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Calcutta High Court
BIJAYESH MUKHERJI
Binani Properties Private Ltd. - Appellant
Versus
M.Gulamaji Abdul Hossain - Respondent
Suit No. 800 of 1959
Decided On : 08/10/1966
The notice of suit under Section 13(6) of the Premises Tenancy Act, 1956, is a valid notice of suit. The notice is a condition precedent and a cause of action. The subletting by the lessee after 31 March 1956, the date of commencement of the Premises Tenancy Act 1956, requires the lessor's fresh consent in writing. The permanent mezzanine floor is a construction contrary to Section 108(p) of the Transfer of Property Act. The plaintiff, "Binani", is a property company. "Binani's" requirement for rebuilding is reasonably required. The sale of "81" by the previous owner Rakhal Das to the plaintiff "Binani" on 25 August 1958, without payment of rent to either, constitutes a default.
Fact of the Case:
The plaintiff, "Binani", purchased property "81" from Rakhal Das Pramanick on 25 August 1958. The first defendant, M. Gulamali Abdul Hossain, was the tenant on a rent of Rs. 2,000 per month. The remaining defendants were the sub-tenants of the first defendant. "Binani" served a notice on the first defendant on 18 March 1959, determining the tenancy with effect from the following April's end, mentioning four grounds of eviction: (1) default in payment of rent from August 25, 1958, to March 18, 1959, (2) reasonable requirement of the landlord, (3) sub-letting without the landlord's consent, and (4) construction of a permanent structure. The first defendant failed to quit the premises, leading to the filing of the instant suit.
Finding of the Court:
1. The notice of suit under Section 13(6) of the Premises Tenancy Act, 1956, is a valid notice of suit. 2. The notice is a condition precedent and a cause of action. 3. The subletting by the lessee after 31 March 1956, the date of commencement of the Premises Tenancy Act 1956, requires the lessor's fresh consent in writing. 4. The permanent mezzanine floor is a construction contrary to Section 108(p) of the Transfer of Property Act. 5. The plaintiff, "Binani", is a property company. 6. "Binani's" requirement for rebuilding is reasonably required. 7. The sale of "81" by the previous owner Rakhal Das to the plaintiff "Binani" on 25 August 1958, without payment of rent to either, constitutes a default.
Issues: 1. Whether the notice of suit under Section 13(6) of the Premises Tenancy Act, 1956, is a valid notice of suit. 2. Whether the notice is a condition precedent and a cause of action. 3. Whether the subletting by the lessee after 31 March 1956, the date of commencement of the Premises Tenancy Act 1956, requires the lessor's fresh consent in writing. 4. Whether the permanent mezzanine floor is a construction contrary to Section 108(p) of the Transfer of Property Act. 5. Whether the plaintiff, "Binani", is a property company. 6. Whether "Binani's" requirement for rebuilding is reasonably required. 7. Whether the sale of "81" by the previous owner Rakhal Das to the plaintiff "Binani" on 25 August 1958, without payment of rent to either, constitutes a default.
Ratio Decidendi: 1. The notice of suit under Section 13(6) of the Premises Tenancy Act, 1956, is a valid notice of suit because it complies with the requirements of the section and is not rendered invalid by the absence of a specific statement that a suit would be filed. 2. The notice is a condition precedent and a cause of action because it is a mandatory requirement under Section 13(6) and is necessary to confer jurisdiction on the court to entertain the suit. 3. The subletting by the lessee after 31 March 1956, the date of commencement of the Premises Tenancy Act 1956, requires the lessor's fresh consent in writing because Section 14(1)(a) of the Act requires such consent for subletting after the commencement of the Act. 4. The permanent mezzanine floor is a construction contrary to Section 108(p) of the Transfer of Property Act because it is a permanent structure erected without the landlord's consent. 5. The plaintiff, "Binani", is a property company because its object, as stated in its memorandum of association, is to buy and make houses in Calcutta. 6. "Binani's" requirement for rebuilding is reasonably required because the condition of the building, its situation, and the possibility of its being put to a more profitable use after reconstruction satisfy the test of reasonable requirement. 7. The sale of "81" by the previous owner Rakhal Das to the plaintiff "Binani" on 25 August 1958, without payment of rent to either, constitutes a default because the first defendant, as the tenant, was obligated to pay rent to the landlord and its failure to do so constitutes a default.
