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High Court Of Calcutta
Satyabrata Sinha, Pratap Kumar Ray
MAKALI ENGG.WORKS PVT.LTD. - Appellant
Versus
DALHOUSIE PROPERTIES LTD - Respondent
APD 308 Of 1997
Decided On : 12/04/2000
LEASE - TENURE - COMPUTATION - COMMENCEMENT OF TERM - TRANSFER OF PROPERTY ACT, 1882, SECTION 105 - WEST BENGAL PREMISES TENANCY ACT, 1956, SECTION 8 - ADMISSION - AMENDMENT OF WRITTEN STATEMENT - CIVIL PROCEDURE CODE, 1908, ORDER 12 RULE 6 - MESNE PROFIT - CALCULATION.
Fact of the Case:
The appellant, a tenant, filed an application for amendment of the written statement to resile from an admission made in the original written statement that the tenancy was for a fixed period of 20 years, commencing from 18th July, 1975, and ending on 17th July, 1995. The plaintiff, the landlord, filed a suit for eviction on the ground of default, subletting of the premises without the consent of the landlord, and unauthorized construction of the mezzanine floor.
Finding of the Court:
1. The tenure of a lease must be computed from the date of commencement thereof even if the same takes place anterior to the date of execution thereof. 2. An admission made by a defendant in his written statement can neither be resiled from nor explained away. However, an admission on a question of law can be withdrawn. 3. A Court of Law, having regard to the facts and circumstances of the case, must arrive at a conclusion that it has jurisdiction to pass a decree. By reason of consent of parties or by reason of mere admission jurisdiction cannot be conferred upon a Court which it did not have.
Issues: 1. Whether the deed of lease for a fixed period shall take effect from the date of execution thereof or anterior thereto for any purpose whatsoever? 2. Whether an application for amendment of the written statement explaining or resiling from an admission made in the original written statement can be allowed?
Ratio Decidendi: 1. The definition of lease in Section 105 of the Transfer of Property Act, 1882, read with Section 5 thereof, indicates that for the purpose of the provisions of the West Bengal Premises Tenancy Act, 1956, the tenure of lease must be not less than 20 years, which in turn would mean that transfer of property as such must take place by the lessor in favor of the lessee giving rise to their respective rights and obligations as contemplated under Section 108 of the Transfer of Property Act. 2. An admission made by a party creates an estoppel. It is admissible against him proprio vigore but it is also equally well-settled that there cannot be any estoppel against a statute. An admission made by a party on a question of law is not binding on the Court. The Court must arrive at a conclusion on the basis of the facts and circumstances of the case and the applicable law. 3. A Court of Law must satisfy itself about the existence of its jurisdiction to pass a decree. Once a question of jurisdiction arises, the procedural rules like estoppel or res judicata cannot have any application whatsoever.
Final Decision: Both the appeals are allowed. The impugned judgment is set aside and the matter is remitted back before the appropriate Bench with the observations made hereinbefore.
( 2 ) THE basic fact of the matter is not in dispute.
( 3 ) THE defendant is the appellant and tenant under the plaintiff/respondent. The plaintiff/respondent filed a suit for eviction on or about 26. 4. 1989 purported to be in terms of the provisions of the West Bengal Premises Tenancy Act (hereinafter called and referred to, for the sake of brevity, as "the said Act") on the ground of: (1) default, (2) subletting of the premises without the consent of the landlord, and (3) unauthorised construction of the mezzanine floor.
( 4 ) IN the plaint, the plaintiff described the defendant as a monthly tenant. The defendant for occupation of the said premises was to pay a monthly rent of rs. 4,200/ -. In the plaint it was inter alia prayed for the following reliefs by the plaintiff :" (a) Decree for recovery of vacant and peaceful possession of the portion of the ground floor of the premises No. 6d, R. N. Mukherjee Road, Calcutta fully described in the schedule 8a8 hereof; (b) decree for Rs. 1,04,985. 08p. on account of arrears of rent with interest as claimed under para 7 hereof; (c) further interest from March 16, 1989 including interim interest and interest upon judgment; (d) decree for mense profits @ Rs. 1,300/-per diem from March 1, 1989 until recovery of vacant possession; (e) alternatively, enquiry into mesne profits and decree for such sum and at such rate as this Hon'ble Court may deem fit and proper. "
( 5 ) THE defendant however in its written statement inter alia raised the plea that as the tenancy was for a fixed period of 20 years commencing from 18th july, 1975 they cannot be evicted unless the said period is over. Similar such statement was also made in other affidavits. Upon expiry of the aforementioned period of 20 years an application was filed by the plaintiff to pass a decree on admission inter alia stating as under :"8. That the defendant has in the facts and circumstances expressly admitted in its pleadings a question of fact that he is a lessee under the petitioner in terms of registered Deed of Lease executed on January 5, 1976 for a period of 20 years commencing from July 18, 1975 and ending on July 17, 1995. In other words the defendant has admitted that the protection of the W. B. P. T. A. 1956 does not apply to the concerned lease. ""9. The defendant has also admitted that the lease of the defendant came to an end on July 17, 1995 by efflux of time. The plaintiff is therefore entitled to recover possession of the suit premises. ""10. The said admission is an admission of the essence in the plaintiffs suit for recovery of possession of a premises from the tenant. In fact the defendent has admitted the claim of the petitioner for recovery of possession. There are no other controversial issues involved in the suit with regard to the said issue. The admission of the defendant then as a whole would go to prove the complete admission of the defendant to the plaintiffs' claim. "
( 6 ) THE prayers made in the said application inter alia were as follows :"a) Judgment and decree for eviction be passed in respect of the suit premises as described fully in the schedule to be plaint. b) The defendant be directed to forthwith deliver vacant possession of the suit premises to the plaintiff. "
( 7 ) THE appellant thereafter filed an application for amendment of the written statement on or about 30. 9. 1996 inter alia contending as under :"6. Your petitioner states that admission was made under some misapprehension or mistake, particularly by inadvertence or erroneously in ignorance of true fact that your p
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