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High Court Of Calcutta
Before Mr. Justice Girish Chandra Gupta And Mr. Justice Manik Mohan Sarkar
PRAKASHWATI CHOPRA - Appellant
Versus
SIBAJI MITRA - Respondent
C. S. 480 Of 2002
Decided On : 08/17/2006
TENANCY - PREMISES TENANCY ACT - APPLICABILITY - LEASE - EXPIRY BY EFFLUX OF TIME - STATUS OF LESSEE - TRESPASSER - SUMMARY JUDGMENT - CHAPTER-13A OF ORIGINAL SIDE RULES - APPLICABILITY - LEAVE TO DEFEND - SECTION 116 OF TRANSFER OF PROPERTY ACT - REQUIREMENTS.
Fact of the Case:
Suit for recovery of possession with mesne profits was filed on the ground that the lease had expired by efflux of time. The defendant contended that the provisions of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as the Act) applied to the lease and that a suit for recovery of possession from such a tenant will only lie under Section 44 of the Act before the Rent Controller. The trial Court allowed the application for summary judgment under Chapter-XIIIA and decreed for vacant and peaceful possession.
Finding of the Court:
The Court held that a lease created by a registered document and a lease created by an oral agreement coupled with possession are both contractual in nature. Determination of a lease by efflux of time is one of such modes of determination under clause (a) of Section 111 of the Transfer of Property Act. A person continuing in possession after termination of the tenancy, he is bound to come within the definition of the term 'tenant' as defined in Section 2 (g) of the act, 1997 and the bar with regard to jurisdiction contemplated under Section 44 of the Act, 1997 shall naturally apply. When a tenant is continuing in possession after termination of the tenancy, he is bound to come within the definition of the term 'tenant' as defined in Section 2 (g) of the act, 1997 and the bar with regard to jurisdiction contemplated under Section 44 of the Act, 1997 shall naturally apply.
Issues: 1. Whether the defendant is a tenant within the meaning of the provisions of Section 2 (g) of the West Bengal Premises Tenancy Act, 1997? 2. Whether application for summary judgment was entertainable? 3. Whether leave should have been granted to defend in the facts and circumstances of the case?
Ratio Decidendi: 1. The Court held that a lease will not come within the purview of the Act of 1997, if it expires by efflux of time. The legislature intended to create environment which stimulates future construction and with this end in view the applicability of the act to post legislation registered leases was abolished altogether. And in order to strike a balance between interests of landlords and tenants the factor of bringing a pre-Act registered lease within the purview of rent legislation the criteria was shifted from mere terminability to actual termination. 2. The Court held that a suit for recovery of immovable property with or without a claim for mesne profit by a landlord against tenant whose term has expired is specifically provided for in Rule 1 of Chapter- XIIIA of the Original side Rules. Therefore, the case comes within the purview of Chapter-13a of the Original side Rules. 3. The Court held that Section 116 of the Transfer of property Act provides that if a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106. Omission to adjust the deposit against the rent for the year 1994 can never, in our view, be an indication of the fact that the plaintiff intended to allow the defendant to continue in possession. This fact on its own cannot lead to any such inference.
Final Decision: The appeal is dismissed.
( 2 ) THE lessee deposited a sum of Rs. 10,200/- as and by way of advance for which the lessor agreed to grant rebate of Rs. 75 per month on account of rent and further agreed to adjust the said sum of Rs. 10,200/- against rent payable for the year commencing from 1st January, 1994. Clause 13 of the lease provides as follows : -"at the expiration of the term of this lease or sooner determination thereof the lessee shall quit and vacate and give peaceful vacant possession of the demised premises to the lessor. "
( 3 ) THE lease came to an end on 31st December, 1994. Suit for recovery of possession together with mesne profits at the rate of rs. 5,000/- per day after expiry of the lease was filed on or about 9th october, 2002 on the sole ground that the lease had expired by efflux of time. The plaintiff claimed a decree for vacant and peaceful possession and also claimed a sum of Rs. 1,21,90,000/- as and by way of mesne profits and future mesne profits together with interest at the rate of 12 per cent per annum. In the aforesaid suit an application for summary judgment under chapter-XIIIA was filed which was allowed, by the learned trial Court by a judgment and order dated 17th February, 2006 in so far as the prayer for recovery of possession was concerned. However, the prayer for a decree on account of mesne profits has been relegated to trial. The contention, of the defendant, that the provisions of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as the Act) applied to the lease was negative by the learned trial Court on the basis that under Section 3 of the Act a registered lease executed before and after the act came into operation was specifically excluded. The trial Court further held that the defendant after expiry of the lease was in wrongful occupation of the premises and was a trespasser having no protection whatsoever in law.
( 4 ) AGGRIEVED by the decree for delivery of possession, the defendant has preferred the appeal.
( 5 ) MR. Thorat, learned Senior Advocate appearing in support of the appeal drew our attention to Section 2 (g) of the Act, 1997 which, in so far as the same is material for our purpose, is set out below : -"tenant means any person by whom or on whose account or behalf the rent of any premises is or, but for a special contract, would be payable, and includes any person continuing in possession after termination of his tenancy and, in the event of death of any tenant, also includes, for a period not exceeding five years from the date of death of such tenant or from the date of coming into force of this Act, whichever is later, his spouse, son, daughter, parent and the widow of his predeceased son, who were ordinarily living with the tenant up to the date of death of the tenant as the members of his family and were dependent on him and who do not, own or occupy any residential premises, and in respect of premises let out for non-residential purpose his spouse, son, daughter and parent who were ordinarily living with the tenant up to the date of his death as members of his family and were dependent on him 1 [or a person authorised by the tenant who is in possession of such premises. ] but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction".
( 6 ) HE submitted that "any person continuing in possession after the termination of his tenancy" would naturally include a lessee whose lease has expired by efflux of time and therefore he would come within the meaning of definition of the term 'tenant' as per the aforesaid Act and once that position is accepted a suit for rec
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