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2014 Supreme(Cal) 195
High Court of Judicature at Calcutta
ASHIM KUMAR BANERJEE & ARIJIT BANERJEE, JJ.
Punjab National Bank & Another
Versus
Kamini Kapoor & Another
APD Nos. 282 of 2013 & 1 of 2014, CS Nos. 39 of 2012 & GA No. 181 of 2014 (Original Side)
Decided on: 22-04-2014
For the Appearing Parties:Joydip Kar, Siddhartha Banerjee, Sandip Bose, Jishnu Saha, Sulagna Mukharjee, Asish Mukharjee, Abhrajit Mitra, Jishnu Chowdhury, Noelle Banerjee, Amitabh Ray, Advocates.
A co-lessor can maintain an eviction suit against a sub-lessee without joining the other co-lessor, and the sub-lessee is estopped from questioning the co-lessor's title to the suit premises if the sub-lessee has been in possession of the premises for a long time and has paid rent to the co-lessor.
Headnote:
LANDLORD-TENANT - EVICTION SUIT - ESTOPPEL - NOTICE TO QUIT - MAINTAINABILITY OF SUIT - TRANSFER OF PROPERTY ACT, 1882, SECTION 106 - EVIDENCE ACT, 1872, SECTION 116:
Fact of the Case:
Kamini Kapoor, the lessor, filed an eviction suit against Punjab National Bank, the sub-lessee, for possession of the suit premises after the expiry of the sub-lease. The Bank continued to occupy the premises and claimed that Kamini did not have the right to evict them since her lease had also expired. Kavita Vyappar Pvt. Ltd., the new owner of the suit premises, intervened in the proceedings, challenging the maintainability of the suit and the validity of the notice to quit.
Finding of the Court:
The Court held that Kamini was estopped from questioning the Bank's title to the suit premises under Section 116 of the Evidence Act since the Bank had been in possession of the premises for a long time and had paid rent to Kamini. The Court also held that the notice to quit was valid and that Kamini, as a co-lessor, could maintain the eviction suit even without joining her co-lessor.
Issues: 1. Whether the Bank was estopped from questioning Kamini's title to the suit premises? 2. Whether the notice to quit was valid? 3. Whether Kamini, as a co-lessor, could maintain the eviction suit without joining her co-lessor? 4. Whether Kavita Vyappar Pvt. Ltd. had the right to intervene in the proceedings and challenge the maintainability of the suit.
Ratio Decidendi: 1. The Court relied on the principle of estoppel under Section 116 of the Evidence Act to hold that the Bank was estopped from questioning Kamini's title to the suit premises since the Bank had been in possession of the premises for a long time and had paid rent to Kamini. 2. The Court held that the notice to quit was valid as it sufficiently identified the portion of the premises being claimed by Kamini. 3. The Court relied on the Supreme Court decision in Mahindar Prasad Jain to hold that one of the co-owners can maintain an eviction suit in law and non-joinder of the other co-owners is not fatal to the action. 4. The Court held that Kavita Vyappar Pvt. Ltd., as a non-party to the proceedings, could not intervene and challenge the maintainability of the suit unless it could show that its valuable rights were jeopardized by the order of the Trial Court.
Final Decision: The Court dismissed both appeals filed by the Bank and Kavita Vyappar Pvt. Ltd. The Bank's appeal was dismissed on the merits, while Kavita's appeal was dismissed for lack of maintainability.
Arijit Banerjee, J.
1. These two appeals arise out of the same judgment and decree dated 23rd April, 2013 passed by the Hon’ble First Court in CS No. 39 of 2012 (Kamini Kapoor -vs.- Punjab National Bank). Accordingly, these two appeals have been heard analogously and are being disposed of by this common judgment.
Re: APD 282 of 2013 (Punjab National Bank -vs.- Kamini Kapoor)
2. Kamini Kapoor (in short Kamini) and her husband, since deceased were lessees in respect of total of approximately 1510.40 sq. ft. area on the ground floor of the premises No. 8, Ejra St. Calcutta-700001 (hereinafter referred to as the “Suit Premises”). Under the lease deeds they had the power to sublet. Accordingly, they executed deeds of sub-lease dated 1st February, 1984 in respect of the suit premises in favour of Punjab National Bank (in short the Bank). The sub-leases were for a period of 19 years or so and were to expire on 13th November, 2002. The leases in favour of Kamini and her husband were to expire also on 13th November, 2002.
3. One Kavita Vyappar Pvt. Ltd. purchased the suit premises on or about 31st January, 2008 from the erstwhile owners.
4. Kavita is the appellant in the second appeal with which we will deal separately in this judgment.
5. Although the lease in favour Kamini came to an end in November 2002 she continued to be in possession of the suit premises. Similarly, although the sub-leases in favour of the Bank expired in November, 2002, the Bank continued to occupy the suit premises. The Bank paid monthly rent to Kamini last in March 2008 in the sum of Rs. 21,849/-.
6. Since Kavita purchased the suit premises and became the owner thereof, the Bank entered into negotiation with Kavita and came to an arrangement under which the Bank continued to occupy the property ostensibly under Kavita. This new arrangement was made on or about 1st August, 2010. The Bank’s justification was that the head lease in favour of Kamini having expired in November, 2002, Kamini did not have any further right, title or interest in respect of the suit premises.
7. On 30th June, 2011, Kamini issued a notice under Section 106 of the Transfer of Property Act, 1882 to the Bank asking the Bank to vacate the property and deliver possession thereof to Kamini by 15th July, 2011. The Bank paid no heed to such notice and continued to occupy the suit premises.
8. In the aforesaid factual matrix Kamini filed CS No. 39 of 2012 in this Court seeking eviction of the Bank from the suit premises and other consequential reliefs. In the suit Kamini took out an application under Chapter XIII A of the Original Side Rules of this Court for final judgment and decree. By a judgment dated 23rd April, 2013, which is impugned herein, the Learned Judge allowed such application and passed a final eviction decree against the Bank.
9. A point of lack of pecuniary jurisdiction of this Court to entertain the suit was sought to be argued on behalf of the Bank before the Learned Judge, but the same was negated by the Learned Judge and in our view rightly. Kamini’s claim in the suit included a decree for Rs. 8,73,960/- for arrear of rent from 1st April, 2008 till 15th July, 2011 along with decree for mense profits at the rate of Rs. 2lakh per month on and from 16th July, 2011. This argument of lack of pecuniary jurisdiction was one made in despair. The said point, however, has not been urged before us.
10. The Learned Judge relied on the decisions in Vithal Bhai Pvt. Ltd -vs.- Union Bank of India reported in AIR 1992 Cal 283, Bashu Deo -vs.- Balkishan reported in (2002) 2SCC 50, E Parashuraman (dead) By Lrs -vs.- Doriswami (dead) By LR reported in 2006 1SCC 658 and Bansraj Laltaprasun Mishra -vs.- Stantey Parkar Jones reported in 2006 3SCC 91, of all which elucidate the principle of estoppel enshrined in Section 116 of the Evidence Act, held that the Bank was estopped from questioning Kamini’s title to the suit premises. Upon the expiry of the sub-lease in its favour, the Bank had n
