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2006 Supreme(Cal) 439
High Court Of Calcutta
Before: Pranab Kumar Deb, J.
AJOY KUMAR SADHU - Appellant
Versus
RINA SAHA - Respondent
C. O. 2326 Of 2006
Decided On : 07/20/2006
CHANDRADOY RAY, JAKIR HOSSAIN, N.C.MATTY, S.K.Samanto, SABYASACHI BHATTACHARYA, Saktinath Mukherjee, Saptangshu Basu
A tenant is entitled to change the nature of his business with the consent of the landlord and is not liable to be evicted for such change if it does not cause any substantial damage to the property.
Headnote:
TENANCY LAW - CHANGE OF BUSINESS - ENCROACHMENT - INJUNCTION - Acceptance of proposal by landladies to change business from grocery shop to medicine shop - Petitioner agreed to pay enhanced rent - Permission granted to effect repair for running the business - Allegation of encroachment and renovation to secure eviction of tenant - Trial Court and Appellate Court erred in proceeding on the wrong footing that the tenancy comprised of an area of 240 square ft. - Revisional application allowed, setting aside the orders of the lower courts and directing the trial court to dispose of the suit expeditiously.
Fact of the Case:
The petitioner, a tenant, was accepted as a tenant in respect of the suit property after the demise of his father. On the death of the erstwhile landlady, the property devolved upon the plaintiffs, who authorized them to collect rents from her tenants. The petitioner approached the plaintiffs for permission to change his nature of business of a grocery shop to that of a retail medicine shop in the suit premises, which was accepted. The rent was enhanced from Rs. 125 to 2000 per month. Permission was also accorded to effect repair in the suit premises for the purpose of running the business. The plaintiffs alleged that the petitioner, in the garb of repair, had dismantled the wall of the suit premises and also encroached upon the portions of the plaintiff in the suit premises. They filed a suit for declaration and injunction to restrain the petitioner from doing the illegal work of renovation and for mandatory injunction for dismantling the illegal construction.
Finding of the Court:
The court found that the landladies had accepted the proposal of the petitioner to use approximately 450 square ft. area for the proposed medicine shop and had also accorded their sanction to the aforesaid change over of the business. Permission was also accorded to cause necessary repairing with temporary fittings and fixtures without changing the nature and character of the same. The court held that the lower courts erred in proceeding on the wrong footing that the medicine shop was required to be set up within a covered area of 240 square ft. only and that the Trial Court accepted the contention of the encroachment the other portion of the building.
Issues: 1. Whether the landladies had accepted the proposal of the petitioner to change the business from grocery shop to medicine shop? 2. Whether the petitioner was entitled to use approximately 450 square ft. area for the proposed medicine shop? 3. Whether the lower courts erred in proceeding on the wrong footing that the medicine shop was required to be set up within a covered area of 240 square ft. only?
Ratio Decidendi: The court held that the landladies had accepted the proposal of the petitioner to change the business from grocery shop to medicine shop and had also accorded their sanction to the aforesaid change over of the business. Permission was also accorded to cause necessary repairing with temporary fittings and fixtures without changing the nature and character of the same. The court held that the lower courts erred in proceeding on the wrong footing that the medicine shop was required to be set up within a covered area of 240 square ft. only and that the Trial Court accepted the contention of the encroachment the other portion of the building.
Final Decision: The revisional application was allowed, setting aside the orders of the lower courts and directing the trial court to dispose of the suit expeditiously.
( 1 ) THIS instant revisional application has been directed against the Judgment and order dated 17th May, 2006 passed by the learned Additional District Judge, Fast Track Court-Ill, Sealdah in Misc. Appeal 34 of 2006 whereby the Judgment and order dated 20th March, 2006 passed by the learned Civil Judge (Junior Division), 2nd Court at sealdah in Title Suit No. 291 of 2005 was affirmed.
( 2 ) AS noted in the revisional application as well as the objection thereto, the father of the petitioner was inducted in the suit premises by the erstwhile landlady. The petitioner was accepted as a tenant in respect of the suit property after demise of his father. On the death of erstwhile landlady, Smt. Kamala Saha inherited the property as her sole legal heir. Subsequently, it devolved upon Jogeswari Saha who during her lifetime executed a power of attorney in favour of the plaintiffs, authorizing them to collect rents from her tenants. On the defendant approaching the plaintiffs for according permission to change his nature of business of a grocery shop to that of a retail medicine shop in the suit premises, the proposal so made by the petitioner/ defendant was accepted. The rent was enhanced from Rs. 125 to 2000 per month, payable as per English Calendar month. Permission was also accorded to effect repair in the suit premises for the purpose of running the business.
( 3 ) ALLEGING that the defendant in the garb of repair had dismantled the wall of the suit premises and also encroached upon the portions of the plaintiff in the suit premises, the plaintiffs approached the Calcutta municipal Corporation for redressal of their grievance in view of illegal work of renovation. The plaintiffs also sought intervention of the local police station. A suit for declaration and injunction was filed for the purpose of restraining the defendant from doing the illegal work of renovation. Prayer for mandatory injunction for dismantling the illegal construction was also made on behalf of the plaintiff. The Trial Court was pleased to pass an order of injunction, restraining the defendant from carrying out renovation work in the suit premises. He was also restrained from changing the nature of the character of the suit property. The order of injunction was made absolute vide order dated 20/03/06. By another order on the same date, the learned Trial Court was pleased to allow the application under section 151 CPC filed by the plaintiffs with a direction upon the defendant not to run the retail medicine shop in the suit premises until further order. Both the orders were challenged before the Appellate Court. Affirming the order of the trial Court, the learned Additional District Judge was pleased to dismiss the misc. appeal.
( 4 ) DRAWING the attention of the Court to the averments made in the plaint, Mr. Sakti Nath Mukheijee, learned senior counsel, has submitted that since the landladies accepted the proposal for change of the business, they cannot back out from the terms and conditions made earlier. Nothing was done behind the knowledge of the landladies. Since there was acceptance of the proposal of change of business, the tenant agreed to pay rent @ 2000 per month from Rs. 125. Acting on such agreement, rent was continued to be paid @ Rs. 2000 per month. Conversion of grocery shop into medicine shop required some adjustments. This is precisely what has been done by the defendant/ petitioner. The boggy of encroachment and renovation has been raised to secure eviction of the tenant/petitioner from the suit premises, as contended by Mr. Mukherjee.
( 5 ) COMMENTING on the alleged encroachment made by the petitioner, mr. Mukherjee has submitted that the Trial Court as well as the appellate Court totally overlooked the aspects that the land ladies accepted the proposal of the petitioner to use nearly 450 square ft. area out of the total tenanted portion covering an area of nearly 1600 square ft. for the purpose of setting up of a medicine
