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2012 Supreme(Cal) 788
HIGH COURT OF CALCUTTA
Prasenjit Mandal, J.
Kamakhya Singh Deo - Plaintiff
Versus
Modula India – Defendant
ORDINARY ORIGINAL CIVIL JURISDICTION
Decided On: August 24, 2012
Mr. Surajit Nath Mitra, Moloy Ghosh and M. M. Chandra, for the Plaintiff
Mr. Arindam Sinha, Soumya Roy Chowdhury and Sanjiv Kumar Trivedi, for the Defendant
A written agreement between the landlord and the tenant, whereby the tenant agrees to vacate the premises on a specified date, can be a valid notice to quit under Section 13(1)(j) of the West Bengal Premises Tenancy Act, 1956.
Headnote:
TENANCY - EJECTMENT - NOTICE TO QUIT - VALIDITY - WEST BENGAL PREMISES TENANCY ACT, 1956 - SECTION 13(1)(J) - SECTION 19.
Fact of the Case:
The plaintiff let out a flat to the defendant for one month from January 1, 1978, to January 31, 1978, as per a written agreement. The defendant agreed to vacate the premises on February 1, 1978. However, the defendant failed to vacate the premises and continued to occupy it as a trespasser. The plaintiff filed a suit for ejectment, recovery of possession, damages, and mesne profits.
Finding of the Court:
The court held that the written agreement between the parties was a valid notice to quit under Section 13(1)(j) of the West Bengal Premises Tenancy Act, 1956. The court also held that the defendant was not entitled to any notice to quit under Section 13(6) of the Act as he had already given notice to quit by the written agreement. The court further held that the plaintiff was entitled to damages for the period from February 1, 1978, to July 31, 1979, at the rate of Rs. 75/- per day and mesne profits from the date of institution of the suit till the date of delivery of possession of the premises in favor of the plaintiff.
Issues: 1. Whether the written agreement between the parties was a valid notice to quit under Section 13(1)(j) of the West Bengal Premises Tenancy Act, 1956? 2. Whether the defendant was entitled to any notice to quit under Section 13(6) of the Act? 3. Whether the plaintiff was entitled to damages and mesne profits?
Ratio Decidendi: 1. A written agreement between the landlord and the tenant, whereby the tenant agrees to vacate the premises on a specified date, can be a valid notice to quit under Section 13(1)(j) of the West Bengal Premises Tenancy Act, 1956. 2. Where the tenant has already given notice to quit by a written agreement, he is not entitled to any further notice to quit under Section 13(6) of the Act. 3. The landlord is entitled to damages for the period from the date of expiry of the notice to quit till the date of delivery of possession of the premises, and mesne profits from the date of institution of the suit till the date of delivery of possession of the premises.
Final Decision: The suit was decreed in favor of the plaintiff for ejectment, recovery of possession, damages, and mesne profits.
This is a suit for ejectment, recovery of possession, a decree of money of Rs. 40,950/- as damages, mesne profits and other reliefs.
2. The plaint case, in short, is that the plaintiff is the owner of the premises in suit as described in the Annexure 'A' to the plaint and henceforth shall be described as the premises in suit being the Flat No.3 situated on the ground floor of the premises No. 3-E, Camac Street, Kolkata-16. On or about December 28, 1977, the plaintiff, at the request of the defendant in writing, agreed to allow the defendant to immediately occupy the premises in suit till January 31, 1978 as a tenant on payment of Rs.1,000/- as rent. By the said letter of request, the defendant also gave a notice to the plaintiff to quit and vacate the premises in suit on February 1, 1978. The plaintiff accepted the said letter and notice dated December 28, 1977. Accordingly, the defendant got possession of the premises in suit and paid a sum of Rs.1,000/- in cash to the plaintiff. But the defendant failed and neglected to deliver the vacant possession of the premises in suit in accordance with the letter and notice dated December 28, 1977. Thus, since February 1978, the defendant has been wrongfully occupying the said premises in suit as a trespasser.
3. The plaintiff was out of India and the defendant forwarded 4 cheques of Rs.1,000/- each to the plaintiff describing the money on account of rent for the months of March, 1978 to June, 1978 and the plaintiff did not en cash the said cheques. Thereafter, the defendant sent Rs.1,000/- as rent in or about September/October, 1978 for one month and the plaintiff refused to accept the said amount.
4. In spite of the letter and notice dated December 28, 1977, the defendant did not deliver vacant possession of the premises in suit in favour of the plaintiff. So, the plaintiff has filed the suit for the reliefs already stated.
5. The defendant is contesting the said suit by filing a written statement denying the material allegations contained in the plaint. It is pertinent to mention here that the defence against delivery of possession had been struck out by allowing the application under Section 17(3) of the West Bengal Premises Tenancy Act, 1956. Under the aforesaid circumstances, the following issues have been framed for decision in the suit.
1. Does this Hon'ble Court have jurisdiction to receive, try and determine the suit?
2. Is the written request of the defendant dated December 28, 1977, also a notice to the plaintiff to quit and vacate the said flat on February 1, 1978 as alleged in paragraph 4 of the plaint?
3. Is the plaintiff entitled to get a decree for delivery of possession?
4. Is the plaintiff entitled to damages and mesne profits or an enquiry thereto as alleged in paragraph nos. 10, 11 & 12 of the plaint?
5. What other relief, if any, is the plaintiff entitled to ?
Decision with reasons
6. All the issues are taken up together for the sake of brevity and avoiding repetition.
7. As per evidence of the P.W.1 and the document marked *Ext.A', the defendant got the possession of the premises in suit in the last part of the December, 1977 and at the time of getting the possession, a letter dated December 28, 1977 was written and the said letter is the main factor in deciding the suit. Accordingly, the said letter (Ext.A) is quoted below:
MODULA m INDIA
PDG/MI/1.2.11/12-77/ December 28, 1977.
Mr. Kamak Singhdeo
3 Camac Street
Calcutta 700 016.
Dear Sir, We shall occupy the Ground Floor flat on your premises immediately and shall pay a rental of Rs. 1000/- till 31st January 1978. We shall vacate the flat on the 1st of February 1978.
Thanking you,
Yours faithfully,
For MODULA INDIA
SD/-
PRABIR RANJAN DASGUPTA
PARTNER
KT/PRD
8. Thus, the letter clearly indicates that the defendant would occupy the premises in suit till January 31, 1978 and would pay a sum of Rs.1,000/- only as rent to the plaintiff. The defendant also gave an undertaking that the premises in
