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2007 Supreme(Cal) 477
High Court Of Calcutta
Before Mr. Justice Maharaj Sinha And Mr. Justice Prabuddha Sankar Banerjee
PADMABATI SHAW - Appellant
Versus
MANABHWATI SHAW - Respondent
F. A. 56 Of 2005
Decided On : 06/29/2007
GOUTAM DAS, HARISH TANDON, JAHARLAL DEY, MANISH KUMAR MISHRA, S.SENGUPTA, Sudhis Das Gupta, SUDIPA ROY
A clause in a long lease allowing for its early determination or termination can only be effective if the lease itself is determined or terminated before the expiry of its full term.
Headnote:
LANDLORD TENANT - LEASE - SURRENDER - LEASE FOR 21 YEARS - CLAUSE PERMITTING PARTIES TO TERMINATE LEASE BEFORE ITS EXPIRY - LEASE NOT TERMINATED DURING ITS SUBSISTENCE - CLAUSE BECOMES INOPERATIVE - TENANT CANNOT RESIST EVICTION ON GROUND OF LEASE BEING PROTECTED UNDER WEST BENGAL PREMISES TENANCY ACT, 1956.
Fact of the Case:
Suit for eviction of respondents from a leased property after the expiry of the lease period of 21 years. The lease contained a clause allowing the lessee to surrender the lease upon giving two calendar months' notice and paying all dues. The respondents claimed protection under the West Bengal Premises Tenancy Act, 1956, contending that the clause made the lease terminable before its expiry and hence not a 'long lease' as defined in the Act. The trial court dismissed the suit, holding that the respondents became tenants under the Act and no notice under Section 13(6) was served.
Finding of the Court:
The High Court allowed the appeal, holding that the clause in question could only be effective if the lease itself was determined or terminated before the expiry of its full term. Since the respondents had the benefit of enjoying the full term of the lease without any interruption, the clause could not have any effect as it perished with the expiry of the lease.
Issues: Whether a clause in a lease allowing the lessee to surrender the lease before its expiry makes the lease terminable and hence not a 'long lease' as defined in the West Bengal Premises Tenancy Act, 1956.
Ratio Decidendi: A clause in a lease for 20 years or more allowing for its early determination or termination can only be effective if the lease itself is determined or terminated before the expiry of its full term. If the full term of the lease has expired and the same had not been determined or terminated during its subsistence, such a clause giving "option" to either the lessor or the lessee to terminate the lease before the fixed period of twenty years or more "would no longer be available as a defence against the eviction".
Final Decision: The appeal was allowed, the judgment and decree of the trial court were set aside, and the suit was decreed for eviction, rent in arrears, and mesne profits.
( 1 ) THIS is an appeal against a judgment and decree dated 31st July, 1998 passed in Title Suit No. 1957 of 1989 by the learned Trial judge, 9th Bench of the City Civil Court, at Calcutta.
( 2 ) BY the above judgment and decree under appeal the above suit of the plaintiff/appellant (appellant, in short) for eviction of the respondents or rather for a decree for recovery of vacant possession of the suit property and other incidental reliefs on account of rent in arrears and for mesne profits etc. was dismissed with costs.
( 3 ) THE learned Trial Judge, it appears, in dismissing the above suit of the appellant merely relied on a clause of the lease deed in question, namely, Clause (v) thereof, and held that by virtue of such clause the respondents became tenants (the original lessee was the father of the respondents) under the provisions of West Bengal Premises Tenancy Act, 1956 and since no notice under Section 13 (6) of the West Bengal Premises tenancy Act, 1956 was issued by the appellant for terminating the tenancy before the institution of the suit the appellant was not entitled to any decree for eviction and for recovery of possession of the suit premises against the respondents.
( 4 ) BEFORE I proceed to consider the merits of the appeal or rather the correctness of the judgment under appeal of the learned Trial Judge, i must say that when the hearing of this appeal commenced, we (I and My lord, Justice P. S. Banerjee) did not quite know that our task of deciding the appeal would be much easier by virtue of the recent pronouncement of the Supreme Court to which I shall shortly refer, as we came to know of the decision of the Supreme Court only after a few days of hearing of the appeal.
( 5 ) HOWEVER, since in my opinion, the said recent decision of the supreme Court squarely covers the only issue and the question raised before us in this appeal decisively and in no uncertain terms, I do not think I need to spend much time on the earlier decisions of this Court where similar or identical question as involved in the present appeal had to be dealt with and answered. In other words, since the recent Supreme court decision is a direct authority on the question with which I am concerned in this appeal I think that the appeal should unhesitatingly be allowed and the suit of the appellant which was dismissed by the learned trial Judge should be decreed in favour of the appellant.
( 6 ) THE facts of this case, I find, are short and practically not in dispute.
( 7 ) THE husband of the appellant, one Judhisthir Mohan Shaw, since deceased, purchased the suit premises at 74a, Bhupendra Bose Avenue, calcutta-700 004 from one Smt. Suprava Dutta, the wife of one Rabindra nath Dutta in the year 1969. At the time when the said purchase took place, the lease in question, namely, dated 24th January, 1969 was in existence. The said lease was granted by the said Smt. Suprava Dutta, the previous owner of the suit premises, in favour of the original defendant, sitaram Farmania, since deceased for a period of 21 years and the commencement of the said lease took effect from 1st November, 1968 at a monthly rental of Rs. 770/- payable according to English Calendar.
( 8 ) THE said lease covered the entire first floor of the suit premises, one store room, one kitchen and two garages on the ground floor and also two rooms (meant for domestic helps) on the Mezzanine floor.
( 9 ) NEEDLESS to mention that by virtue of the said purchase of the suit premises, firstly, the husband of the appellant and after the death of the husband the appellant herself became the lessor by virtue of the Will left by the husband of the appellant, the said Judhisthir Shaw, of which the appellant is the sole executrix and the sole beneficiary. The lease for 21 years admittedly expired on the last day of October 1989.
( 10 ) THE appellant by a letter of her Advocate dated 2nd June, 1989 requested the original defendant, namely, the said Sitaram Farm
