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1994 Supreme(Cal) 266
High Court of Calcutta
B.M. Mitra, J.
Hari Narayan Shaw – Appellant
Versus
Sunil Kumar Ghosh – Respondent
Decided On : Aug 25, 1994
Asoke Kumar Sen Gupta, Bhaskar Bhattacharya, Jiban Ratan Chatterjee, Subrata Mukherjee, Tapan Kumar Roy
A notice under Section 13 (6) of the West Bengal Premises Tenancy Act is a foundation of a suit for eviction and if the notice is otherwise bad in law, the super structure will be denuded of the basis of foundation.
Headnote:
EVICTION SUIT - NOTICE TO QUIT - TENANT - WEST BENGAL PREMISES TENANCY ACT, 1956 - SECTION 13 (6) - INTERPRETATION - VALIDITY OF NOTICE - SUFFICIENCY OF NOTICE - RELATIONSHIP BETWEEN LANDLORD AND TENANT - FINDING OF FACT - PERVERSE FINDING - SUBSTANTIAL QUESTION OF LAW - SECTION 100 OF THE CODE OF CIVIL PROCEDURE.
Fact of the Case:
Plaintiff filed a suit for eviction of the defendants from the suit premises, alleging that Defendant No. 2 was the tenant and that a notice under Section 13 (6) of the West Bengal Premises Tenancy Act had been served on both the defendants. The Trial Court and the Appellate Court decreed the suit in favor of the plaintiff.
Finding of the Court:
The High Court found that the plaintiff's evidence was inconsistent and that the finding of the final Court of fact that Defendant No. 2 was the real tenant was contrary to the evidence on record and amounted to a perverse finding. The Court also held that the notice under Section 13 (6) of the Act was defective and could not be the basis for a decree of eviction.
Issues: 1. Whether the notice under Section 13 (6) of the West Bengal Premises Tenancy Act was valid and sufficient? 2. Whether the finding of the final Court of fact that Defendant No. 2 was the real tenant was perverse? 3. Whether a decree of eviction could be passed on the basis of the impugned notice?
Ratio Decidendi: 1. A notice under Section 13 (6) of the West Bengal Premises Tenancy Act must be served on the tenant in order to be valid. 2. A finding of fact by the final Court of fact can be set aside by the High Court if it is perverse, i.e., if it is arrived at by conscious non-application of law or because of a blind-folded approach taken to a given set of facts. 3. A decree of eviction cannot be passed under the provisions of the West Bengal Premises Tenancy Act unless it is preceded by and/or founded upon a valid notice to quit on being served on the tenants in accordance with the letter and spirit of Section 13 (6) of the Act.
Final Decision: The High Court set aside the impugned judgment and decrees of both the Courts below and allowed the Second Appeal. There was no order as to costs.
1. THE present Appeal is directed against a Judgment of affirmance dated 9th November, 1989 passed by the additional District Judge, 4th Court, Burdwan in Title Appeal No. 231 of 1988 confirming the judgment and decree passed by the 2nd Court of munsif at Burdwan dated 29th November, 1988 in Title Suit No. 247 of 1983. The defendant-tenants are appellants before this Court. The plaintiff respondent filed a connected suit in a capacity as the owner of the suit property and the said suit is for eviction of the defendants therefore. Two defendants have been impleaded in the said suit and in paragraph 4 of the plaint the defendant No. 2 has been specifically described as a tenant under the plaintiff. A notice under Section 13 (6) of the West Bengal premises Tenancy Act has been issued against both the defendants. Section 13 (6) of the West Bengal Premises Tenancy Act contemplates that the said notice has to be given to the tenant by laying stress on the tenant. The tenant has been defined in Section 2 (h) of the said Act which means any person by whom or on whose account or behalf the rent of any premises is or but for a special contract would be payable. The rental of the premises is at the rate of Rs. 30/- per month payable according to the English Calendar month. The further version of the plaintiff in the plaint is that the Defendant No. 1 is a son off the Defendant No. 2 and when the defendant No. l was the minor, the Defendant No. 2 approached the plaintiff for letting out the suit premises and as such the said defendant was inducted as a tenant though the receipts were used to be granted in favour of the Defendant No. 1 at the request of the Defendant No. 2.
2. THE suit was contested and on filing of pleadings there are as many as ten issues were framed by the Trial Court. The suit is filed on the ground of default and reasonable requirement. It is significant to mention in this context that apart from framing of the issues on the merit of the case relating to the grounds specified under Section 13 (1) of the West Bengal Tenancy Act, three issues framed namely, (a) about the maintainability of the suit, (b) whether the defendants are the tenants: (c) if the notice is legal and valid and whether it has been served on the defendants. The Trial Court on a contested hearing of the suit decreed the same as a result of which plaintiff became entitled to a decree for recovery of khas possession of the suit premises on eviction of the defendants and also for other ancillary reliefs. Against that an appeal being Title Appeal No. 231 of 1988 was preferred and the same on being transferred was heard and disposed of on contest by the 4th Court of Additional District Judge at burdwan and the Appeal Court dismissed the said appeal. At the penultimate portion of the concluding part of the judgment under appeal, the appeal Court has saliently observed that excepting the point urged in the appeal, no other point has been urged before the Appeal Court: In the present Memo of Second Appeal a ground was taken about due service of the notice.
3. MR. Bhaskar Bhattacharyya, the learned Advocate appearing on behalf of the appellants, has drawn the attention of this Court to the relevant recitals in the pleadings, namely, paragraph 4 of the plaint and according to him as per plaint case the plaintiff has asserted Defendant no. 2 as the tenant under the plaintiff. Nevertheless, a notice which is supposed to be the foundation of a suit for eviction has been served on both the defendants and the same continues to remain as the foundation of the suit. Mr. Bhattacharyya has further drawn the attention if this court from the evidence of P. W. 1 who in his examination-in-chief has stated that though Monilal Shaw took the tenancy of the suit premises yet the said P. W. 1 used to grant receipt in favour of his son Harinarayan Shaw at the request of Monilal. His definite case in examination-in-chief was that monilal took the tenancy of the suit premis
