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Calcutta High Court
S. K. BHATTACHARYYA AND A. K. JANAH, JJ.
Universal Trading Co. - Appellant
Versus
Prafulla Kumar Sarkar - Respondents
First Appeals Nos.1101 and 1102 of 1969
Decided On : 28 July 1976
PREMISES TENANCY ACT - TENANT - BHARATIA - OWNERSHIP - EVICTION - REASONABLE REQUIREMENT - FOREIGN EXCHANGE REGULATION ACT - CONTRACT ACT - ADDITIONAL EVIDENCE - JURISDICTION OF APPELLATE COURT: 1. A Bharatia under a Thika Tenant is not a tenant within the meaning of the Premises Tenancy Act. 2. A Thika Tenant, not being an owner within the meaning of Section 13 (1) (ff) of the Premises Tenancy Act, cannot file a suit for eviction under the said Act. 3. A suit for recovery of possession is not under the Premises Tenancy Act, but it is under the general law, after determination of the tenancy by a notice to quit. 4. The Premises Tenancy Act puts certain restrictions on the landlords right to recover possession from the tenant unless certain conditions as enumerated in Section 13 (1) of the Premises Tenancy Act are fulfilled. 5. Under the general law there is no such bar or restriction upon the landlords right to evict a monthly tenant. 6. The landlord is not required to satisfy the court as to whether he requires the subject-matter of the tenancy for his own use and occupation or a tenant is a defaulter or that any of the conditions mentioned in Section 13 (1) of the Premises Tenancy Act exists in order to get a decree for eviction against the tenant. 7. The only thing which the landlord is required to prove in such a case is that the tenancy has been determined by service of a valid notice to quit. 8. The appellate court has no jurisdiction to receive additional evidence in support of the defence of the defendant, when the defendant could easily obtain inspection of the documents relied upon by the plaintiffs in support of their title and make necessary enquiry regarding such particulars as were necessary according to him at the appropriate stage in the trial court.
Fact of the Case:
The plaintiff-respondents filed two suits for ejectment against the appellant for the latters eviction from two tenancies at No. 72, Baithakhana Road. The plaintiffs alleged that the defendant held one residential tenancy in respect of 3 rooms at 72, Baithakhana Road under the plaintiffs at a rental of Rs. 21/- per month according to Bengali calendar. The defendant appellant also held another tenancy under the plaintiff-respondents at the aforesaid premises No. 72, Baithakhana Road in respect of a shop room at a rental of Rs. 32/- per month according to Bengali calendar. The defendant denied the relationship of landlord and tenant between the parties and contended that the plaintiffs were not the sole owners of the structure in which the disputed tenancies were situate. The defendant denied the service and sufficiency of the notice to quit. Reasonable requirement on the part of the plaintiffs was also denied in the written statement.
Finding of the Court:
The court held that the defendant is not a tenant within the meaning of the Premises Tenancy Act. That being so, it is immaterial whether the plaintiffs satisfied the conditions mentioned in clause (ff) of sub-section (1) of Section 13 of the Premises Tenancy Act. In view of what has been discussed above it follows that there is no bar to the suits being decreed.
Issues: 1. Whether a Bharatia under a Thika Tenant is a tenant within the meaning of the Premises Tenancy Act? 2. Whether a Thika Tenant, not being an owner within the meaning of Section 13 (1) (ff) of the Premises Tenancy Act, can file a suit for eviction under the said Act? 3. Whether a suit for recovery of possession is under the Premises Tenancy Act, or it is under the general law, after determination of the tenancy by a notice to quit? 4. Whether the Premises Tenancy Act puts certain restrictions on the landlords right to recover possession from the tenant unless certain conditions as enumerated in Section 13 (1) of the Premises Tenancy Act are fulfilled? 5. Whether under the general law there is any such bar or restriction upon the landlords right to evict a monthly tenant? 6. Whether the landlord is required to satisfy the court as to whether he requires the subject-matter of the tenancy for his own use and occupation or a tenant is a defaulter or that any of the conditions mentioned in Section 13 (1) of the Premises Tenancy Act exists in order to get a decree for eviction against the tenant? 7. Whether the only thing which the landlord is required to prove in such a case is that the tenancy has been determined by service of a valid notice to quit? 8. Whether the appellate court has jurisdiction to receive additional evidence in support of the defence of the defendant, when the defendant could easily obtain inspection of the documents relied upon by the plaintiffs in support of their title and make necessary enquiry regarding such particulars as were necessary according to him at the appropriate stage in the trial court?
