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High Court Of Calcutta
M. G. MUKHERJI, J. N. HORE
DEB KUMAR CHATTERJEE - Appellant
Versus
HELENA GHOSH - Respondent
R. F. A. 564 Of 1978
Decided On : 05/17/1990
PREMISES TENANCY ACT - SECTION 13 (1) (B) - SECTION 108 (M) OF THE TRANSFER OF PROPERTY ACT - DAMAGE TO THE PREMISES - NOTICE UNDER SECTION 114A OF THE TRANSFER OF PROPERTY ACT - WHETHER NECESSARY - INTERPRETATION OF SECTION 108 (M) OF THE TRANSFER OF PROPERTY ACT - LIABILITY OF THE TENANT FOR DAMAGE TO OTHER PARTS OF THE BUILDING OUTSIDE THE TENANCY.
Fact of the Case:
The tenant was accused of causing damage to the second and third floors of the building by operating a heavy printing machine in the ground floor, in violation of Clause (m) of Section 108 of the Transfer of Property Act. The landlord served a notice to quit and filed a suit for ejectment under Section 13 (1) (b) of the West Bengal Premises Tenancy Act.
Finding of the Court:
1. Notice under Section 114A of the Transfer of Property Act is not necessary in a suit for ejectment on the ground under Section 13 (1) (b) of the West Bengal Premises Tenancy Act for violation of the provisions of Clause (m) of Section 108 of the Transfer of Property Act. 2. The tenant did not violate the provisions of Clause (m) of Section 108 of the Transfer of Property Act by causing the alleged damage, as there was no evidence to show that the tenant installed heavier machines than specified or was negligent in operating them. 3. The alleged damage to the second and third floors was not caused by the operation of the printing machine in the ground floor, as the vibrations would have been the severest in the ground floor and not in the upper floors. 4. The obligation of the lessee under Clause (m) of Section 108 of the Transfer of Property Act is with respect to the property comprised in the lease and not to any other premises. 5. The tenant is not liable for eviction for violation of the provisions of Clause (m) of Section 108 of the Transfer of Property Act under Section 13 (1) (b) of the West Bengal Premises Tenancy Act, if the damage was caused to other parts of the building outside the tenancy.
Issues: 1. Whether notice under Section 114A of the Transfer of Property Act is necessary in a suit for ejectment on the ground under Section 13 (1) (b) of the West Bengal Premises Tenancy Act for violation of the provisions of Clause (m) of Section 108 of the Transfer of Property Act? 2. Whether the tenant violated the provisions of Clause (m) of Section 108 of the Transfer of Property Act by causing the alleged damage? 3. Whether the alleged damage to the second and third floors was caused by the operation of the printing machine in the ground floor? 4. Whether the obligation of the lessee under Clause (m) of Section 108 of the Transfer of Property Act is with respect to the property comprised in the lease and not to any other premises? 5. Whether the tenant is liable for eviction for violation of the provisions of Clause (m) of Section 108 of the Transfer of Property Act under Section 13 (1) (b) of the West Bengal Premises Tenancy Act, if the damage was caused to other parts of the building outside the tenancy?
Ratio Decidendi: 1. Section 114A of the Transfer of Property Act can be invoked only when there is an express condition, which provides that on the breach thereof the lessor may re-enter. The provision in Section 108 of the Transfer of Property Act is an implied term. 2. The tenant was at liberty to install printing machines and operate them which would necessarily cause some vibration. There was no evidence to show that the tenant installed heavier machines than specified or was negligent in operating them. 3. The alleged damage to the second and third floors was not caused by the operation of the printing machine in the ground floor, as the vibrations would have been the severest in the ground floor and not in the upper floors. 4. The obligation of the lessee under Clause (m) of Section 108 of the Transfer of Property Act is with respect to the property comprised in the lease and not to any other premises. 5. The tenant is not liable for eviction for violation of the provisions of Clause (m) of Section 108 of the Transfer of Property Act under Section 13 (1) (b) of the West Bengal Premises Tenancy Act, if the damage was caused to other parts of the building outside the tenancy.
Final Decision: The appeal was allowed and the judgment and decree of the court below were set aside. The plaintiff's suit was dismissed on contest with costs.
( 1 ) THIS is an appeal by the tenant/defendant against the judgment and decree for ejectment posed by the learned Judge, City Civil Court, 10th Bench, Calcutta in ejectment Suit No. 827 of 1974.
( 2 ) THE plaintiff/respondent brought the said suit against the appellants defendant for ejectment from the suit premises on the ground that the defendant caused damage to the suit building in violation of provisions of Clause (m) of section 108 of Transfer of Property Act, 1882 inter alia on the allegations that by an agreement in writing dated 1. 2. 56 entered into between the plaintiff no. 1 and the defendant, the defendant was inducted as a monthly tenant under the plaintiff in respect of one big hall on the ground Boor of premises no- 14, Ramanath Majumder Street, Calcutta-9 at a monthly rental of Rs. 55/- payable according to English calendar month. By another agreement in writing dated 15. 5. 71 entered into between the plaintiff and the defendant, the rent of the disputed premises was enhanced from Rs. 55/- to Rs. 70/- per month in consideration of the fact that the disputed room instead of being used as a godown was being used for running a printing press. The defendant was given permission to use the disputed premises as a printing Press without causing any damage, waste, material deterioration of the building in which the disputed tenancy was situated. The defendant, however, in violation of the aforesaid condition enlarged his printing business and installed a heavy and big printing machine on the disputed room and as a result the second and third floor were damaged by way of cracks of the walls and chunks of plaster fell from some places and in the later part of 1973, the portion of the corridor just in front of the stair case in the first floor of the suit building was damaged to such an extent that the entire cemented cover was broken into several pieces. The plaintiff immediately asked the defendant to repair the aforesaid damage and not to run the printing press but the defendant refused to comply. The defendant failed to keep the suit premises in such good condition as it was when the defendant was put into possession of the suit-room and acted contrary to the provisions of Clause (m) and as such is not entitled to protection against eviction The plaintiff determined the tenancy by a notice to quit on the expiry of the month of April, 1974 sent by a registered post. It was a combined notice Under Section 106 of the Transfer of Property Act and Section 13 (6) of the West Bengal Premises Tenancy Act.
( 3 ) THE defendant contested the suit by filing a written statement contending inter alia that the alleged notice was never served and it was not valid, legal and sufficient. It was contended that the building was not damaged due to operation of the printing press by the defendant in the disputed room. The defence of the defendant against delivery of possession was, however, struck out under section 17 (3) of the West Bengal Premises Tenancy Act and the defendant. was allowed to contest only on the point of notice.
( 4 ) UPON a consideration of the materials on record the learned Judge has held that the notice was duly served and that it was legal, valid and sufficient. He has further held that the tenant/defendant has caused damage to premises no. 14, Ramanath Majumder Street by operating heavy printing machine and acted contrary to the provisions of Clause (m) of Section 108 of the Transfer of Property Act and as such he is liable under Section 13 (1) (b) of the West Bengal Premises Tenancy Act. He has accordingly passed a decree for ejectment in favour of the plaintiff against the defendant Being aggrieved by the said judgment and decree for ejectment, the tenant/ defendant his preferred the present appeal.
( 5 ) MR. Roychowdhury, learned Advocate for the appellant has firstly contended that in the absence of notice under Section 114a of the Transfer of Property Act to remedy the alleged breach, th
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