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High Court Of Calcutta
P. K. BANERJI, B. N. MAITRA
TIDE WATER OIL COMPANY (INDIA) LTD. - Appellant
Versus
K.D.BANERJEE - Respondent
A. F. O. O. 6 Of 1980
Decided On : 12/15/1981
West Bengal Premises Tenancy Act, 1956 - Section 13(1)(k), 13(1)(ff), 27 - Notice to Quit - Reasonable Requirement - Undertaking to Vacate - Interpretation of Provisions.
Fact of the Case:
Plaintiff, the owner of a property, sued the defendant company, a tenant, for ejectment and damages, alleging that he had given a notice to quit due to reasonable requirement for his own use and occupation, and that the defendant had given an undertaking to vacate the premises.
Finding of the Court:
The trial court dismissed the suit, finding that the defendant did not give an undertaking to vacate the premises, that the plaintiff's case of reasonable requirement was false, and that the notice to quit was not properly served.
Issues: 1. Whether the defendant gave an undertaking to vacate the premises, as claimed by the plaintiff, under Section 13(1)(k) of the West Bengal Premises Tenancy Act, 1956. 2. Whether the plaintiff's case of reasonable requirement for his own use and occupation, under Section 13(1)(ff) of the Act, was established. 3. Whether the notice to quit was properly served on the defendant, and whether the presumption of proper service was rebutted.
Ratio Decidendi: 1. Section 13(1)(k) of the Act: The court held that no written undertaking was given by the defendant to vacate the premises within a specific timeframe, as claimed by the plaintiff. Therefore, the plaintiff could not succeed in his claim under this provision. 2. Section 13(1)(ff) of the Act: The court found that there was concurrent finding of fact by the courts below against the plaintiff's claim of reasonable requirement for his own use and occupation. The plaintiff's evidence regarding his physical condition and illness was not convincing, and the courts below rightly refused to place reliance on it. 3. Notice to Quit: The court referred to judicial precedents and held that the notice to quit was properly addressed, registered, and sent to the defendant. The presumption of proper service was not rebutted by the defendant. The fact that the notice was received by Messrs. Andrewyule and Co. Ltd., the former Treasurer and Secretary of the defendant company, did not invalidate the service, as there was no evidence to show that Andrewyule and Co. Ltd. had ceased to be the defendant's agent.
Final Decision: The appeal was allowed to the extent that the matter was remitted to the appellate court for reconsideration of the plaintiff's case under Section 13(1)(f) of the Act, which deals with the landlord's right to demolish and rebuild for business improvement or better returns. The appellate court was directed to consider whether the plaintiff's proposed construction could be carried out without evicting the defendant, and to pass necessary orders accordingly.
( 1 ) THE plaintiff has instituted the suit on the allegation that he is the owner of the property in question. The defendant, Messrs Tide Water Oil Company, was the tenant regarding the premises in question in the front portion of that building under him at a monthly rental of Rs. 650/-payable according to English calendar. Previously, he was posted in Bombay. At that time, one Mr. K. L. Gupta, defendant's officer, was transferred to Cal- cutta. The latter persuaded the plaintiff to let out the front portion of the ground floor of the house including the front lawn, the garden and the garage. He had been assured by Mr. Gupta that the demised portion would be vacated after he was transferred from Calcutta or on his retirement from service, whichever was earlier. That proposal was accepted. The plaintiff has retired from service and has been residing in Calcutta. He and his wife have been suffering from various ailments and it is extremely difficult for them to go upstairs. The only passage leading to that house is a very filthy and slippery one because the courtyard is used by the defendant's employees for cleansing utensils and storing garbage. The accommodation available to the plaintiff is not sufficient and reasonably suitable. He reasonably requires the disputed premises for his own use and occupation and for the occupation by the members of his family. He submitted a plan to the Corporation of Calcutta for building and rebuilding of the house for properly utilising the vacant space in front of the building for its economic user. The plan has been sanctioned. Unless the defendant is evicted, it is not possible for the plaintiff to make such building and rebuilding. That tenancy was duly determined by a notice to quit. The suit is for ejectment and for recovery of damages.
( 2 ) THE defendant-company has filed a written statement denying the plaintiff's allegations. It has been alleged, inter alia, that no such assurance had been given by Mr. K. L. Gupta. The plaintiffs case is a false one. The accommodation available to the plaintiff is sufficient. The notice to quit is not valid in law and it was not properly served.
( 3 ) THE learned Subordinate Judge accepted the defendant's version and dismissed the suit. The plaintiff went up in appeal.
( 4 ) THE learned appellate Court held that no undertaking had been given on behalf of the defendant to the plaintiff within the meaning of the provisions of Section 13 (1) (k) of the West Bengal Premises Tenancy Act. He found that the plaintiff's case of reasonable requirement for his own use and occupation and the case of illness of his wife and of himself could not be accepted. The further finding was that a valid notice was duly sent by the plaintiff and received by the defendant-company, The further finding was that the plaintiff's case regarding the provisions of Section 13 (1) (f) required further consideration. So, the suit was sent back on remand with some observations along with a direction to consider whether the plaintiff could make the proposed construction without evicting the defendant from the disputed premises and if total or partial eviction would be necessary. Against that decision, the present appeal has been filed by the defendant as first miscellaneous appeal,
( 5 ) THE plaintiff-respondent filed a cross-objection beyond time, i. e. , only on the 24th November, 1981, with a prayer under Section 5 of the Limitation Act to condone the delay and to accept the same,
( 6 ) IT has been argued on behalf of the appellant that the learned Additional District Judge arrived at a right finding regarding the provisions of Sections 13 (1) (k) and 13 (1) (ff) of the West Bengal Act XII of 1956, The plaintiff's case of reasonable requirement is false, No undertaking was given by or on behalf of the defendant to vacate the premises. The notice to quit, Ext. 3, was sent by registered post. It came back with an endorsement that it had been received by M/s. Andr
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