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2010 Supreme(Cal) 1002
HIGH COURT OF CALCUTTA
JYOTIRMAY BHATTACHARYA, J.
Sandhya Das - Appellant
Versus
Manik Banik - Respondent
CO. No. 1607 of 2009 with C.A.N. No. 981 of 2010 with C.P.A.N. No. 718 of 2009
Decided on : Aug 18, 2010
Ashok Banerjee, Aniruddha Chatterjee, Sanjib Chakravorty, P.K. Das, Amal Kumar Sen, Arjun Mukhopadhyay, Jayanta Basu, Supriyo Chattopadhyay
Tenancy right is a heritable right that cannot be extinguished due to non-payment of rent without a decree of eviction.
Headnote:
TENANCY RIGHT - WEST BENGAL PREMISES TENANCY ACT, 1956 - SECTION 6 - TENANCY RIGHT IS A HERITABLE RIGHT THAT CANNOT BE EXTINGUISHED DUE TO NON-PAYMENT OF RENT WITHOUT A DECREE OF EVICTION. HOWEVER, IN THE ABSENCE OF ANY EVIDENCE OF PAYMENT OF RENT SINCE 2004 OR POSSESSION OF THE PROPERTY, THE TENANCY RIGHT MAY BE DOUBTFUL.
Fact of the Case:
The plaintiff filed a suit for declaration of their tenancy right and permanent injunction against the defendant from disturbing their possession in the suit property. The plaintiff claimed that their predecessor-in-interest was inducted as a tenant by the trustee of the Gita Bhawan Trust in 1960 and that they inherited the tenancy right by succession. The defendant refused to accept rent from the plaintiff after the co-tenant expressed her intention to discontinue the tenancy. The plaintiff filed an application for ad-interim injunction, which was rejected by the trial court and the appeal court.
Finding of the Court:
The court held that the plaintiff had made out a prima facie case in support of their claim for tenancy right but that their possession as on the date of filing of the suit was doubtful, as no material showing their possession therein as on the date of filing of the suit had been produced. The court also noted that the plaintiff had admitted in their contempt petition that the entire building had been demolished completely on 26th May, 2009.
Issues: 1. Whether the plaintiff had made out a prima facie case for grant of ad-interim injunction? 2. Whether the plaintiff's tenancy right had been extinguished due to non-payment of rent?
Ratio Decidendi: 1. A prima facie case for grant of ad-interim injunction requires the plaintiff to show that they have a triable issue, that the balance of convenience and inconvenience is in their favour, and that the loss which the plaintiff may suffer in case of refusal to grant ad-interim injunction cannot be compensated by monetary value. 2. Tenancy right is a heritable right under the West Bengal Premises Tenancy Act, 1956 and cannot be extinguished on the death of the original tenant. However, tenancy right can be extinguished by surrender of tenancy by the tenants or by eviction of the tenants by following the due process of law.
Final Decision: The court vacated the interim order of status quo, holding that it had become redundant as the plaintiffs were not in actual possession of the property and that their actual possession may be restored ultimately after reconstruction of the said building provided they can establish their tenancy right in the suit premises.
1. THIS application under Article 227 of the Constitution of India is directed against an order dated 29th April, 2009 passed by the learned Additional District Judge, Barrackpore, in Misc. Appeal No. 29 of 2009 by which the petitioner's prayer for ad-interim injunction during the pendency of the said appeal, was rejected by the learned Appeal Court. The plaintiff/appellant, who is the petitioner herein was aggrieved by the said order. Hence the plaintiff/appellant has come before this Court with this application under Article 227 of the Constitution of India.
2. HEARD Mr. Banerjee, senior learned counsel, appearing for the petitioner and Mr. Das, learned senior counsel, appearing for the opposite parties. Considered the materials on record including the order impugned. Let me now consider the merit of this revisional application in the facts of the instant case.
The plaintiff petitioner filed a suit for declaration of their tenancy right in respect of the suit property and for permanent injunction for restraining the defendant/opposite party No. 1 from disturbing their possession in the suit property. The plaintiff claims that the predecessor-in-interest of the plaintiff, namely, Promoto Bhushan Ray was inducted as a tenant in respect of the suit property by the trustee of the Gita Bhawan Trust, sometime in the year of 1960. The said tenant started carrying on his business in the said premises by obtaining necessary licence from the concerned authority. The plaintiff further claims that the said Promoto Nath Ray died on 5th November 1973 leaving his two daughters, namely, Gita Rani Chowdhury and Mira Rani Chowdhury who became the tenants-in-common in the suit premises by inheritance. The said two daughters of the original tenant paid rent at the enhanced rate of Rs.75/- per month to their landlord upto December 2003. Such rent was collected by the authorized agent of the landlord, namely, the defendant No. 1 herein who used to receive such rent from the tenants by granting the rent receipts therefor. It was further stated therein that since January 2004, the landlord started refusing to accept the rent from the mother of the plaintiff on the pretext that since the co-tenant Gita Rani Chowdhury expressed her intention to discontinue the said tenancy, they would not accept the rent from the other co-tenant. As a matter of fact, due to non-cooperation of one of such tenants, namely Gita Rani Chowdhury, the ration shop business had to be discontinued therein. Subsequently Gita Rani Chowdhury died sometime in 2004 and the mother of the plaintiff namely, Mira Rani Das also died on 17th January, 2009. On the death of the petitioner's mother the petitioner became the tenant in respect of the premises. Since the defendant started disturbing the possession of the plaintiffs in the suit property with the help of the local antisocial on and from 16th April, 2009, the instant suit was filed for declaration of their right of tenancy in the suit property and for injunction.
3. IMMEDIATELY after filing of the said suit the plaintiff filed an application under Order 39 Rules 1 and 2 of the Civil Procedure Code inter alia praying for temporary injunction for restraining the defendant from disturbing their peaceful possession in the suit property till the disposal of the suit. Ad interim prayer claiming identical relief by way of injunction was also prayed for by the plaintiff in the said application.
4. IN course of hearing of the said application at the ad interim stage, the plaintiff produced certain documents such as
(i) rent receipt issued by the landlord in favour of Gita Rani Chowdhury and Mira Rani Das on 15th December, 2000,
(ii) another rent receipt in the name of two those tenants issued by the landlord on 13th November, 2003,
(iii) trade licence issued by Dum Dum Municipality on 18th August, 2004 and
(iv) a letter of authority issued by the trustees of the Gita Bhawan Trust authorizing the defendant No. 1 to collect the rent
