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High Court Of Calcutta
R. BHATTACHARYYA
NIRMALENDU BASU - Appellant
Versus
NILIMA CHATTERJEE - Respondent
Secondappeal 1609 Of 1966
Decided On : 09/02/1975
EVICTION SUIT - SUSPENSION OF RENT - DISPOSSESSION OF TENANT - MALA FIDE CONDUCT OF LANDLORD - RENT ARREARS - DEFAULT - VALIDITY OF NOTICE TO QUIT - PARTIAL EVICTION - JOINDER OF PARTIES - WEST BENGAL PREMISES TENANCY ACT, 1956 - TRANSFER OF PROPERTY ACT, 1882 - CALCUTTA MUNICIPAL ACT, 1923 - Landlord's mala fide conduct leading to tenant's dispossession from a substantial portion of the leased premises entitles the tenant to suspend rent payment until possession is restored. Landlord's failure to repair dangerous premises despite municipal notices and subsequent sale of the property without restoring possession to the tenant amounts to mala fide dispossession. Tenant's non-payment of rent during dispossession period does not constitute default. Notice to quit is invalid if it fails to describe the entire leased premises. Suit for eviction based on partial eviction and non-joinder of necessary parties is liable to be dismissed.
Fact of the Case:
Plaintiff purchased a property from her vendor, who was the landlord of the defendant-tenant. The defendant had been paying rent for the entire premises at a monthly rate. After the purchase, the plaintiff served a notice to quit on the defendant, alleging default in rent payment from May 1961 onwards. The defendant resisted the eviction, claiming that the notice was invalid as it did not describe the entire premises and that he was entitled to suspend rent payment due to dispossession from the first floor of the premises. The defendant alleged that the previous landlord had coerced him to vacate the first floor under threat of criminal prosecution and with the help of the municipality, and that the plaintiff's vendor had failed to repair the premises despite receiving notices from the municipality.
Finding of the Court:
The trial court dismissed the plaintiff's suit, finding that the defendant was not a defaulter and that the suit was bad for partial eviction. On appeal, the appellate court reversed the trial court's decision, holding that the defendant was a defaulter and that the suit was not bad for partial eviction. The appellate court also found that the plaintiff was entitled to the benefit of rent arrears incurred during the time of her vendor.
Issues: 1. Whether the defendant was entitled to suspend rent payment due to dispossession from a portion of the leased premises. 2. Whether the notice to quit was valid and sufficient. 3. Whether the suit was bad for partial eviction and non-joinder of necessary parties.
Ratio Decidendi: 1. Suspension of Rent: - The court held that the defendant was entitled to suspend rent payment from May 1961 onwards due to his dispossession from the first floor of the premises. The court found that the previous landlord had mala fidely dispossessed the defendant by coercing him to vacate the premises under threat of criminal prosecution and with the help of the municipality. The court also found that the plaintiff's vendor had failed to repair the premises despite receiving notices from the municipality and that the plaintiff had purchased the property with knowledge of the defendant's dispossession. The court relied on the principles of natural justice, equity, and good conscience, as well as the provisions of Section 108 of the Transfer of Property Act, 1882, to support its decision. - The court distinguished the case from previous decisions where the tenant had not been given possession of a portion of the leased premises at the outset of the lease, holding that the doctrine of suspension of rent applies to cases where the landlord dispossesses the tenant from a portion of the leased property during the tenancy. - The court also rejected the argument that the defendant should have filed an application under Section 17 (1) and (2) of the West Bengal Premises Tenancy Act, 1956, holding that such an application was not necessary in the circumstances of the case. 2. Validity of Notice to Quit: - The court held that the notice to quit was invalid as it failed to describe the entire leased premises. The court relied on the provisions of Section 106 of the Transfer of Property Act, 1882, which requires a notice to quit to specify the premises to be vacated. 3. Partial Eviction and Non-Joinder of Parties: - The court held that the suit was bad for partial eviction as the plaintiff had failed to include the entire leased premises in the suit. The court also held that the suit was liable to be dismissed for non-joinder of necessary parties, as the previous landlord was a necessary party to the suit.
Final Decision: The appeal was allowed, and the judgment and decree of the appellate court were set aside. The dismissal of the suit by the trial court was affirmed.
( 1 ) THIS appeal has been directed against the judgment and the decree passed by an Additional District Judge, Howrah in Tide Appeal No. 495 of 1965 setting aside the dismissal of the original suit by a Munsif at Howrah in Title Suit No. 61 of 1963. The appellants are the successors-in -interest of the original defendant duly substituted during the appellate stage.
( 2 ) THE respondent before this Court Nilima Chatterjee started the original suit for eviction and for mesne profits again st the defendant Nandial Bose, a tenant of hers in respect of the suit premises. The plaintiff purchased the suit property from her vendor under whom Nandalal Bose was a tenant in respect of the suit properties at a monthly rental of Rs. 21/- payable according to English Calendar month. During the time of the plaintiff's vendor, the defendant became a defaulter in payment of rent from the month of May, 1961 onwards. After purchase in December, 1962, the plaintiff served a notice upon the defendant to quit on the expiry of the month of February, 1963. The ground of eviction was the default in payment of rent on the part of the defendant-tenant from May, 1961 till the end of February, 1963. The defendant appeared and filed a written statement denying all material allegations. In particular, the defence was that the notice to quit was invalid and insufficient as the entire premises under the tenancy was not described in the notice. It has also been pleaded that as the defendant was dispossessed from the first floor of the premises under threat of criminal prosecution and coercion by the vendor of the plaintiff with the help of the Howrah Municipality, the landlady is not at all entitled to any rent unless the defendant is put into possession of the major portion of the suit premises from which the tenant has been dispossessed. The defendant has characterised the dispossession of the tenant from the portion of the suit premises as a mala fide action. According to the defendant, the suit is liable to be dismissed.
( 3 ) THE learned trial court on con-sideration of the evidence found that the defendant had to vacate the first floor rooms of the premises under the tenancy as the said room became ruinous and precarious and were in urgent need of repair. It has also been found by the learned Munsif that the rooms on the first floor have not yet been repaired and restored to the defendant. The learned trial court has further found that the arrears of rent during the regime of the plaintiff's vender cannot be made use of by the plaintiff. The findings of the trial court are that the defendant was not a defaulter and that the suit is bad for partial eviction because the entire premises under tenancy has not been included in the suit. At the dismissal of the suit by the trial court, an appeal was taken by the plaintiff which was ultimately disposed of by the Additional District Judge, Howrah. According to the first appellate court below, the evidence on record has proved that the entire tenancy has been included in the suit and that the suit was not bad for partial eviction. On the question of default, the learned Additional District Judge on consideration of several decisions has come to the finding that the plaintiff will be entitled to get the benefit of default made by the tenant in respect of payment of rents during the time of her vendor, the previous landlady of the defendant. On the question of dispossession of the tenant by the previous landlady, the learned Judge has come to the conclusion that there is evidence on record that the first floor rooms required repairs and that it has been established that the respondent does not possess those first floor rooms. According to the learned Judge below, when the tenant became unable to possess a portion of the premises under tenancy, as the same became unfit for use for want of repairs, he is not entitled to suspension or abatement of rent. On the above findings, the court below fo
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