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IN THE HIGH COURT OF CALCUTTA
Ashis Kumar Chakraborty, J.
Gopal Ram Gupta - Appellant
Versus
Jitendra Nath Dutta (since deceased), Atanu Dutta & Ors. - Respondents
S.A. No. 489 of 2009 with C.O.T. 79 of 2009
Decided On : 21-8-2015
For the Appellant :Samim Ahmed, Advocate
For the Respondents:Sudhis Dasgupta, Hiranmoy Bhattacharyya, Mrinal Kanti Ghosh, Tanmoy Mukherjee, Advocates
The High Court can interfere with the concurrent findings of fact by the lower courts under Section 100 of the Code only if the evidence, taken as a whole, is not reasonably capable of supporting those findings.
Headnote:
EVICTION SUIT - DEFAULT IN PAYMENT OF RENT - SUBLETTING OF SUIT PROPERTY - APPLICABILITY OF SECTION 17(2) OF THE WEST BENGAL PREMISES TENANCY ACT, 1956 - APPLICABILITY OF SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908 - INTERPRETATION OF SECTION 13(1)(A) OF THE ACT - BURDEN OF PROOF - CONCURRENT FINDINGS OF FACT BY LOWER COURTS - INTERFERENCE BY HIGH COURT IN SECOND APPEAL UNDER SECTION 100 OF THE CODE.
Fact of the Case:
In an eviction suit, the tenant defaulted in payment of rent as determined under Section 17(2) of the West Bengal Premises Tenancy Act, 1956 (the Act). The tenant applied under Section 151 of the Code of Civil Procedure, 1908 (the Code) to condone the delay in depositing the arrears of rent. Both the trial court and the lower appellate court rejected the application and decreed eviction on the ground of default in payment of rent. The tenant filed a second appeal challenging the eviction decree.
Finding of the Court:
1. The High Court found that the trial court and the lower appellate court had concurrently found that the tenant had defaulted in payment of rent and had rightly rejected the application under Section 151 of the Code. 2. The High Court also found that the tenant had sublet the suit property without the landlord's consent, which was a ground for eviction under Section 13(1)(a) of the Act. 3. The High Court held that the burden of proof was on the tenant to prove that there was no subletting or transfer of possession of the suit property. 4. The High Court further held that it could interfere with the concurrent findings of fact by the lower courts under Section 100 of the Code only if the evidence, taken as a whole, was not reasonably capable of supporting those findings.
Issues: 1. Whether the tenant had defaulted in payment of rent. 2. Whether the tenant had sublet the suit property without the landlord's consent. 3. Whether the burden of proof was on the tenant to prove that there was no subletting or transfer of possession of the suit property. 4. Whether the High Court could interfere with the concurrent findings of fact by the lower courts under Section 100 of the Code.
Ratio Decidendi: 1. The High Court held that the trial court and the lower appellate court had concurrently found that the tenant had defaulted in payment of rent and had rightly rejected the application under Section 151 of the Code. 2. The High Court also found that the tenant had sublet the suit property without the landlord's consent, which was a ground for eviction under Section 13(1)(a) of the Act. 3. The High Court held that the burden of proof was on the tenant to prove that there was no subletting or transfer of possession of the suit property. 4. The High Court further held that it could interfere with the concurrent findings of fact by the lower courts under Section 100 of the Code only if the evidence, taken as a whole, was not reasonably capable of supporting those findings.
Final Decision: The High Court dismissed the tenant's second appeal and allowed the landlord's cross-objection. The judgment of both the learned courts below rejecting the ground of subletting of the suit property by the defendant appellant is set aside. The defendant appellant is directed to vacate the suit property and to hand over vacant the peaceful possession thereof to the respondents landlords within a period of two months from date.
Ashis Kumar Chakraborty, J.
The second appeal, at the instance of the defendant-tenant has been filed against the judgment and decree passed by the learned 10th Court of Additional District Judge at Alipore, in Title Appeal No. 145 of 2007 affirming the judgment and decree for eviction passed by the learned Civil Judge (Senior Division), 4th Court, Alipore in the ejectment suit being Title Suit No. 125 of 2000, on the ground of default of payment of rent.
2. At the time of admission of the second appeal, the Division Bench directed that the appeal will be heard on the following substantial question of law:-
"Whether the learned Judges in the Courts' below substantially erred in law and on fact in rejecting the application under Section 151 of the Code of Civil Procedure filed by the defendant-tenant for condonation of delay in depositing the arrears of rent."
3. After receipt of notice of the second appeal, the respondents also filed a cross-objection under Order 41, Rule 22 of the Code of Civil Procedure, 1908 against the judgment and decree of the first appellate Court affirming the judgment of the trial Judge rejecting the ground of eviction that the defendant appellant had sublet and transferred the suit property to third party without previous consent in writing of the original owner and the original plaintiff.
4. In the year 1966, the father of the original plaintiff, inducted the appellant as a monthly tenant in respect of the suit property at Premises No. 3E, Kundu Road, Kolkata, at a monthly rental of Rs. 500/-. The suit property is a double storied building in the heart of the city of Kolkata comprising three bedrooms, two kitchens, bath rooms and a courtyard on the ground floor and three bedrooms and one verandah on the first floor. After the death of the original owner, the suit property devolved upon the original plaintiff by virtue a will executed by the original owner (his father), duly probated by the competent Court. After issuance of ejectment notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 hereinafter called as "the Act", to the appellant tenant, the original plaintiff filed the ejectment suit before the Court of the Civil Judge, (Senior Division), 4th Court, Alipore, on the grounds, inter alia, that the defendant-tenant has sublet the suit property without any consent in writing from the landlord, the defendant-tenant caused damage to the suit property and also made default in payment of rent. The defendant-tenant filed his written statement and contested the eviction suit.
5. The trial Judge framed various issues, inter alia, whether the defendant has sublet the suit property, whether the defendant caused damage to the suit property and whether the defendant, is a defaulter in payment of rent.
6. The original plaintiff and one of his sons, the present respondent no. 1 adduced both oral and documentary evidence before the trial Judge. The defendant -tenant himself adduced evidence, both oral and documentary. After considering the evidence of both the parties the trial Judge held the suit filed by the original plaintiff was maintainable and decreed the ejectment suit only on the ground that the defendant-tenant defaulted in payment of rent. The trial Judge, however, rejected the claim of the original plaintiff that the defendant-tenant caused damage to the suit property or that he had sublet the suit property.
7. The substantial question of law framed by the Division Bench at the time of admission of the second appeal arise out of the decision of the learned trial Judge that the defendant-tenant was a defaulter in payment of rent and resulting in passing of the eviction decree; the decree for eviction on the ground of default of payment of rent was affirmed by the lower appellate Court. In the second appeal before this Court, the appellant has challenged the validity of the eviction decree on the ground of default in payment of rent. Thus, I think that the main appeal of the appell
