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1962 Supreme(Cal) 116
HIGH COURT OF CALCUTTA
H. K. BOSE, DEBABRATA MOOKHERJEE
RAM LAKSHMAN SINGH - Appellant
Versus
GIRINDRA MOHAN HAZRA - Respondent
Supreme Court Appeal 12 Of 1962
Decided On : MAY 11, 1962
AMIYALAL CHATTERJI, Chittatosh Mookerji, NIRMAL CHANDRA CHAKRABARTY, SANAT KUMAR MUKHERJI
The question of whether an order under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956, which had been confirmed in revision, could be challenged in an appeal from the final ejectment decree under the provisions of Section 105 of the Code of Civil Procedure was a substantial question that could be passed on to the Supreme Court for consideration.
Headnote:
PREMISES TENANCY ACT - SECTION 17 (3) - CONSTRUCTION - RES JUDICATA - SECTION 105 CPC - CONSTRUCTION OF JUDGMENT - SUBSTANTIAL QUESTION OF LAW - VALUATION TEST - ARTICLE 133 (I) (B) OF THE CONSTITUTION.
Fact of the Case:
The petitioner, a tenant, challenged the order of the trial court striking out his defense in an ejectment suit under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956. The petitioner argued that the order was barred by res judicata as it had been confirmed in revision by the High Court. The petitioner also challenged the construction of the judgment of the trial court in a previous suit, which had held that the petitioner was a monthly tenant. Additionally, the petitioner contended that the structure on the land did not constitute a "premises" within the meaning of the Act.
Finding of the Court:
The court held that the question of whether an order under Section 17 (3) of the West Bengal Act XII of 1956, which had been confirmed in revision, could be challenged in an appeal from the final ejectment decree under the provisions of Section 105 of the Code of Civil Procedure was a substantial question that could be passed on to the Supreme Court for consideration. However, the court held that the question of construction of the trial court's judgment in the previous suit was not a substantial question of law. The court also held that the question of whether the structure on the land constituted a "premises" within the meaning of the Act was an arguable question that could be passed on to the Supreme Court for consideration.
Issues: 1. Whether an order under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956, which had been confirmed in revision, could be challenged in an appeal from the final ejectment decree under the provisions of Section 105 of the Code of Civil Procedure? 2. Whether the construction of the trial court's judgment in a previous suit, which had held that the petitioner was a monthly tenant, was a substantial question of law? 3. Whether the structure on the land constituted a "premises" within the meaning of the Act?
Ratio Decidendi: 1. The court held that the question of whether an order under Section 17 (3) of the West Bengal Act XII of 1956, which had been confirmed in revision, could be challenged in an appeal from the final ejectment decree under the provisions of Section 105 of the Code of Civil Procedure was a substantial question that could be passed on to the Supreme Court for consideration. The court reasoned that several decisions had held that an interlocutory order which had not been appealed from could be challenged in an appeal from the final decree. 2. The court held that the question of construction of the trial court's judgment in the previous suit was not a substantial question of law. The court reasoned that the question of construction of instruments of title was a substantial question of law, but the question of status of a tenant was a question of fact. 3. The court held that the question of whether the structure on the land constituted a "premises" within the meaning of the Act was an arguable question that could be passed on to the Supreme Court for consideration. The court reasoned that the extent and nature of the construction in individual cases determined whether it was a "premises" and that the facts of this case raised an arguable question.
Final Decision: The court granted the petitioner a certificate under Article 133 (i) (b) of the Constitution, allowing the petitioner to appeal to the Supreme Court. The court also granted a limited stay of the ejectment order for a period of three months, subject to further orders of the Supreme Court.
( 1 ) THIS is an application for a certificate in respect of a decision of a Division Bench of this Court (in A. F. Order D. No. 301 of 1959), D/- 21-11-1961, affirming the decree of the trial Court dated the 22nd April, 1959.
( 2 ) ON 15th April, 1954, the respondent Girindra Mohan Hazra granted settlement of plots Nos. 23, 24 and 25 of the Calcutta Improvement Trust Scheme No. ZL. IV at Gray Street now known as P. 23. B. K. Paul Avenue measuring approximately 14 cottahs 2 chittaks 35 sq. ft of vacant land to the petitioner at rent of Es. 140,'-per month for a period of ten months, for the purpose of starting a timber business and the petitioner was given a right to build temporary structures thereon. For this settlement the petitioner executed a registered Kabuliat on 12th April, 1944. It is alleged that after the expiry of the said settlement the respondent assented to the petitioner continuing in possession, and accepted rent from. him and the petitioner held over as tenant on the same terms and conditions under which the lease was originally granted. In 1954 the respondent filed a suit against the petitioner and others in the Original Side of this Court for possession of the' said land at p. 23, B. K. Paul Avenue. The case made in the plaint was that the respondent had let out to the petitioner vacant land for ten months at a monthly rent of Rs. 140/-, and after the expiry of the lease he had let out the disputed land on a daily rent basis, and in August 1948 the petitioner vacated the premises. In early 1949 the respondent started construction of 16 or 17 rooms but in April 1949, owing to his illness he left for Memari where he lay ill for one and a half years. In December 1950 he found the land in the wrongful occupation of the petitioner and others. The petitioner's defence to the said suit was that since 1944 he had been and still continued to be a monthly tenant under the plaintiff and he had lawfully constructed certain structures thereon for residential, manufacturing and business purposes. In 1949 he wanted to give facilities to the plaintiff to make the construction in the land but after constructing five rooms up to the lintel level the plaintiff gave up construction. The case of the petitioner further is that he took advantage of the pillars and walls and himself completed the structures by spending large sums of money.
( 3 ) CERTAIN issues were raised before Datta J. before whom the suit came up for hearing and one of such issues was, -- "is the defendant No. a monthly tenant under the plaintiff as alleged in paragraph 3 of the written statement?" On 15th July, 1957, Datta, J. dismissed the suit holding that the petitioner had been holding over, after the expiry of the lease, and the plaintiff had assented to the continuance of such possession and there was no agreement to the contrary as contemplated by Section 116 of the Transfer of Property Act. He held that the petitioner was a monthly tenant under the plaintiff, as alleged in paragraph 3 of the written statement.
( 4 ) ON 16th December, 1957, the respondent Girindra Mohan Hazra filed a suit being title suit No. 284 of 1957 in the City Civil Court at Calcutta against the petitioner for ejectment from the said premises No. P. 23, B. K. Paul Avenue and for mesne profits. In that plaint it was alleged that the defendant was in arrears of rent and was thus a defaulter and it was further alleged that ejectment notice had been served on the petitioner. The petitioner in his written statement denied that he was a monthly tenant in respect of any "premises" within the meaning of the West Bengal Act XII of 1956. The petitioner also denied the service and validity of the notice to quit. On 18th February, 1958, the respondent filed a petition purporting to be under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956, for striking off the defence of the petitioner against delivery of possession on the ground that the petitioner had failed to dep
