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2006 Supreme(Cal) 124
High Court Of Calcutta
Bhaskar Bhattacharya, Pravendu Narayan Sinha
TEAM CONSULTANTS PRIVATE LIMITED - Appellant
Versus
SWAPNA LAHIRI - Respondent
C. A. N. 272 Of 2006
Decided On : 03/01/2006
ANIRUDDHA CHATTERJEE, JAY SAVLA, SHAMIT SANYAL, Sudhis Das Gupta
A tenant who has once obtained the benefit of section 17 (4) of the West Bengal Premises Tenancy Act will not get such protection against eviction in case of a second default if such second default is for more than four months within a period of twelve months in respect of the selfsame tenancy.
Headnote:
WEST BENGAL PREMISES TENANCY ACT - SUIT FOR EVICTION - DEFAULT IN PAYMENT OF RENT - SECOND DEFAULT - CONTINUITY OF TENANCY - NOTICE TO QUIT - VALIDITY - RELATIONSHIP OF LANDLORD AND TENANT - RENT AND TAXES - DISTINCTION - APPLICABILITY OF SECTION 17 (4).
Fact of the Case:
Suit for eviction on the ground of default in payment of rent. Appellant contended that the tenancy was not in continuity of the earlier one and, therefore, he was not a defaulter for a second time. The notice given by the plaintiff No. 1 alone claiming to be the sole landlord was invalid as both the plaintiffs were the landlords. The rate of rent was Rs. 2,000/- per month and the municipal charges were not part of the rent.
Finding of the Court:
The present tenancy is not the continuation of the previous one and, therefore, the appellant cannot be said to be a defaulter for a second time. The notice given by the plaintiff No. 1 alone claiming to be the sole landlord is invalid as both the plaintiffs were the landlords. The rate of rent was Rs. 2,000/- per month and the municipal charges were not part of the rent.
Issues: 1. Whether the present tenancy is the continuation of the previous one? 2. Whether the notice given by the plaintiff No. 1 alone claiming to be the sole landlord is valid? 3. What is the rate of rent and whether the municipal charges are part of the rent?
Ratio Decidendi: 1. The present tenancy is not the continuation of the previous one as there was no attornment of tenancy on the request of the inducting landlord and no acquisition of the title from the inducting landlord as no title deed has been executed in favor of Ashok Chandra Lahiri or his heirs. 2. The notice given by the plaintiff No. 1 alone claiming to be the sole landlord is invalid as both the plaintiffs were the landlords. 3. The rate of rent was Rs. 2,000/- per month and the municipal charges were not part of the rent as they are payable to the corporation in lieu of the service rendered to the occupiers and not by the landlord.
Final Decision: Appeal allowed. Judgment and decree passed by the learned Trial Judge set aside. Suit for ejectment filled by the plaintiffs dismissed.
( 1 ) THIS first appeal is at the instance of a defendant in a suit for eviction and is directed against the Judgment and Decree dated 25th June. 2003 passed by the learned Judge, 5th bench, City Civil Count at Calcutta in Ejectment Suit No. 166 of 1996 thereby passing a decree for eviction of the present appellant on the ground of default in payment of rent with the observation that the defendant, in an earlier suit having obtained relief under section 17 (4)of the West Bengal Premises Tenancy Act ("act"), was not entitled to get further benefit of protection under that provision of the Act.
( 2 ) THE respondent No. 1 along with one Arun Chandra Lahiri. since deceased, the predecessor-in-interest of respondent Nos. 2 (a) and 2 (b)filed a suit being Ejectment Suit No. 166 of 1996 against the appellant on the ground of default in payment of rent from September, 1993.
( 3 ) THE case made out by the plaintiff-respondents may be summed up thus: (a) One Mrs. Kanwal Madan, the proforma defendant was the original owner of the suit property. On 29th May, 1986 the said Mrs. Kanwal Madan delivered possession of the flat to Shri Ashok chandra Lahiri. the husband of the respondent No. 1. (b) The appellant was inducted by Mrs. Kanwal Madan as a tenant in respect of the said flat at a monthly rental of Rs. 2,000. 00. Consequent to the sale of the said flat by Mrs. Kanwal Madan to shri Ashok Chandra Lahiri, the tenancy of the appellant was attorned in favour of Ashok Chandra Lahiri and the appellant continued to pay rent to the said Ashok Chandra Lahiri and thus, accepted him as its landlord. . (c) The said Ashok Chandra Lahiri died on 15th January, 1995 leaving the respondent No. 1 as his wife and one Smt. Urmila lahiri, since deceased, being his mother, as his sole heirs and legal representative. The said Smt. Urmila Lahiri during her lifetime released and relinquished her right, title and interest in the said flat in favour of respondent No. 1 and thus, the respondent No. 1 became the sole and absolute owner of the disputed property. (d) Smt. Urmila Lahiri died on 19th February, 1996 leaving the respondent No. 1, the widow of her predeceased son and another son, vix. Arun Chandra Lahiri. the predecessor-in-interest of the respondent No. 2 (a) and 2 (b) as her sole heirs and legal representatives and as such, the said predecessor-in-interest of the Respondent No. 2 (a) and 2 (b) had been impleaded as plaintiff no. 2 by way of
abundant caution, even though, the respondent no. 1 was the sole and absolute owner of the suit property. (e) The appellant, was inducted by virtue of a lease dated November 2/1/1977 expiring with November 20. 1982 but the appellant failed to vacate the said flat and accordingly, a suit was filed against the appellant by the previous owner, namely. Mrs. Kanwal Madan for eviction on the ground of default in payment of rent. (I) Being a case of first default, the appellant got protection after having paid the outstanding amount of rent and thus, the Court dismissed the earlier Ejectment Suit No. 1028 of 1982 by a decree dated 5th March. 1986 after giving protection to the Appellant under section 17 (4) of the Act. (g) The appellant failed and neglected to pay any part of the increased occupiers' share of the consolidated tax imposed by Corporation of Calcutta and on account of non-payment of commercial surcharge, a sum of Rs. 92,309. 00 was due and payable by the appellant to the plaintiff No. 1 up to 31st December. 1995. (h) The appellant was a habitual defaulter and accordingly, the plaintiff No. 1 was compelled to initiate distress case being Suit no. 1 of 1988 against the appellant and after the issue of the distress warrant, the appellant made payment of the arrears of rent. (i) The plaintiff No. 1 by a notice dated December 15, 1995 under section 13 (6) of the West Bengal Premises Tenancy Act and section 106 of Transfer of Property Act terminated the tenancy of the appellant asking it t
