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High Court Of Calcutta
Pinaki Chandra Ghose And Tapan Kumar Dutt, JJ.
REFUGEE HANDICRAFTS - Appellant
Versus
SHREE GOPAL JEW - Respondent
G. A. 217 Of 2006
Decided On : 09/19/2006
WEST BENGAL PREMISES TENANCY ACT - SECTION 13(1)(J) - SECTION 16(1) - SUIT FOR EVICTION - SUB-TENANCY - NOTICE - COLLUSION - ESTOPPEL - ORAL AGREEMENT - DECREE - BINDING EFFECT:
Fact of the Case:
Plaintiffs, the owners of the suit premises, filed a suit for eviction against the defendant, who was the assignee of the original tenant. The defendant gave notice to the plaintiffs under section 13(1)(j) of the West Bengal Premises Tenancy Act, 1956, upon expiry of the period of the said original lease. The defendant did not comply with the agreement dated 12th December, 1979 and a notice to quit issued to the plaintiffs on 23rd April, 1985. On default, the plaintiffs instituted a suit in the Alipore Court against the defendant for eviction and delivering up of the vacant possession of the said suit premises. The said suit was transferred before this Court under clause 13 of the Letters Patent. After the suit was transferred, an application was filed for appointment of a Receiver and further a summons was taken out in the said suit under Chapter XIIIA of the Rules of the Original Side of this Court for eviction of the said defendant. On such application the suit was decreed on 5th September, 1985. The said decree was served upon the Refugee Handicrafts who were in possession at that point of time under the said defendant. On 25th September, 1985 plaintiffs made an application for execution of the decree dated 5th September, 1985. Refugee Handicrafts on 27th September, 1985 filed an application inter alia praying for an order that the Refugee Handicrafts be added as a party defendant to defend the suit and further for setting aside the said decree. Alternatively, leave was also prayed by the Refugee Handicrafts to file a separate suit challenging the decree dated 5th September, 1985.
Finding of the Court:
The court held that the Refugee Handicrafts, being a sub-tenant, was not entitled to protection under the West Bengal Premises Tenancy Act, 1956, as no notice under section 16(1) of the Act was served upon the plaintiffs by the Refugee Handicrafts. The court further held that the Refugee Handicrafts was estopped from taking any other pleas as they had paid rent to the original tenant and his assignee, the defendant, and had accepted the tenancy under the defendant. The court also held that the decree passed in the suit was not collusive merely because the sub-lessee was not impleaded or did not contest the suit.
Issues: 1. Whether the Refugee Handicrafts was entitled to protection under the West Bengal Premises Tenancy Act, 1956, as a sub-tenant. 2. Whether the Refugee Handicrafts was estopped from taking any other pleas as they had paid rent to the original tenant and his assignee, the defendant, and had accepted the tenancy under the defendant. 3. Whether the decree passed in the suit was collusive merely because the sub-lessee was not impleaded or did not contest the suit.
Ratio Decidendi: 1. A sub-tenant is not entitled to protection under the West Bengal Premises Tenancy Act, 1956, unless a notice under section 16(1) of the Act is served upon the landlord. 2. A sub-tenant who has paid rent to the original tenant and his assignee, and has accepted the tenancy under the assignee, is estopped from taking any other pleas. 3. A decree passed in a suit is not collusive merely because the sub-lessee was not impleaded or did not contest the suit.
Final Decision: The appeal filed by the Refugee Handicrafts was dismissed. The court also directed the Refugee Handicrafts to pay the said sum of Rs. 3,10,842.51 as interest at the rate of 10% per annum on the defaulted amount from December, 1993 till June, 2005.
( 1 ) THIS appeal is arising out of an order passed by the Hon'ble First Court dated 11th September, 1986.
( 2 ) TWO applications were filed:- one by Shree Shree Gopal Jew and Others and the other was fiied by Refugee Handicrafts before the Hon'ble First court stated to be the sub-tenant in respect of the suit premises.
( 3 ) BRIEFLY the facts of the case are as follows: the plaintiffs were and are the owners of the premises Nos. 2a and 3a, gariahat Road, Kolkata (hereinafter referred to as the said premises ). Pursuant to an order dated 19th September, 1968 passed by this Court in suit No. 1760 of 1966 (Gobindalal Arora vs. Shree Shree Gopal Jew and Ors.), a Receiver was appointed over the said premises. By a registered deed of lease dated 6th March, 1969 a portion of the said premises was leased out to one Gobindalal Arora. The plaintiffs were the confirming parties to the said tease.
( 4 ) PURSUANT to the order of this Court the said Gobindalal, put in possession of the portion of the said premises subject to existing lease (lease dated 6th march, 1969 ). It is also to be noted that by a further deed of lease dated 12"1 december, 1979 the original lease dated 6th March. 1969 executed by the receiver in favour of the said Gobindalal, was modified and registered.
( 5 ) ON 4th July, 1984 by a registered deed of assignment, said Gobindalal transferred and assigned his right, title and interest in respect of the suit premises in favour of one Jumbo Traders Private Limited, the defendant.
( 6 ) THE said defendant Jumbo Traders Private Limited as the assignee was bound to carry out the agreement dated 12th December, 1979 for delivering up quiet, vacant and peaceful possession of the suit premises to the plaintrffs on the expiry of the period of lease.
( 7 ) ON 23rd April, 1985 the said defendant gave notice in writing to the plaintiff under section 13 (l) (j) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the said Act), upon expiry of the period of the said original lease dated 6th March, 1969, they will quit the premises in question. The defendant did not comply with the agreement dated 12th december, 1979 and a notice to quit issued to the plaintiffs on 23rd April, 1985. On default, the plaintiffs instituted a suit in the Alipore Court against the defendant for eviction and delivering up of the vacant possession of the said suit premises.
( 8 ) THE said suit which was filed in Alipore Court was transferred before this Court under clause 13 of the Letters Patent. After the suit was transferred, an application was filed for appointment of a Receiver and further a summons was taken out in the said suit under Chapter XIIIA of the Rules of the Original Side of this Court for eviction of the said defendant. On such application the suit was decreed on 5"1 September, 1985. The said decree was served upon the Refugee Handicrafts who were in possession at that point of time under the said defendant. On 25th September, 1985 plaintiffs made an application for execution of the decree dated 5th September, 1985.
( 9 ) REFUGEE Handicrafts on 27th September, 1985 filed an application inter alia praying for an order that the Refugee Handicrafts be added as a party defendant to defend the suit and further for setting aside the said decree. Alternatively, leave was also prayed by the Refugee Handicrafts to file a separate suit challenging the decree dated 5th September, 1985.
( 10 ) THE said application was filed on the allegations that Gobindalal entered into an agreement with the Refugee Handicrafts whereby the said Gobindalal agreed to let out the suit premises and the Refugee Handicrafts agreed to accept the said suit premises on lease on certain terms and conditions. It is the case of the Refugee Handicrafts that on 6th March, 1969 Gobindalal with the consent and knowledge of the Receiver entered into two registered subleases for a period of 16 years commencing from 1st July, 1969.
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