of 2009)

Shibani Basu ...Appellant

 Versus

Sandip Ray ...Respondent

 JUDGMENT

T.S. THAKUR, J.

1. Leave granted.

2. This appeal by special leave is directed against a

judgment and order dated 16th September, 2009 passed by

a Single Judge of the High Court of Calcutta whereby Second
 2

Appeal No.29 of 2006 filed by the appellant herein has been

dismissed and the judgment and order passed by the First

Appellate Court dismissing the suit for eviction filed by the

appellant affirmed.

3. The plaintiff-appellant herein filed a suit for eviction

and recovery of possession and mesne profits against the

respondent. The plaintiff alleged that the suit property

comprising two rooms with an attached verandah consisting

of kitchen space situate on the ground floor of No.6-A

Chandibari Street, Calcutta was let out to the respondent on

month to month basis. The tenancy was, according to the

plaintiff, for a period of five years only and was determined

in terms of a notice dated 14th January, 2000 issued under

Section 13(6) of the West Bengal Premises Tenancy Act and

Section 106 of the Transfer of Property Act. The plaintiff

further alleged that the defendant-respondent was in default

of the payment of rent since the month of November 1995.

The respondent was also accused of committing nuisance

and constructing a pucca wall of permanent nature without
 3

her consent. The plaintiff claimed eviction of the respondent-

tenant on the above grounds and on the ground of

reasonable personal requirement of the plaintiff and her

family members who did not have any alternative

accommodation for them. The eviction of the respondent

was also sought on the ground that the suit premises was

required for rebuilding.

4. The suit was contested by the defendant-respondent

who filed a written statement in which the material

averments made by the plaintiff were dealt with. What is

significant is that the defendant-respondent admitted that

he was inducted by the plaintiff in the suit premises in terms

of an agreement of tenancy and that he was holding the

premises as a month to month tenant not only in respect of

the attached verandah comprising kitchen space but the

bath room privy for his exclusive use. The allegation that the

tenant had created nuisance or caused annoyance to the

landlady or made any illegal construction in the suit

premises or that the property was required by the plaintiff
 4

for her own use and occupation or re-construction were also

denied.

5. On the pleading of the parties the Trial Court framed as

many as 13 issues besides three additional issues and

decreed the suit with cost by its order dated 22 nd February,

2005. The defendant was given three months time to vacate

the premises in question. Aggrieved by the said order, the

tenant appealed to the First Appellate Court who allowed the

same and set aside the judgment and decree passed by the

Trial Court. A second appeal was then filed by the appellant-

herein before the High Court of Calcutta which appeal

eventually succeeded and was allowed by the High Court by

its order dated 16th May, 2008 whereby the judgment and

decree passed by the Trial Court was affirmed and that

passed by the First Appellate Court set aside. Aggrieved by

the said judgment the respondent-tenant preferred Civil

Appeal by way of special leave petition (No.2637 of 2009)

before this Court which was allowed by this Court by an

order dated 17th April, 2009 and the matter remitted back to
 5

the High Court to consider the validity of the notice of

termination having regard to the fact that the agreement of

tenancy executed between the parties was an unregistered

document. The High Court has pursuant to the said order

examined the effect of the unregistered document and come

to the conclusion that the same could be used in evidence

for a collateral purpose and when so used the notice of

termination of tenancy issued on behalf of the landlady fell

short of the requirement stipulated by Section 13(6) of the

West Bengal Premises Tenancy Act. The High Court has

accordingly dismissed the appeal and affirmed the dismissal

of the suit by the First Appellate Court. The present appeal

assails the correctness of the said judgment and order of the

High Court.

6. We have heard learned counsel for the parties. In paras

1 and 2 of the plaint, the plaintiff-appellant had asserted her

being the landlady and the suit premises having been let out

to the defendant-tenant on a month to month tenancy on a

rental of Rs.500/- p.m. payable according to the English
 6

Calendar month without any electricity for a period of five

years only. That assertion was made ostensibly because of

Clause 3 of the Agreement of Tenancy which is in the

following terms:

 "3. That the monthly rent in respect of the
 aforesaid tenancy has been fixed at Rs.500/-
 (Rupees five hundred) payable by the Second Party
 to the Landlady/First Party within the 15th day of
 next month according to the English Calendar."

