Back
2014 Supreme(Cal) 164
High Court of Judicature at Calcutta
DEBANGSU BASAK, J.
Concept Apartments Pvt. Ltd.
Versus
Kanak Bose & Others
S.A. No. 290 of 2000 (Appellate Side)
Decided on: 03-04-2014
For the Appellant:Jiban Ratan Chatterjee, Hiranmoy Bhattacharjee, Dipak Dey, Advocates.
The execution of a deed of lease subsequent to an existing tenancy can terminate the existing tenancy and bring about a new relationship between the parties in terms of the deed of lease, provided that there is a clear surrender of the existing tenancy and the new lease is valid and binding.
Headnote:
LEASE DEED - SURRENDER OF TENANCY - WEST BENGAL PREMISES TENANCY ACT, 1956 - SECTIONS 9, 13(1)(a) - Whether the execution of a deed of lease subsequent to an existing tenancy would terminate the existing tenancy and bring about a new relationship between the parties in terms of the deed of lease.
Fact of the Case:
In 1959, the original owner of the suit property executed a lease deed for 21 years in favor of the original defendant. During the lease period, the rent was increased twice. The Plaintiff No. 1 purchased the suit property and sold it to Plaintiff No. 2, who later amalgamated with Plaintiff No. 3. The original defendant filed a written statement, claiming that the initial tenancy was not surrendered and the lease deed was void ab initio. The Trial Court and the Appellate Court dismissed the suit for ejectment on the ground of expiry of lease.
Finding of the Court:
The High Court held that the original tenancy was surrendered and a lease came into being on March 2, 1959, based on the conduct of the parties, change in the area of tenancy, rate of rent, and additional obligation on the original tenant to pay increased municipal taxes. The lease deed dated March 2, 1959, was valid and binding between the parties, and the parties were governed by its terms and conditions. The lease expired by efflux of time, and the original defendant was liable to be evicted from the suit property.
Issues: 1. Whether the initial tenancy was surrendered when the lease deed was executed on March 2, 1959? 2. Whether the lease deed dated March 2, 1959, was void ab initio? 3. Whether the original defendant was entitled to the protections under the West Bengal Premises Tenancy Act, 1956?
Ratio Decidendi: 1. The Court held that the facts of the case, including the surrender of the garage, change in rent, and additional obligation to pay increased municipal taxes, established the surrender of the existing tenancy and the creation of a new lease on March 2, 1959. 2. The Court found that the lease deed dated March 2, 1959, was not void ab initio since the original tenancy was surrendered, and there was no other ground to hold it void. 3. The Court held that the original defendant was not entitled to the protections under the West Bengal Premises Tenancy Act, 1956, as the lease deed dated March 2, 1959, was for a period of 21 years.
Final Decision: The High Court allowed the second appeal, set aside the judgments of the Courts below, and decreed for eviction in terms of prayer (a) of the plaint. The issue of mesne profit was remanded to the Appeal Court below for determination.
Debangsu Basak, J.
1. The second appeal, at the behest of the plaintiff, was directed against a judgment of confirmation. A suit for ejectment on the ground of expiry of lease was dismissed by the Trial Court. The judgment of dismissal was upheld on appeal.
2. The Plaintiff No. 1 purchased the suit property. The original defendant was a lessee in the suit property at the time of purchase by the Plaintiff No. 1. A lease deed dated March 2, 1959 was executed by the original owner in favour of the original defendant. The lease was for a period of 21 years. During the subsistence of the lease the rent was increased from Rs.110 to Rs.150/- per month and thereafter from Rs.150/- to Rs.200/- per month. Subsequent the purchase, the Plaintiff No. 1 sold the suit property to the Plaintiff No. 2. The Plaintiff No. 2 subsequently amalgamated with the Plaintiff No. 3.
3. The original defendant filed written statement and took diverse defence. The principal defence of the original defendant which found favour with the Courts below was that, the initial tenancy existing in favour of the original defendant was not surrendered and, therefore, the lease deed dated March 2, 1959 was void ab initio.
4. The second appeal was admitted on March 29, 2000. Two substantial questions of law were framed on January 10, 2014.
5. Appearing in support of the appeal, Mr. Jiban Ratan Chatterjee, Senior Advocate, contended that the Courts below erred in holding that the earlier tenancy did not come to an end with the execution of the deed of lease on March 2, 1959 and that the deed of lease dated March 2, 1959 was void ab initio. He contended that, the Courts below failed to consider that, one Mr. M. L. Bose was a tenant in respect of the first floor and a garage and a room for the servant. On the death of Mr. M. L. Bose one Mr. Ashoke Bose, elder brother of the original defendant, became a tenant in 1955. The tenancy of Mr Ashok Bose was terminated and the original defendant became a tenant for a rent of Rs.140/- per month. The original defendant approached the Rent Controller for determination of fair rent and the Rent Controller fixed fair rent at Rs.88 per month. Thereafter, the lease deed dated March 2, 1959 was executed and the rate of rent was fixed at Rs.110/-. By the deed of lease dated March 2, 1959 of the original defendant agreed to pay rent at the rate of Rs.110/- per month. The original defendant vacated the garage space. Under the lease deed dated March 2, 1959 the original defendant was required to pay a portion municipal tax. The original defendant, therefore, surrendered the tenancy and entered into a fresh lease.
6. It was contended on behalf of the appellant that, the Courts below failed to take into consideration the fact of surrender of tenancy by the original defendant when the original defendant entered into the deed of lease dated March 2, 1959.
7. On behalf of the appellants reliance was placed on All India Reporter 1969 Supreme Court page 1291 (Gappulal v. Thakurji Shriji Dwarkadheeshji & Anr.); All India Reporter 1984 Calcutta page 194 (M/s. D.S. Commercial Pvt. Ltd. V. Shree Shewtambar Sthanakbasi Jain Sabha) and 2013 Volume 3 Calcutta High Court notes page 116 (Ferrazzini’s Bakery v. Amitava Mitter).
8. The facts of the case and the judgment under appeal would raise a substantial question of law as to whether or not the execution of a deed of lease subsequent to an existing tenancy would terminate the existing tenancy and bring about a new relationship between the parties in terms of the deed of lease.
9. Both the Courts below held that, the deed of lease was void ab initio. The Courts below were of the view that the original defendant did not surrender his tenancy when he entered into the deed of lease. In the judgment under appeal it was held that the lease deed itself did not specify that the earlier tenancy stood surrendered either explicitly or impliedly. It was held that, the acceptance or payment of higher rent in te
