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2001 Supreme(Cal) 478
High Court Of Calcutta
Asok Kumar Ganguly, Pranab Kumar Chattopadhyay
UNION BANK OF INDIA - Appellant
Versus
VITHALBHAI PVT.LTD. - Respondent
C. A. J. 352 Of 1992
Decided On : 08/06/2001
DHRUBA GHOSH, DHRUBA JYOTI GHOSH, Hiranmoy Dutt, P.K.DAS
A suit for possession can only be filed when the plaintiff is entitled to possession on the date of the suit.
Headnote:
LANDLORD TENANT - LEASE - SUIT FOR RECOVERY OF POSSESSION - PREMATURE SUIT - CAUSE OF ACTION - ESTOPPEL OF TENANT - EVICTION BY TITLE PARAMOUNT - AMENDMENT OF PLAINT - TRANSFER OF PROPERTY ACT, 1882, SECTION 111 - SPECIFIC RELIEF ACT, 1963, SECTION 34 - EVIDENCE ACT, 1872, SECTION 116 - CIVIL PROCEDURE CODE, 1908, ORDER 6 RULE 17.
Fact of the Case:
Plaintiff-respondent, a lessee under a lease deed dated 25.6.1963, inducted defendant-appellant as a sub-lessee on 1.4.1964. The lease was to expire on 24.6.1984. Prior to the expiry of the sub-lease, the plaintiff-respondent filed a suit on 16.4.1984 claiming vacant possession and damages. The sub-lease expired on 24.6.1984, and the lease granted by the superior landlord to the plaintiff-respondent also expired on 25.6.1984. The suit was decreed on 12.2.1992, and the defendant-appellant filed an appeal.
Finding of the Court:
1. The suit was premature as it was filed before the expiry of the sub-lease on 24.6.1984. A suit for possession can only be filed when the plaintiff is entitled to possession on the date of the suit. 2. The suit did not become devoid of cause of action by reason of subsequent events, as the plaintiff-respondent lost its right to remain in lawful possession of the demised premises due to the expiry of the lease granted by the superior landlord and the threat of eviction by the superior landlord. 3. The defendant-appellant was not estopped from denying the title of the plaintiff-respondent under section 116 of the Evidence Act, as the tenancy had come to an end and the defendant-appellant was under threat of eviction by the superior landlord. 4. The principles laid down in the case of Ganesh Trading Pvt. Ltd. (AIR 1985 Calcutta 37) regarding eviction by title paramount are not correct and cannot be followed as a binding precedent. 5. The amendment of the plaint to incorporate subsequent events did not improve the position, as the suit was still not maintainable.
Issues: 1. Was the suit premature when it was instituted? 2. Has the suit become devoid of any cause of action by reason of subsequent events?
Ratio Decidendi: 1. A suit for possession can only be filed when the plaintiff is entitled to possession on the date of the suit. 2. A tenant is not estopped from denying the title of the landlord under section 116 of the Evidence Act when the tenancy has come to an end and the tenant is under threat of eviction by the superior landlord. 3. The principles laid down in the case of Ganesh Trading Pvt. Ltd. (AIR 1985 Calcutta 37) regarding eviction by title paramount are not correct and cannot be followed as a binding precedent. 4. Amendment of the plaint to incorporate subsequent events cannot improve the position if the suit was not maintainable in the first place.
Final Decision: The appeal was allowed, the judgment and decree of the learned single Judge were set aside, and the suit was dismissed.
( 1 ) THIS appeal has been filed challenging a judgment and decree dated 12. 2. 1992 passed by the learned single Judge in Suit No. 272 of 1984. By the said judgment and decree the learned judge decreed the suit in terms of prayers (a) and (b) of the plaint. The learned Judge also gave a decree for vacant possession of the suit premises and also passed a preliminary decree appointing an Advocate for ascertaining the mesne profit on and from 25. 6. 84 untill delivery of posesion. It was also ordered that upon conclusion of the enqiry, the plaintiff-respondent will be entitled to apply for final decree for the amount found due. On this appeal being filed against such judgment and decree, the appeal Court granted stay of the exectution of the decree for ejectment but did not interfere with the direction for enquiry into mesne profits.
( 2 ) THE basic facts of the case, which are not in dispute, are stated hereunder:
( 3 ) VITHALBHAI Pvt. Ltd. , a company incorporated under the Companies Act became a lessee under a lease deed dated 25. 6. 1963 for a period of 21 years from the superior landlord, namely, M/s. Wachel Molla and Sons Pvt. Ltd. , in respect of the suit property. In terms of the lease deed the said lease between the plaintiff respondent and the superior landlord was due to expire on 25. 6. 1984. On 1. 4. 1964 the defendan-appellant was inducted in the said leasehold property as a sub-lease at a monthly rent of Rs. 2975/- and possession was delivered to the defendant-appellant on and from 1. 4. 1964 but the lease was dated 17. 4. 1964. The lease was to expire on 24. 6. 1984.
( 4 ) IT is not indispute that the defendant-appellant was put in possession of the suit property on and from 1. 4. 1964.
( 5 ) PRIOR to the expiry of the said lease the Advocate of the Plaintiff-respondent wrote a letter to the defendant-appellant asking them to deliver vacant possession of the demised premises on the expiry of 24. 6. 1984.
( 6 ) TO the said letter, the Advocate of the defendant-appellant replied by taking the stand of refusal to vacate the demised premises in terms of the request made in the latter dated 26. 9. 1983.
( 7 ) BEFORE the expiry of the sub-lease and on 16. 4. 1984, the ejectment suit in question, namely 270 of 1984, was filed by the plaintiff-respondent claiming the following reliefs:
" (a) A declaration that the plaintiff is entitled to vacant and peaceful possession of the said premises to be delivered by the defendant to the plaintiff on the expiry of the term of the said Lease dated 17th July, 1964, i. e. on the expiry of 24th June, 1984.
(b) perpetual injunction restraining the defendant, its agents and servants from subletting, assigning of parting with possession of the said premises or any part thereof during the said term of the said lease and from giving possession of the said premises or any party thereof to any person other than the plaintiff on the expiry of the said Lease;
(c) A decree for vacant possession of the said premises on the expiry of the term of the said Lease as aforesaid.
(d) A decree for Rs,30,000/- for damages or alternatively, an enquiry into damages and a decree for such as may be found due to the palintiff.
(e)Receiver;
(f)Costs;
(g)further and other reliefs. "
( 8 ) THE sub-lease of the defendant-appellant expired by efflux of time on 24. 6. 1984 and the lease granted by the superior landlord, namely, M/s. Wachel Molla and Sons Pvt. , in favour of the plaintiff-respondent also expired on 25. 6. 1984 by efflux of time. Thereafter, admitedly M/s Wachel Molla and Sons Pvt. Ltd. filed a civil suit being suit No 493 of 1984 against the plaintiff-respondent as well as against the defendant-appellant for recovery of possession of the demised premises together with mesne profits and other reliefs. This Court has been given to understand that the said suit is still pending. Thereafter, on 12. 2. 1992 the suit filed by the plaintiff was decreed as aforesaid and against that this
