Back
HIGH COURT OF CALCUTTA
Das Gupta
SAILABALA DASSEE - Appellant
Versus
H. A. TAPPASSIER - Respondent
Civil Suit 1191 Of 1946
Decided On : AUGUST 1, 1951
The plaintiff, as executrix of her husband's estate, brought suit to recover possession of premises leased to the defendant, mesne profits, and interest. The defendant had informed the plaintiff that the leases would expire on September 30, 1942, and gave notice that the tenancies would be maintained at the existing rentals during the war and until after six months after complete cessation of hostilities. The plaintiff served a notice of ejectment on the defendant, who responded by informing the plaintiff that the government had communicated with the Director of the Ordnance Factories regarding the requisitioning of the premises under the Defence of India Rules. The plaintiff instituted a suit for recovery of possession, which was served on the defendant on August 28, 1942. On November 2, 1942, the defendant's solicitors wrote to the plaintiff contending that the notice to quit was bad in law and that the defendant was not holding over on monthly rent but under a lease. The defendant deposited rent for June, July, August, and September 1942, less rebate, with the Registrar of the High Court. On December 2, 1942, the plaintiff instituted a suit for recovery of possession of the premises. On January 28, 1943, the plaintiff was served with an order of requisitioning the premises from February 2, 1943. The defendant claimed that he was also served with a similar notice of requisition. The government took possession of the premises and paid rent to the plaintiff at the rate of Rs. 160/- per month, inclusive of taxes. The defendant did not pay any rent to the plaintiff after February 1, 1943. On February 17, 1944, the defendant's solicitors wrote to the plaintiff's solicitors stating that the premises had been requisitioned by the government and that the only question which remained outstanding in the suit was the question of costs. The suit was dismissed by consent of parties. The plaintiff filed the present suit on July 2, 1946, for the reliefs mentioned.
Fact of the Case:
The plaintiff, as executrix of her husband's estate, brought suit to recover possession of premises leased to the defendant, mesne profits, and interest. The defendant had informed the plaintiff that the leases would expire on September 30, 1942, and gave notice that the tenancies would be maintained at the existing rentals during the war and until after six months after complete cessation of hostilities. The plaintiff served a notice of ejectment on the defendant, who responded by informing the plaintiff that the government had communicated with the Director of the Ordnance Factories regarding the requisitioning of the premises under the Defence of India Rules. The plaintiff instituted a suit for recovery of possession, which was served on the defendant on August 28, 1942. On November 2, 1942, the defendant's solicitors wrote to the plaintiff contending that the notice to quit was bad in law and that the defendant was not holding over on monthly rent but under a lease. The defendant deposited rent for June, July, August, and September 1942, less rebate, with the Registrar of the High Court. On December 2, 1942, the plaintiff instituted a suit for recovery of possession of the premises. On January 28, 1943, the plaintiff was served with an order of requisitioning the premises from February 2, 1943. The defendant claimed that he was also served with a similar notice of requisition. The government took possession of the premises and paid rent to the plaintiff at the rate of Rs. 160/- per month, inclusive of taxes. The defendant did not pay any rent to the plaintiff after February 1, 1943. On February 17, 1944, the defendant's solicitors wrote to the plaintiff's solicitors stating that the premises had been requisitioned by the government and that the only question which remained outstanding in the suit was the question of costs. The suit was dismissed by consent of parties. The plaintiff filed the present suit on July 2, 1946, for the reliefs mentioned.
Finding of the Court:
The court found that the notice to quit served on the defendant was sufficient and had been served in time. The court also found that the defendant did not pay any rent to the plaintiff after February 1, 1943. The court further found that the defendant's possession of the premises after the period of requisition was not that of a tenant but was in a capacity inconsistent therewith, that is to say, under the Government. The court held that the plaintiff was entitled to recover possession of the premises from the defendant.
