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2011 Supreme(Cal) 1510
High Court Of Calcutta
S.K. Mukherjee, J.
Shrimati Gita Majumdar : Appellant
Versus
Ajoy Kumar Ghosh : Respondent
S. A. No. 54 of 2005 (C. A. N. 9684 of 2011)
Decided On : Dec 13, 2011
Hiranmay Bhattacharya, Tanmoy Mukherjee, Bidyut Kumar Banerjee, Shila Sarkar
A co-owner can issue a valid notice to quit under Section 13(6) of the West Bengal Premises Tenancy Act, 1956, and maintain a suit for eviction against the tenant, even if the other co-owners do not join.
Headnote:
NOTICE TO QUIT - DEFECTIVE NOTICE - SECTION 13(6), WEST BENGAL PREMISES TENANCY ACT, 1956 - Whether notice to quit was valid despite errors in landlord's name and service on tenant's husband? Whether suit for eviction by one co-owner was maintainable? Held: Notice was valid despite errors and suit was maintainable by one co-owner.
Fact of the Case:
Plaintiff-respondent filed a suit for eviction on grounds of default and reasonable requirement. Both lower courts found that the plaintiff reasonably required the suit premises for his own use and occupation. The defendant-appellant challenged the maintainability of the suit due to defects in the notice to quit issued under Section 13(6) of the West Bengal Premises Tenancy Act, 1956.
Finding of the Court:
The court held that the notice to quit was valid despite the error in the landlord's name and the service on the tenant's husband. The court also held that a co-owner was competent to issue a notice under Section 13(6) alone and to maintain a suit for ejectment against the tenant.
Issues: 1) Whether the notice to quit under Section 13(6) of the said Act of 1956 was legal and valid inasmuch as it was issued on behalf of Bijoy Kumar Ghosh in stead of the landlord Ajoy Kumar Ghosh? 2) Whether the notice to suit is defective because it was issued not only against the defendant no. 1, but also against the husband of the defendant no. 1? 3) Whether suit for eviction by one of the co-owner is maintainable in the absence of other co-owners?
Ratio Decidendi: 1) The court held that the notice to quit was valid despite the error in the landlord's name because the tenant was not misled and understood that she was to vacate the entire premises. 2) The court held that the notice to quit was not defective because it was served on the tenant's husband, who was residing with the tenant, even though there was no privity of contract between the plaintiff and the husband. 3) The court held that a co-owner was competent to issue a notice under Section 13(6) alone and to maintain a suit for ejectment against the tenant, relying on the Supreme Court decisions in Sri Ram Pasricha Versus Jagannath and Anupama Sen Gupta Versus Deb Kumar Sen Sarma.
Final Decision: The court dismissed the appeal and upheld the judgment and decree of the lower courts. The court also granted the tenant time to find alternative accommodation and ordered her to file an undertaking to vacate the suit premises by December 31, 2012.
SUBHRO KAMAL MUKHERJEE, J.
1. ALTHOUGH, the matter is appearing under the heading ?for orders?, by consent of Mr. Hiranmay Bhattacharya, learned advocate appearing for the appellant, and Mr. Bidyut Kumar Banerjee, learned senior advocate appearing for the plaintiffrespondent no. 1, I take up this matter for hearing for final disposal.
2. THIS appeal arises out of a suit for eviction, inter alia, on the grounds for default and reasonable requirement. Both the courts below, concurrently, found that the plaintiff reasonably required the suit premises for his own use and occupation and for use and occupation by the members of his family. Principally, the appeal was argued before the lower appellate court as also before this Court on the ground that the suit was not maintainable due to defect in the notice to suit. Notice to suit as contemplated under Section 13(6) of the West Bengal Premises Tenancy Act, 1956, (herein after referred to as the said Act of 1956) was issued by the learned advocate for the plaintiff-respondent no. 1. The name of the plaintiff-respondent no. 1 is Ajoy Kumar Ghosh, but erroneously the name was mentioned in the notice as Bijoy Kumar Ghosh. The defendant no. 1 is an admitted tenant in the suit premises, but notice was, also, served on her husband, who is admittedly residing in the suit premises along with the defendant no. 1. It was alleged that the notice to suit and subsequent filing of the suit by one of the co-owner in the absence of the other co-owners was not maintainable.
Therefore, the following substantial questions of law are formulated for disposal of this appeal :
1) Whether the notice to suit under Section 13(6) of the said Act of 1956 was legal and valid inasmuch as it was issued on behalf of Bijoy Kumar Ghosh in stead of the landlord Ajoy Kumar Ghosh? 2) Whether the notice to suit is defective because it was issued not only against the defendant no. 1, but also against the husband of the defendant no. 1? 3) Whether suit for eviction by one of the co-owner is maintainable in the absence of other co-owners?
3. NOTICE to quit is a document of a technical nature. Still, lame and inaccurate notices should be rationally interpreted so as to make them sensible where the recipients cannot have been misled as to the intention of the giver. There was no inaccuracy in the notice to quit as to the description of premises or the name of the tenant or the date of the expiry of the notice. The basic question is what the notice would convey to a tenant, who is presumably conversant with all the relevant facts and circumstances. The validity of the notice to quit is not to be determined by what it would convey to a stranger ignorant of all the relevant facts and circumstances concerning tenancy in question. Inaccuracies in notice will not render the notice invalid unless the inaccuracies have been fraudulently inserted.
4. THE tenant is occupying the tenanted premises when the notice to suit was served on her and her husband; the tenant understood that she was to vacate the entire premises. THE notice is good notwithstanding that notice was, also, issued to the husband of the tenant.
The notice was issued by the learned lawyer on behalf of the landlord. In the notice, the name of the landlord was wrongly described. It is not alleged that the defendant no. 1 had any tenancy under any Bijoy Kumar Ghosh. The notice was duly served. Onus lies upon the tenant to prove that the tenant was misled. I do not think that the notice was invalid because, in the notice, name of the plaintiff was wrongly stated as Bijoy Kumr Ghosh in stead of Ajoy Kumar Ghosh. Notice to suit was, also, issued to the husband of the defendant no. 1. It was not necessary as there was no privity of contract between the plaintiff and the husband of the defendant no. 1. However, in my view, this may be superfluous, but for that the notice to suit cannot be declared invalid. No prejudice is caused to the defendant no. 1 in issuing the noti
