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High Court Of Calcutta
SUDHANSHU SEKHAR GANGULY, S. P. RAJKHOWA
D.ENNIS - Appellant
Versus
CALCUTTA VYAPAR PRATISTHAN LTD - Respondent
A. F. O. D. 73 Of 1985
Decided On : 08/03/1990
WEST BENGAL PREMISES TENANCY ACT, 1956 - SECTION 13(1)(A) - TRANSFER OF PREMISES - SUBLETTING - INTERPRETATION.
Fact of the Case:
The appellant, a monthly tenant of a shop room, was sued for eviction by the landlords on the grounds of default in payment of rent, making additions and alterations to the shop room without consent, and subletting, assigning, and transferring the entire shop room without consent. The appellant contested the suit, denying all the contentions of the landlords.
Finding of the Court:
The learned Trial Judge decreed the suit, finding that the appellant had been a defaulter in the matter of payment of rent since August 1966, but was entitled to protection under S. 17 (4) of the Act as she had deposited all arrears of rent; that the appellant had not effected any addition or alteration in the disputed premises; that the appellant had left the suit premises long before the filing of the suit after transferring the same to Mr. Ardeshar who has been running the business in the suit premises since then; and that the relationship of landlord and tenant was not denied in the original written statement.
Issues: 1. Was the notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956, duly served on the appellant? 2. Was the disputed premises transferred by the appellant to Mr. Ardeshar? 3. To what relief, if any, is the appellant entitled?
Ratio Decidendi: 1. The Court held that the notice under S. 13(6) of the West Bengal Premises Tenancy Act was served on the appellant, as all the modes prescribed for service of notice in S. 106 of the Transfer of Property Act were available for service of a notice under S. 13(6) of the Act. The Court also held that the presumption of service as per Ss. 27 and 28 of the Central and State General Clauses Act, respectively, would be available to the service of the notice by post. Further, the Court held that service by affixation at the disputed premises was justifiable in view of the provisions of the second part of S. 106, as the appellant was not in India at the time and nobody said that she maintained a separate residential address in spite of her absence from the country. 2. The Court held that the disputed premises were transferred by the appellant to Mr. Ardeshar, as the appellant had gone away from the disputed premises installing a person, who was a complete stranger to her in the disputed premises permitting or authorizing him to carry on the business therefrom but not on her behalf. The Court also held that the requirements of Section 13(1)(a) were fully met with in this case, as there was evidence on record that Mr. Ardeshar had no relation with the appellant and that nor has he any business connecting with her. The burden, therefore, lay on the appellant to explain the circumstances under which instead of herself, Mr. Ardeshar was in possession of the disputed premises.
Final Decision: The Court dismissed the appeal and confirmed the judgment and decree passed by the learned trial Judge.
( 1 ) THIS is a defendant's appeal from the judgment and decree passed by the learned Chief Judge, City Civil Court, Calcutta in Ejectment Suit No. 524 of 1972.
( 2 ) THE suit was filed by M/s. Calcutta Vyapar Pratisthan Ltd. , the plaintiff-respondent No. 1 as the landlords for eviction of Miss D. Ennis, the monthly tenant from a shop room forming part of premises No. 3, Russell Street, Calcutta wherein she had been running a fashionable hairdressing saloon. The grounds were (1) default in payment of rent since August 1966; (2) making additions and alterations to the shop room without the consent of the respondent No. l and (3) subletting, assigning and transferring the entire shop room without consent of the respondent No. 1. The suit was filed after service of notice under S. 13 (6) of the West Bengal Premises Tenancy Act, 1956.
( 3 ) THE suit was contested by one Mr. J. S. Ardeshar, as the constituted attorney of the appellant. In the written statement filed by him he denied all the contentions of the respondent No. 1. Legality and service of the notice was also challenged.
( 4 ) AFTER the filing of the suit, Raigarh Jute Mills Ltd. , the plaintiff-respondent No. 2 became the owners of the premises No. 3, Russell Street including the disputed premises and the said company got itself added as a party to the suit, being plaintiff No. 2. The appellant filed an additional written statement whereby he challenged the title of the appellant No. 1 (respondent No. 1 ?) to the disputed premises. It was also added that Miss D. Ennis had left India due to bad health and that her business in the disputed premises was being looked after by her aforementioned constituted attorney under the supervision of her daughter.
( 5 ) ON a consideration of the materials produced before him by the two parties the learned Trial Judge came to the conclusion that (1) the notice under S. 13 (6) of the West Bengal Premises Tenancy Act which was legal, valid and sufficient in this case had been duly served upon the appellant; (2) that the appellant had been a defaulter in the matter of payment of rent since August 1966, but as she had deposited all arrears of rent under S. 17 (1) of the Act she was entitled to the protection under S. 17 (4) of the Act; (3) that the evidence on record failed to establish satisfactorily that the appellant had effected any addition or alteration in the disputed premises; (4) that the appellant had left the suit premises long before the filing of the suit after transferring the same to Mr. Ardeshar who has been running the business in the suit premises since then and (5) lastly that since in the original written statement the relationship of landlord and tenant was not denied, the denial of such relationship by the subsequent additional written statement could not be entertained. In view of the finding that the appellant had transferred the disputed premises to Mr. Ardeshar without the consent of the landlords, the learned Trial Judge decreed the suit. Hence, this appeal.
( 6 ) ONLY two points have been pressed before us from the side of the appellant. It is urged at the first instance that the notice under S. 13 (6) of the West Bengal Premises Tenancy Act, 1956 was not served upon the appellant and it is also urged that the materials on record do not establish that the disputed premises had been transferred by the appellant to Mr. Ardeshar as found by the Ld. Trial Judge. The following points may, therefore, be framed for disposing of this appeal:-1. Was the notice under Section 13 (6) of the West Bengal Premises Tenancy Act, 1956 duly served on the appellant? 2. Was the disputed premises transferred by the appellant to Mr. Ardeshar? 3. To what relief, if any, is the appellant entitled? point No. 1.
( 7 ) THE Notice in this case was sought to be served on the appellant in two ways. A letter containing the notice was sent to the appellant at the disputed premises under registered post with acknowled
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