Issues: (1) From whom the Land Acquisition Collector took over possession of the premises in suit? (2) Was the notice to quit dated 29th October 1942 served as alleged in the plaint? Was it a valid and sufficient notice to terminate the tenancy of the defendant? (3) Did the defendant pay and the plaintiff accept the sum of Rs. 1301/15/3 as rent upto 1st February, 1943 and for costs of the suit No. 1566 of 1942? If so, was the said notice to quit waived thereby? (4) Did the defendant fail to pay rent to the plaintiff after 1st February, 1943? (5) Were the rights of the defendant determined and/or surrendered and/or extinguished by reason of what is alleged in paragraphs 15 and 16 of the plaint? (6) Is the suit barred by reason of the dismissal of suit No. 1566 of 1942 by consent of parties? (7) Is the suit maintainable in the absence of permission by the Rent Controller to the plaintiff to institute this suit under para 9 (b) of the Calcutta House Rent Control Order 1943? (8) Can a decree for ejectment be passed having regard to the special rent laws?
Ratio Decidendi: The court held that the plaintiff was entitled to recover possession of the premises from the defendant because the defendant's possession of the premises after the period of requisition was not that of a tenant but was in a capacity inconsistent therewith, that is to say, under the Government.
Final Decision: Decree for possession of the premises, mesne profits, and costs.
( 1 ) THIS suit is instituted by the plaintiff Sm. Sailabala Dassee as executrix to the estate of Kali Pado Barick deceased for recovery of possession of the premises 122/3a and 122/4a Upper Circular Road, Calcutta, mense profits from the 21st December, 1945, until delivery of possession at Rs. 7/- per day and interest and costs.
( 2 ) I shall have to state the facts of the case in some details. There is not much dispute as to those facts, but the real dispute between the parties is as to the effect of those facts on their legal position. By an agreement dated 23rd September, 1940, the plaintiff let out to the defendant premises No. 122/3a, Upper Circular Road, for 12 months at a rent of Rs. 97/-per month. The said agreement inter alia provided that if the rent is paid on the first day of each succeeding month then the defendant would be entitled to get a rebate at the rate of Rs. 7/- per month. On the 3lst March, 1942, there was another agreement under which the plaintiff let out to the defendant the premises No. 122/4a, Upper Circular Road, Calcutta, for six months at a monthly rent of Rs. 60/- per month. There was also a clause in the said agreement for grant of rebate at the rate of Rs. 10 per month if the rent was paid on the first day of each succeeding month. Both the said tenancies, under the agreements dated 23rd September 1941 and 31st March 1942, respectively were terminable by either party giving one month's notice. By his letter dated the 26th August, 1942, the defendant informed the plaintiff that both the leases would expire on the 30th September, 1942, and gave him notice that the said tenancies would be maintained at the existing rentals during the war and until after six months after complete cessation of hostilities in the West, the East or anywhere else. The defendant also informed the plaintiff by his said letter that should the plaintiff fail to confirm the above he would apply to the Government department concerned so that a requisition order may be served on the plaintiff to enable the defendant not only in maintaining tenancy of the two premises but for further extension contemplated. The plaintiff through her pleader caused a notice of ejectment dated 31st August, 1942, to be served on the defendant calling upon him to quit and vacate the premises in' question on the expiry of the month of September 1942. There were two such notices, one for each of the said two premises. On the 28th September, 1942, Messrs. Leslie and Hinds acting on behalf of the defendant wrote to the plaintiff informing her that their client, the defendant, had applied to the Government to requisition the above premises and Messrs. Leslie and Hinds on the same date had forwarded to the Assistant Secretary to the Government of Bengal, Revenue Department, Land Asquisition, their client's cheque for Rs. 140/- in payment of rent of the premises for the current month. With reference to the notices of ejectment Messrs. Leslie and Hinds, on behalf of the defendant wrote to the plaintiff on the 7th October, 1942, inter alia stating that they have heard from the Assistant Secretary to the Government of Bengal, that the Government had communicated with the Director of the Ordnance Factories regarding the requisitioning of the above premises under the Defence of India Rules, and further action will be taken by the Government after the receipt of reply from the Director of Ordnance Factories and in the circumstances the notices to quit served on their client are not valid or binding on him. Thereafter Messrs. S. K. Ganguly and Co. , solicitors of the plaintiff served two notices both dated 29th October, 1942, on the defendant calling upon him to quit and vacate the two premises No. 122/3a and 122/4a, Upper Circular Road, respectively on the expiry of the last day of the month of November 1942 or the last day of the next month of tenancy. There is some dispute between the parties as to the date when this notice, to quit was act
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
