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1998 Supreme(Cal) 220
High Court Of Calcutta
NIRENDRA KRISHNA MITRA, ASISH BARAN MUKHERJEE
PREM NATH DIESELS PRIVATE LIMITED - Appellant
Versus
ALOKA DAM - Respondent
FIRST APPEAL 87 Of 1992
Decided On : 05/14/1998
ARUN PRAKASH CHATTERJI, CHANDAN MISHRA, CHANDRANATH MUKHERJI, KALIMUDDIN MONDAL, RANAJIT CHOWDHURY, S.DAS GUPTA, Sadhan Roy Choudhury
An agreement in writing entered into by a tenant with the landlord subsequent to the creation of the tenancy and during the pendency of the tenancy, whereby the tenant agrees to deliver vacant possession of the premises to the landlord after a particular period, is a valid agreement under Section 13 (1) (k) of the West Bengal Premises Tenancy Act, 1956, and the tenant can be evicted if he fails to vacate the premises after the expiry of the said period.
Headnote:
WEST BENGAL PREMISES TENANCY ACT, 1956 - S. 13 (1) (K) - AGREEMENT TO VACATE - SUBSEQUENT TO CREATION OF TENANCY - ADMISSIBILITY OF UNREGISTERED LEASE - COLLATERAL PURPOSE.
Fact of the Case:
In this case, the plaintiff filed a suit for eviction of the defendant company from the suit premises on the ground that the defendant company had failed to vacate the premises after the expiry of the tenancy period as agreed in a written agreement dated 1st July, 1987. The defendant company contested the suit, claiming that the agreement was not a valid agreement subsequent to the creation of the tenancy and that the tenancy was protected under the West Bengal Premises Tenancy Act, 1956.
Finding of the Court:
The court held that the agreement dated 1st July, 1987 was an agreement in writing entered into by the defendant company with the plaintiff subsequent to the creation of the tenancy and during the pendency of the tenancy, and that the defendant company had agreed in writing to deliver vacant possession of the suit premises to the plaintiff after a particular period. The court also held that the unregistered lease deed (Exhibit No. 1) could be used for the collateral purpose of showing that an agreement was entered into in writing by the defendant company after the creation of its tenancy and during the pendency of the said tenancy that it would vacate the disputed premises with the expiry of the period as contained in the said deed.
Issues: 1. Whether the agreement dated 1st July, 1987 was an agreement in writing entered into by the defendant company with the plaintiff subsequent to the creation of the tenancy and during the pendency of the tenancy? 2. Whether the unregistered lease deed (Exhibit No. 1) could be used for the collateral purpose of showing that an agreement was entered into in writing by the defendant company after the creation of its tenancy and during the pendency of the said tenancy that it would vacate the disputed premises with the expiry of the period as contained in the said deed?
Ratio Decidendi: 1. The court relied on the provisions of Section 13 (1) (k) of the West Bengal Premises Tenancy Act, 1956, which provides that a tenant can be evicted if he has agreed in writing with the landlord to deliver vacant possession of the premises to the landlord and has failed to do so, and that such agreement in writing must be subsequent to the creation of the tenancy. 2. The court also relied on the provisions of Section 49 of the Indian Registration Act, 1908, which provides that an unregistered document affecting immovable property and required by the said Act, or the Transfer of Property Act, 1882, to be registered may be received as evidence of any collateral transaction not required to be effected by registered instrument.
Final Decision: The court dismissed the appeal filed by the defendant company and upheld the judgment of the trial court, which had decreed the suit in favor of the plaintiff and ordered the eviction of the defendant company from the suit premises.
( 1 ) - The plaintiff/respondent filed Title Suit No. 43 of 1989 in the 2nd Court of the learned Assistant District Judge at Alipore against the defendant/appellants for eviction from the suit premises alleging inter alia, in the plaint that the plaintiff inducted the defendant company as monthly tenant in respect of the ground floor flat of premises No. 43, Jhowtola Road, at present renamed as Fazlul Haque Sarani, Calcutta-19, of which the plaintiff was the owner, at a monthly rental of Rs. 5,000/- payable according to the English Calendar, for a period of 3 years from lst of July, 1980 to 30th June, 1983 as per the tenancy agreement dated 21st June, 1980. Subsequently, after the expiration of the said period of tenancy, at the request of the defendant company, the plaintiff allowed the tenancy to continue for another period of 3 years commencing from 1st July, 1983 till 30th June, 1986 in terms of the renewal clause in the said agreement dated 21st June, 1980 with an enhancement of rent from Rs. 5,000/- to Rs. 5,500/- per month payable according to the English Calendar. Prior to the expiry of the said renewed period, the plaintiff by a letter dated 30th April, 1986 requested the defendant company to vacate the suit premises immediately after the expiry of the renewed period. The defendant company, however, without vacating the suit premises sent rent for the month of May, 1986 by account payee demand draft, which was duly refused by the plaintiff. The plaintiff also informed the defendant company that as there was security deposit of Rs. 15,000/- lying with the plaintiff, the same would be adjusted against the rent for the months of May and June, 1986 and the balance Rs. 4,000/- was to be refunded thereafter. The defendant company, however, through its solicitors and Advocates M/s. Khaitan and Company wrote a letter on 12th June, 1986 to the plaintiff inter alia, claiming therein that the defendant company was a monthly tenant under the plaintiff in terms ofthe West Bengal Premises Tenancy Act, 1956. The defendant company, subsequently, requested the plaintiff to allow induction of a sub-tenant namely M/s. Bharat Power Corporation (P) Ltd. in place and stead of the defendant company in the suit premises but the said request was flatly refused by the plaintiff by her letter dated 30th September, 1986. Subsequently, however, in the month of January, 1987, the defendant company expressed its intention to vacate the suit premises by the end of March, 1987 and the plaintiff relying on the said assurance and promise, wrote a letter to the defendant company dated 6th March, 1987 and intimated the defendant company that her men and/or agent would be present to accept delivery of possession on 1st of April, 1987, in reply to which, the defendant company intimated the plaintiff that the defendant company was looking for alternative arrangement, and if it was successful in getting alternative accommodation, it would vacate the suit premises. The defendant company, however, did not vacate the suit premises by 31st March, 1987. Subsequently however, according to the plaintiff, the defendant company inducted M/s. Bharat Power Corporation (P) Ltd. as a sub-tenant in the suit premises without the consent of the plaintiff. By her letter dated 30th March, 1987, the plaintiff duly intimated the defendant company that by its acts and conducts it had violated the undertaking to vacate the suit premises. Immediately on receipt of the same, the defendant company with a mala fide motive purported to send a demand draft for the sum of Rs. 22,000/- alleging to be the rent for the months of October, 1986 to March, 1987. The plaintiff, however, returned the same to the defendant company by her covering letter dated 17-4-87.
( 2 ) THE plaintiff further alleged, that on the persuation of the said M/s. Khaitan and Company with the father of the plaintiff, the matter was ultimately settled and on the assurance and express written undertaki