Final Decision: The suit for eviction is decreed in favor of the plaintiff, "Binani". The first defendant and its sub-tenants are ordered to vacate the premises "81" within one month from the date of the decree.
I. The plaintiff, Binani Properties Private Ltd. (shortened hereafter into "Binani") became the landlord by purchase on August 25, 1958, from the then owner, Rakhal Das Pramanick, of 81 Netaji Subhas Road, Calcutta, (for short, "81" hereafter) of which the first defendant, M. Gulamali Abdul Hossain, a proprietary firm, was the tenant on a rent of Rs. 2,000 a month. The remaining defendants, 21 strong, were the sub-tenants of the first defendant.
By a notice dated March 18, 1959, "Binani's" solicitor, Shri D. K. Mitra, determined the tenancy of the first defendant with effect from the following April's end, mentioning therein four grounds of eviction: (1) default in payment of rent from August 25, 1958, to March 18, 1959, (2) reasonable requirement of the landlord, (3) sub-letting without the landlord's consent, and (4) construction of a permanent structure, the very grounds listed in Clauses (i), (f), (a) and (b) respectively of Section (13) (l), Premises Tenancy Act, 12 of 1956. In case the tenant would fail to quit, as demanded, the solicitor, the giver of the notice, threatened -
"........... my client will take such steps as it may be advised for your eviction holding you responsible for all costs and consequences. My client will charge mesne profits at the rate of Rs. 150 a day from the expiry of your tenancy till possession is recovered.
II. On an all out attempt to strike down, on very various grounds, such notice as not a notice of suit within the meaning of Section 13 (6) of the Premises Tenancy Act, it is held -
1 Section 13 (6), it is true, refers to suit or proceeding. A proceeding (as distinguished from a suit) is no doubt there under Chapter 7 of the Presidency Small Cause Courts Act (15,of 1882), and that too for recovery of possession of immoveable property. But such a provision is "dead", because of Section 20, Premises Tenancy Act, as amended by Section 3, City Civil Court and West Bengal Premises Tenancy (Am.) Act, 27 of 1957, come into force on January 13, 1958, by virtue of which an action in ejectment as the present one can lie in the High Court and High Court alone. Again, 'suit or proceeding" in Section 13 (6) means either proceeding in the shape of a suit, if suit" and "proceeding" are treated as analogous, or suit only, "or proceeding" then being rejected as mere surplusage. Be it one or the other, no election there can be; for the very concept of election connotes that the suing party (as Binani' is) has more than one option out of which it has to elect. But Binani's is Hobson's choice-suit or nothing, leaving little to election. In all circumstances here, a suit indeed, nothing short of a suit, and that too in the High Court, is available to "Binani" for the relief it is after. The notice cannot, therefore, go down as bad, simply because it does not state what exactly "Binani" would do, institute a suit or initiate a proceeding.
[1. Stroud's Judicial Dictionary, 3rd edn., p. 2309, 2. Dictionary of English Law by Earl Jowitt, p. 48, 3. Nalinakhya Bysack v. Shyam Sunder Haldar, AIR 1953 SC 148, 4. Commissioner for Special Purposes of Income-Tax v. Pemsel, (1891)AC 531, 5. Maxwell's Interpretation of Statutes. 10th edn. p. 321, 6. R. v. East Ardsley (Inhabitants), (1850) 14 QB 793, at p. 801, 7. Fisher v. Val de Travers Asphalte Co., (1876) 1 CPD 259, (serials 6 and 7 cited by Craies on Statute Law, 6th edn., p. 106), 8. Babulal Dhandhania v. Gauttam and Co., AIR 1950 Cal 391, 9. Meghraj Sampatlall v. Raghunath and Sons, AIR 1955 Cal 278, 10. Suraya Properties (Pvt.) Ltd. v. Bimalendu Nath Sarkar, AIR 1964 Cal. 1: 67 Cal WN 977, Referred to.]
2. Say, "suit" is distinct from "proceeding". Still the notice here is too good a compliance with Section 13 (6), which does not say : unless the landlord has given to the tenant one month's notice expiring with a month of the tenancy, and specifying whether he will file a suit or a proceeding.' It says instead: "unless he has given to the tenant one month's n
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