The explanation added to Section 6(1)(j) of the West Bengal Premises Tenancy Act, 1997 does not apply to a tenancy created for combined purpose of residence and profession.

Jyotirmay Bhattacharya, J.

1. This second appeal is directed against the judgment and decree dated 14th December, 2015 passed by the learned Judge, 3rd Bench, City Civil Court at Calcutta in Title Appeal No.32 of 2014 affirming the judgment and decree dated 24th February, 2014 passed by the learned Judge, 3rd Bench, Presidency Small Causes Court at Calcutta in Ejectment Suit No. 48 of 2011 at the instance of the defendant/appellant.

2. Let us now consider the merit of the appeal to find out as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure or not.

3. Here is the case where we find that the plaintiffs as landlords filed a suit for eviction against the defendant on the ground of Section 6(1)(j) of West Bengal Premises Tenancy Act, 1997. Existence of relationship between the plaintiffs and the defendant as that of landlords and tenant is not denied by the defendant. In fact, it is an admitted position that such tenancy was created by the plaintiffs in favour of the defendant on the basis of a written agreement. Service of ejectment notice upon the defendant is also not disputed. The legality of such notice and sufficiency of such notice were also not under challenge in the suit.

4. Learned Trial Judge passed the decree for eviction in favour of the plaintiffs on the ground of Section 13(1)(j) of West Bengal Premises Tenancy Act, 1997. Learned first Appellate Court has also affirmed the said judgment and decree of the learned Trial Judge.

5. Let us now consider as to how far the learned courts below were justified in doing so in the facts of the instant case.

6. As a matter of fact, the legality of the judgment which is impugned in this appeal depends upon the interpretation of explanation added to Section 6(1)(j) of West Bengal Premises Tenancy Act, 1997. For the sake of convenience of understanding, we set out hereunder the provision contained in Section 6(1)(j) of West Bengal Premises Tenancy Act, 1997 :-

“6. Protection of tenant against eviction. – (1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any contract, no order or decree for the recovery of the possession of any premises shall be made by the Civil Judge having jurisdiction in favour of the landlord against the tenant, except on a suit being instituted by such landlord on one or more of the following grounds :

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(j) where the tenant has acquired or constructed, or has been allotted, a house or flat, provided a moratorium for one year is allowed for vacating the premises;

[Explanation. – This clause shall not apply to premises let out for non residential purpose and used for commercial purpose;]”

7. Mr. Chatterjee, learned advocate appearing for the appellant submits that the appellant is entitled to get protection of the explanation which is added to Section 6(1)(j) of West Bengal Premises Tenancy Act, 1997 as the tenancy was created for non-residential purpose and is also used for commercial purpose. Drawing our attention to the tenancy agreement as well as the pleadings of the parties and their evidence, Mr. Chatterjee contended that tenancy agreement itself provides that “the tenant shall be entitled to use the tenancy for all lawful purpose of residence and profession”.

8. Admittedly the tenant is a doctor by profession. He claims that he has subsequently acquired a residential flat elsewhere and has shifted his residence there and is using the suit premises exclusively for his professional purpose. Such being the position, Mr. Chatterjee claimed that his client is protected under the explanation added to Section 6(1)(j) of the said Act.

9. Let us now consider as to how far such contention of Mr. Chatterjee can be accepted in the facts of the instant case.

10. In this context, we have considered the tenancy agreement itself which is the primary source for cre