Ratio Decidendi: 1. A Bharatia is not a tenant within the meaning of the Premises Tenancy Act vis-a-vis the Thika Tenancy or his transferee. 2. A Thika Tenant, not being an owner within the meaning of Section 13 (1) (ff) of the Premises Tenancy Act, cannot file a suit for eviction under the said Act. 3. A suit for recovery of possession is not under the Premises Tenancy Act, but it is under the general law, after determination of the tenancy by a notice to quit. 4. The Premises Tenancy Act puts certain restrictions on the landlords right to recover possession from the tenant unless certain conditions as enumerated in Section 13 (1) of the Premises Tenancy Act are fulfilled. 5. Under the general law there is no such bar or restriction upon the landlords right to evict a monthly tenant. 6. The landlord is not required to satisfy the court as to whether he requires the subject-matter of the tenancy for his own use and occupation or a tenant is a defaulter or that any of the conditions mentioned in Section 13 (1) of the Premises Tenancy Act exists in order to get a decree for eviction against the tenant. 7. The only thing which the landlord is required to prove in such a case is that the tenancy has been determined by service of a valid notice to quit. 8. The appellate court has no jurisdiction to receive additional evidence in support of the defence of the defendant, when the defendant could easily obtain inspection of the documents relied upon by the plaintiffs in support of their title and make necessary enquiry regarding such particulars as were necessary according to him at the appropriate stage in the trial court.
Final Decision: The appeals were dismissed and the judgment and decrees of the trial court were affirmed.
JANAH, J.:- These two appeals arise out of two suits for ejectment which were instituted by the respondents against the appellant for the latters eviction from two tenancies at No. 72, Baithakhana Road. The plaintiff-respondents alleged that the defendant-appellant held one residential tenancy in respect of 3 rooms at 72, Baithakhana Road under the plaintiffs at a rental of Rs. 21/- per month according to Bengali calendar. The defendant appellant also held another tenancy under the plaintiff-respondents at the aforesaid premises No. 72, Baithakhana Road in respect of a shop room at a rental of Rs. 32/- per month according to Bengali calendar. Ejectment suit No. 44 out of which F. A. 1101 arises was instituted in respect of the residential tenancy and Ejectment Suit No. 45 out of which F. A. 1102 arises was instituted in respect of the shop room. It was alleged that the plaintiffs had purchased the structure at 72, Baithakhane Road in which the disputed tenancies were situate, from the heirs of the original owner, late Gendu Khan, who was a thika tenant in respect of the land on which the said structure stood, by a kobala dated August 10, 1964. It was further alleged that after their purchase the plaintiffs informed the defendant about their purchase but the defendant did not pay rent to the plaintiffs, and the defendant was in default since Sravan, 1371 B.S. The plaintiffs further alleged that the shop room was required by them for their own occupation for business purpose and that the premises in the other suit was required by the plaintiff No.2 for his own use and occupation and for the use and occupation of the members of his family as their residence. The defendant denied the relationship of landlord and tenant between the parties and contended that the plaintiffs were not the sole owners of the structure in which the disputed tenancies were situate. The defendant denied the service and sufficiency of the notice to quit. Reasonable requirement on the part of the plaintiffs was also denied in the written statement.
2. As common questions of law and facts arose in both the suits the two suits were tried together. The learned Judge in the trial court accepted the plaintiffs case and decreed both the suits. Against the trial courts decrees the present appeals have been filed by the tenant defendant. The suit was filed on January 4, 1967 i.e. within 3 years from the date of plaintiffs purchase. Section 13 of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the Premises Tenancy Act) was amended by the West Bengal Premises Tenancy (Second Amendment) Act, 1969 (hereinafter referred to as the Second Amendment Act) which came into force with retrospective effect on 14th November, 1969, after the suits were disposed of by the trial court. In view of the decision in the case of B. Banerjee v. Anita Pan, AIR 1975 SC 1146 the plaintiffs-respondents filed an application for amendment of the plaint praying for incorporating an averment in the plaint that the plaintiffs were not possessed of any other reasonably suitable accommodation. The said prayer having been allowed by this court the defendant-appellant filed an additional written statement denying the plaintiffs allegations whereupon an additional issue was framed and thereafter the parties adduced evidence in support of their respective cases in this Court.
3. Mr. Nirmal Chandra Chakravarty, learned Advocate, appearing on behalf of the appellant has contended in the first place, that the plaintiffs are the purchasers of the interest of a thika tenant and hence they cannot file a suit under the Premises Tenancy Act for eviction of the defendant who was a Bharatia under the plaintiffs predecessors. He drew our attention to the deposition of plaintiff No. 2 where he has admitted that the interest of the plaintiffs is that of a thika tenant. He also referred to Exhibit 7 series which show payment of ground rent by the plaintiffs to the superior landlord. Mr.
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