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2014 Supreme(Cal) 308
IN THE HIGH COURT AT CALCUTTA
Debangsu Basak, J.
Debabrata Maity
Vs.
Pravanshu Kumar Maity
CAN No. 2934 of 2014 & S.A. No. 278 of 2012
Decided On : 19.6.2014
For the Appellant :Mr. Haradhan Banerjee, Advocate, Mr. Soumen Kr. Dutta, Advocate, Mr. Subhas Jana, Advocate.
For the Respondent:Mr. Gopal Chandra Ghosh, Advocate, Mr. K.C. Sahoo, Advocate, Mr. Kartick Kr. Das, Advocate.
An agreement to vacate tenancy premises, in order to be valid under Section 13(1)(k) of the West Bengal Premises Tenancy Act, 1956, must be subsequent to the creation of the tenancy.
Headnote:
PREMISES TENANCY ACT - EVICTION - SECTION 13(1)(K) - AGREEMENT TO VACATE SUBSEQUENT TO CREATION OF TENANCY - VALIDITY OF AGREEMENT - INTERPRETATION OF DOCUMENT - RES JUDICATA.
Fact of the Case:
A dental surgeon was sued for eviction from tenancy premises for failing to vacate after the expiry of the date he agreed to vacate in writing. The appellant challenged the eviction decree, arguing that the agreement to vacate was not subsequent to the creation of the tenancy and that the tenancy commenced from the date of the agreement. The respondent relied on a previous judgment between the same parties, which held that the appellant was bound to vacate the premises in terms of the agreement.
Finding of the Court:
The court held that the agreement to vacate was subsequent to the creation of the tenancy and that the tenancy commenced from January 1988, as stated in the agreement. The court also held that the findings in the previous judgment were binding on the parties and that the appellant was estopped from denying the validity of the agreement.
Issues: 1. Whether the agreement to vacate was subsequent to the creation of the tenancy as required by Section 13(1)(k) of the West Bengal Premises Tenancy Act, 1956. 2. Whether the findings in the previous judgment between the same parties were binding on the parties in the current suit.
Ratio Decidendi: 1. The court interpreted Section 13(1)(k) of the West Bengal Premises Tenancy Act, 1956, and held that the agreement to vacate must be subsequent to the creation of the tenancy for the landlord to be entitled to an eviction decree. 2. The court applied the principles of res judicata and held that the findings in the previous judgment between the same parties were binding on the parties in the current suit.
Final Decision: The court dismissed the appellant's second appeal and upheld the eviction decree.
Debangsu Basak, J.
CAN No. 2934 of 2014
The application was for restoration. The second appeal was dismissed for default on March 20, 2014.
When the application appeared in the list it was agreed by the parties that the second appeal would be heard on merits. The parties proceeded to advance arguments on the merits of the second appeal.
The causes shown in the application are accepted as sufficient. The order of dismissal for default dated March 20, 2014 is recalled.
CAN No. 2934 of 2014 is allowed. There will be no order as to costs.
S.A. No. 278 of 2012
A tenant assailed a judgment of affirmation for his eviction from the tenancy premises.
The suit against the appellant, a dental surgeon, was for eviction on the failure of the appellant to vacate the tenancy premises after the expiry of the date on which he agreed in writing to vacate the tenancy premises.
The second appeal was admitted by an order dated August 30, 2012. The following substantial question of law was framed for consideration:-
1. Whether the courts below, substantially, erred in law in granting a decree for eviction under subsection (k) of section 13(1) of the Premises Tenancy Act, 1956 when the plaintiff failed to produce any documentary evidence as to creation of tenancy prior to execution of the agreement dated June 02, 1988, inter alia, expressing the intention of the tenant to vacate the suit premises?
Mr. Haradhan Banerjee learned Advocate for the appellant contended that, the conditions required to invoke Section 13(1)(k) of the West Bengal Premises Tenancy Act, 1956 were not fulfilled. The only basis for the suit of eviction of the appellant was on the alleged failure of the appellant to vacate the suit premises on the expiry of the date on which the appellant allegedly agreed in writing to vacate. According to him, under the provisions of Section 13(1)(k) of the West Bengal Premises Tenancy Act, 1956 a tenant can agree to vacate the tenancy if such tenant agreed to do so in writing and such agreement was entered into subsequent to the creation of the tenancy. He contended that, the agreement dated June 2, 1988 was not entered into subsequent to the creation of the tenancy. He submitted that, there was no evidence on record to establish that the tenancy was created prior to June 2, 1988.
He next contended that, the recital in the agreement dated June 2, 1988 claimed that the tenancy was created from January 1988. Such recital was at best, according to him, a recital for creation of a tenancy from an anterior date. He relied on an unreported Division Bench judgment on this Hon’ble Court rendered in F.A. No. 226 of 2004 (M/s. Amarjyoti Pictures vs. Sri Himdri Das & other) for the proposition that the period of the tenancy which was dated anterior was void.
It was submitted on behalf of the appellant that, the Courts below did not appreciate the evidence properly. It was claimed that the respondent as the plaintiff admitted creation of the tenancy since June 1988. Such factum, according to the appellant, was overlooked by the Courts below. The Courts below, therefore, were in grave error in appreciating the evidence on record. When there was grave error in the appreciation of the evidence on record by the Courts below, the Second Appeal Court was competent to reverse such finding of fact. In support of such contention reliance was placed on 1988 Volume 2 Supreme Court Journal page 453 equivalent to 1988 (Supp.) Supreme Court Cases page 451 (J.B. Sharma vs. State of Madhya Pradesh & another) and 1988 Volume 3 Supreme Court Journal page 61 equivalent to 1988 (Supp) Supreme Court Cases page 710 (Dilbagrai punjabi vs. Sharad Chandra).
Mr. Banerjee for the appellant relied on the examination-in-chief of the plaintiff witness no. 1 and the other materials on record to submit that, the respondent had admitted that the tenancy was created from June 2, 1988.
Mr. Banerjee relied upon 1989 Volume 1 Calcutta High Court Notes page 1 (Mahindra & Mahindra v
