//
archives

personal requirement

This tag is associated with 1 post

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

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 … Continue reading

Blog Stats

  • 2,897,108 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,907 other followers
Follow advocatemmmohan on WordPress.com