7. Since, however, the Agreement of Tenancy was

unregistered though the same was compulsorily registerable

we cannot make much use of the above stipulation. The

question regarding validity of the notice of termination can

nevertheless be examined by reference to the averments

made in the pleadings of the parties. Paras 1 and 2 of the

plaint are in this regard relevant and may be extracted:

 "1. That the Plaintiff is the owner and Land-Lady of
 the premises No.6A, Chandi Bari Street, Police
 Station Burtolla, Calcutta 700006.

 2. That the Defendant is a monthly tenant under
 the Plaintiff in respect of two rooms, with attached
 verandah consisting of kitchen space along with
 7

 common user of bath room and privy on the Ground
 Floor at premises No.6-A Chandi Bari Street, Police
 Station Burtolla, Calcutta 700 006 on monthly rental
 of Rs.500/- payable according to English Calendar
 month without any Electricity, only for 5 years."

8. What is noteworthy in the averments made in para 2

above is that the respondent is a month to month tenant

and the rental of Rs.500/- p.m. is payable according to the

English Calendar month. In reply to para 2 the defendant,

inter alia, admitted that he was inducted as a month to

month tenant by the plaintiff. The defendant gave an

explanation as regards the description of the premises let

out to him which is not material for the purpose of the

present appeal. Para 5 of the written statement in which the

defendant-respondent answered the averments made in

paras 1 and 2 of the plaint extracted above is as under:

 "5. That with reference to the statements made in
 paragraphas 1 and 2 of the plaint are the matters of
 record and as such the plaintiff is to prove the same.
 The defendant states that he never inspected the
 title deed in respect of the suit building but several
 suits and proceedings were/are pending between the
 plaintiff and her daughter Purnima Roy in different
 courts. It is a fact that the defendant was inducted
 by the plaintiff on 11.9.93 at the suit premises by
 8

 executing an Agreement of tenancy on the terms and
 conditions are mentioned therein and the said
 tenancy agreement be treated as a part of the
 written statement. It is true that at the time of the
 filing of the suit the defendant is a monthly tenant
 under the plaintiff but not in respect of the suit
 premises only. The defendant states that the
 defendant is a tenant in respect of two rooms with
 attached verandah consisting of kitchen space along
 with bath and privy for exclusive use of the
 defendant but not common. The plaintiff in
 pursuance of clause 5 of the said agreement of
 Tenancy could not provide separate bath and privy
 according to the plaintiff, due to the resistance
 occasioned by her daughter Purnima Roy and her
 family members within one year, as a result the
 plaintiff granted the existing bath and privy to the
 defendant for his exclusive use and enjoyment but
 the defendant could not use and enjoy the same
 exclusively for the said Purnima Roy and her family
 members who are also using the same bath room
 and as the Plaintiff is not residing at the suit building
 and there is a strange relation between the Plaintiff
 and the said Purnima Roy, the Plaintiff has been
 residing at 3, Parry Mohan Sur Lane, Calcutta, which
 is situated near the suit building, she has no
 personal need of the aid bath and privy."

9. Then comes the averment made by the plaintiff-

appellant in para 3 of the plaint in which the plaintiff

asserted that the tenancy of the defendant had been duly

determined by service of a composite notice issued under

Section 13(6) of the West Bengal Premises Tenancy Act and

Section 106 of the Transfer of Property Act asking the
 9

defendant to vacate and deliver the possession of the suit

premises before the expiry of the month of February 2000.

The reply to the said averment is found in para 6 of the

written statement where the defendant has dealt with paras

3, 4 and 5 of the plaint together in the following words:

 "6. That with reference to the allegations made in
 paragraph 3, 4 and 5 of the plaint the defendant
 denies the same. The defendant specifically denies
 that the tenancy of the defendant has duly been
 determined by the ejectment notice dated 14.1.2000
 or any such notice. So far as knowledge and the
 memory of the defendant never received the
 ejectment notice by putting his signature on the A/D
 card on 15.1.2000 or any date. The defendant
 states that the alleged ejectment notice, if any, is
 not legal, valid and sufficient and the entire tenancy
 of the defendant never been determined by any such
 notice dated 14.1.2000 and the relationship of
 landlord and tenant in between the plaintiff and
 defendant is still in existence and as such the
 question of deliver up the vacant possession to the
 plaintiff does not or cannot arise at all, and the
 payment of any mesne profits does not arise."

