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1985 Supreme(Cal) 39
High Court Of Calcutta
SUKUMAR CHAKRAVARTY
SIBENDRA NATH - Appellant
Versus
GANES CHANDRA - Respondent
S. A. 342 Of 1976
Decided On : 01/31/1985
ASHOK KUMAR SENGUPTA, BANKIM CHANDRA DUTT, Sudhis Das Gupta, TARUN CHATTEJEE
A statutory tenant under the West Bengal Premises Tenancy Act has the same incidents as a contractual tenant, including the right to serve a notice to quit under Section 13 (1) (j) of the Act.
Headnote:
WEST BENGAL PREMISES TENANCY ACT - SECTION 13 (1) (J) - NOTICE TO QUIT - STATUTORY TENANT - VALIDITY - INCIDENTS OF STATUTORY TENANCY - WAIVER OF NOTICE TO QUIT.
Fact of the Case:
Plaintiff filed a suit for eviction of the defendant from the suit premises and for recovery of mesne profits. The plaintiff's case was that the defendant was a tenant under the plaintiff at a monthly rental of Rs. 60/- and that the defendant defaulted in payment of rent since May 1972. The plaintiff required the suit premises for the purpose of building and rebuilding and had sufficient means to undertake such work. The plaintiff sent a notice to quit dated 15-9-71 to the defendant terminating the tenancy with the expiry of October 1971 and asking him to vacate the suit premises. The defendant wrote a letter dated 6-1-72 to the plaintiff acknowledging the receipt of the notice dated 15-9-71 and intimating that he would vacate the suit premises and deliver possession of the same to the plaintiff within September 1972. The defendant did not vacate the suit premises. Accordingly, the plaintiff filed the suit for eviction.
Finding of the Court:
The learned Additional District Judge set aside the judgment and decree passed by the learned Munsif and in effect dismissed the suit although no express order to that effect was passed. The learned Additional District Judge relied on the decision in 77 Cal WN 515 that the defendant who became the statutory tenant on service of plaintiff's notice to quit dated 15-9-71 terminating the contractual tenancy, could no longer issue notice to quit under Section 13 (1) (j) of the West Bengal Premises Tenancy Act (hereinafter referred to as the Act) and that the plaintiff could not get eviction of the defendant on such notice.
Issues: 1. Whether the defendant's letter dated 6-1-72 was a valid notice to quit under Section 13 (1) (j) of the West Bengal Premises Tenancy Act? 2. Whether the decision in 77 Cal WN 515 is still good law in light of the Supreme Court decisions in AIR 1976 SC 2229 and AIR 1979 SC 1745? 3. Whether the plaintiff waived the notice to quit dated 15-9-1971 by accepting rent amicably for the period prior and posterior to the issue of notice to quit?
Ratio Decidendi: 1. The notice to quit under Section 13 (1) (j) of the Act is not governed by Section 13 (6) of the Act. The notice to quit under Section 13 (1) (j) of the Act will therefore be governed by Section 106 of the Transfer of Property Act read with Section 19 (2) of the Act with regard to the manner of the notice in the absence of any provision in this respect in the West Bengal Premises Tenancy Act. 2. The Supreme Court decisions in AIR 1976 SC 2229 and AIR 1979 SC 1745 have established that the "tenant" as defined in the State Rent Control Act like West Bengal Premises Tenancy Act has put the statutory tenant on par with the contractual tenant, having the same incidents. The said decisions by implication override the view of Mr. Justice Datta in 77 Cal WN 515 to the effect that the incidents of a statutory tenant under West Bengal Premises Tenancy Act are governed by statute, being distinctive from the incidents of contractual tenant, and that the incidents of such statutory tenancy do not empower the tenant to terminate such tenancy as in the case of contractual tenancy. 3. The plaintiff by his conduct never intended to treat tenancy as subsisting. So there was no waiver of the notice to quit dated 15-9-1971 by the plaintiff.
Final Decision: The second appeal is allowed on contest. The judgment and decree passed by the learned Additional District Judge setting aside the judgment and decree passed by the learned Munsif are set aside, and the judgment and decree passed by the learned Munsif are restored and confirmed. The defendant is allowed time for six months from the date to vacate the suit premises, failing which, the plaintiff shall get possession in the same in execution of the decree.
( 1 ) THIS second appeal is directed against the judgment and decree passed by the learned Additional District Judge, 10th Court, Alipore in Title Appeal No. 1102 of 1974 setting aside the judgment and decree passed by the learned Munsif, 4th Court, Alipore in Title Suit No. 403 of 1972 and in effect dismissing the suit although the learned Additional District Judge has not made any express order to that effect. Such an omission ought not to have occurred in the judgment of the learned Additional District Judge.
( 2 ) PLAINTIFF filed the aforesaid title suit for eviction of the defendant from the suit premises and for recovery of mesne profits. It was the case of the plaintiff in brief that the defendant was the tenant under the plaintiff in respect of the suit premises at the monthly rental of Rs. 60/- according to English Calendar and that the defendant defaulted in payment of rent since May, 1972. The plaintiff required the suit premises for the purpose of building and rebuilding as the same was old and in dilapidated condition, and the plaintiff had sufficient means to undertake such work. The plaintiff accordingly sent a notice to quit dated 15-9-71 to the defendant terminating the tenancy with the expiry of October, 1971 and asking him to vacate the suit premises. The said notice was duly served upon the defendant who wrote a letter dated 6-1-72 to the plaintiff acknowledging the receipt of the notice dated 15-9-71 and intimating that he would vacate the suit premises and deliver possession of the same to the plaintiff within September, 1972. The defendant did not vacate the suit premises. Accordingly the plaintiff filed the suit for the relief as claimed basing on the plaintiff's notice dated 15-9-71 and the defendant's notice in the form of the letter dated 6-1-72.
( 3 ) THE defendant contested the suit after filing the written statement. The defendant challenged the validity of plaintiff's notice dated 15-9-71 and contended that the plaintiff under undue influence, coercion and pressure got the signature of the defendant on the letter dated 6-1-72. The defendant denied the plaintiff's requirement of the suit premises for the purpose of building and rebuilding and denied also the alleged default in payment of rent.
( 4 ) BEFORE the learned Munsif, the learned Advocates on both sides made their argument only on the point of notice, dated 6-1-72 sent by the defendant intimating the plaintiff that he would vacate the suit premises, although some other issues were also framed in the suit. The learned Munsif treated the defendant's letter dated 6-1-72 as the defendant's notice to quit to the plaintiff under Section 13 (1) (j) of the West Bengal Premises Tenancy Act and found the same as valid notice and passed the judgment and decree in favour of the plaintiff only on that ground.
( 5 ) ON appeal, the judgment and decree of the learned Munsif were challenged at the time of argument of the point of notice to quit alone and the learned Advocates on both sides argued on the point of notice alone. Although the suit was contested at the time of argument on the point of defendant's alleged notice dated 6-1-72 before the learned Munsif and although before the learned Additional District Judge also, the appeal was contested at the time of argument on the point of notice alone, the learned Additional District Judge appears to have wrongly observed at the time of framing the point at issue in his judgment that the learned Advocates appearing on behalf of both sides submitted before the court that they would argue only on the point of the validity of the notice dated 15-9-71 and effect thereof without mentioning the validity of the defendant's alleged notice dated 6-1-72 and effect thereof. It however appears from the perusal of the whole judgment of the learned Additional District Judge that he considered the validity and effect of the defendant's notice dated 6-1-72 and arrived at the finding placing reli
