
Image via Wikipedia
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
Like this:
Like Loading...
Related
Discussion
Trackbacks/Pingbacks
Pingback: 1. Whether the 2nd defendant is able to prove that Ex.B-2 dated 7-2-1995 was duly executed by late Bhavanamma in a sound and disposing state of mind and that Ex.B-2 was not surrounded by any suspicious circumstances? 2. Whether plaintiff is able to prove - September 29, 2011
Pingback: 1. Whether the 2nd defendant is able to prove that Ex.B-2 dated 7-2-1995 was duly executed by late Bhavanamma in a sound and disposing state of mind and that Ex.B-2 was not surrounded by any suspicious circumstances? 2. Whether plaintiff is able to prove - September 29, 2011
Pingback: As second respondent had looked after their mother and their property, the appellants agreed for her continuing as licencee for some time. She did not however vacate=Normally this Court will not, in exercise of jurisdiction under Article 136 of the Consti - September 30, 2011