10. It is evident from a plain reading of the assertions in

the plaint and the written statement extracted above that

the defendant did not question the facts material to the

creation of the tenancy nor was it disputed that the tenancy

was a month to month tenancy on payment of a rent of
 10

Rs.500/- for every English Calendar month. It is true that

the defendant-respondent had disputed the service of the

notice terminating the tenancy of the defendant as also its

validity and sufficiency but it is equally true that the legality

of the notice was not assailed on the ground that the notice

did not conform to the month of tenancy. As a matter of fact

the assertion made by the appellant that the monthly rental

of Rs.500/- was payable according to the "English Calendar

Month" was not denied by the defendant in the written

statement nor was any suggestion to the contrary made as

was sought to be done at a later stage of the litigation

between the parties. Such being the position it was for all

intents and purposes agreed and accepted between the

parties that the rent settled for the demised premises was

payable according to the English Calendar month. That

incidentally explains the reason why no issue was framed by

the Trial Court as regards the month of tenancy. Issue no.6

only related to the validity of the notice of termination,

which had to be answered on the admitted premise that the
 11

tenancy was on a month to month basis and the rent of

Rs.500/- p.m. was payable according to the English

Calendar month.

11. The Trial Court rightly examined the question of legality

of the service of the notice on the basis of the available

material and the pleadings on the subject and came to the

conclusion that the notice in question received by Smt. Malti

Roy wife of defendant-tenant was duly served upon the

defendant on the 15th January, 2000. The Trial Court further

held that the ejectment notice having been served on 15th

January, 2000, the defendant had one month's clear time till

the end of February, 2000 to vacate the premises and to

deliver the possession thereof to the plaintiff. Issue no.6

was accordingly answered in favour of the plaintiff and

against the defendant-respondent. The First Appellate Court,

however, took a contrary view. It held that the notice of

termination of tenancy was not valid as it did not end with

the month of tenancy of the defendant. Relying upon the

stipulation contained in the tenancy agreement the First
 12

Appellate Court held that the tenancy in the instant case had

started on the 11th day of the English Calendar month and

that in order to be legally valid the notice of termination

ought to have demanded delivery of possession by the 11th

and not the 29th February, 2000. The notice was accordingly

held to be invalid and the suit filed by the appellant liable to

be dismissed. In taking that view Appellate Court failed to

appreciate that even when the unregistered agreement of

tenancy had been executed on 11th of September, 1993 the

same did not mean that the month of tenancy would

commence from the 11th of every succeeding month, over

the period for which the same was created. The First

Appellate Court also failed to appreciate that even when the

rent note/agreement of tenancy was executed on a date

other than the first of English or any other calendar month

the parties were always free to agree that the month of

tenancy would commence from any other date including the

1st day of the succeeding month. That there was a specific

averment made in the plaint to the effect that the rent for
 13

the premises was payable monthly according to the English

Calendar was also overlooked by the First Appellate Court.

That the said averment had not been disputed by the tenant

was also not noticed by the First Appellate Court and even

by the High Court. These facts were important and held the

key to the determination of the question whether the notice

had validly terminated the tenancy. The High Court had in

the first order passed by it correctly held the notice of

termination of tenancy to be legally valid. After the matter

was remanded back to it to consider the effect of non-

registration of the rent note/agreement of tenancy it has

taken a view that has not appealed to us. It is true that the

non-registration of the rent note does not debar the use of a

document that is compulsorily registerable for collateral

purposes but that aspect would in the instant case pale into

insignificance keeping in view the state of pleadings on the

question of month of tenancy and the legal implications

thereof.
 14

12. In the result this appeal succeeds and is hereby

allowed. The impugned order passed by the High Court of

Calcutta dated 16th September, 2009 and that passed by the

First Appellate Court dated 30th November, 2005 are hereby

set aside. Consequently, the judgment and decree passed

by the Trial Court shall stand restored. Parties shall bear

their own costs.

13. We further direct that the respondent shall have time

till 30th November, 2011 to vacate the premises in question

and handover the possession of the same to the appellant

subject to the respondent filing an undertaking on usual

terms in this Court within two months from today.

 .................................J.
 (MARKANDEY KATJU) .................................J.
New Delhi (T.S. THAKUR)
November 26, 2010

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