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2017 Supreme(Cal) 157
IN THE HIGH COURT OF CALCUTTA
Biswanath Somadder, Sankar Acharyya, JJ.
W. Newman and Company Limited - Appellant
Versus
Apollo Zipper India Limited and another - Respondents
APD No. 510 of 2015 with CS No. 201 of 2012
Decided On : 13-06-2017
Advocate Appeared:
For the Appellant : Mr. Pratap Chatterjee, Mr. Tilok Bose, Mr. Raj Ratna Sen, Mr. A.P. Gomes, Ms. Akriti Jain, Ms. Debolina Dey
For the Respondents: Mr. S.K. Kapoor, Mr. Utpal Bose, Ms. Hashnuhana Chakraborty, Ms. Neelina Chatterjee, Ms. Soumali Basu
The main legal point established is that the defendant must be given the opportunity to present a good defense and that a good defense does not necessarily mean defeating the plaintiff's claim.
Headnote:
Eviction - Civil Suit - Chapter XIIIA of the Original Side Rules - Section 106 of the Transfer of Property Act
Fact of the Case:
The plaintiff filed a civil suit for eviction of the tenant from the suit premises and recovery of arrear rent. The defendant challenged the pecuniary jurisdiction of the Court, plaintiff's ownership, and the rate of monthly rent. The Court delivered a judgment in favor of the plaintiff for eviction but granted leave to the defendant to defend the claim for arrear rent and mesne profit.
Finding of the Court:
The Court found that the defendant had a good defense to the plaintiff's claim and was entitled to defend the suit unconditionally.
Issues: The issues included the ownership of the suit premises, the rate of monthly rent, and the validity of the notice to quit served by the plaintiff.
Ratio Decidendi: The Court emphasized that the defendant must be given the opportunity to defend himself against the plaintiff's claim and that a good defense does not necessarily mean defeating the plaintiff's claim.
Final Decision: The impugned judgment was set aside, and the defendant was granted unconditional leave to defend the whole claim of the plaintiff in the suit.
On 06.06.2012 the plaintiff/respondent no. 1 as owner of suit premises filed a civil suit, being C.S. 201 of 2012, for eviction of the tenant, being the defendant/appellant before us, from the suit premises with prayers for recovery of arrear rent and mesne profit while claiming service of notice to quit upon the defendant prior to filing of the said suit.
2. On 22.08.2012, the defendant/appellant entered appearance in that suit after receiving Master's summons and expressed intention to file a written statement. On 31.08.2012, the defendant filed an application, being G.A. No. 2427 of 2012, which was affirmed on 29.08.2012, for extension of time to file the written statement. After receiving the notice of motion in respect of that application, the plaintiff/respondent no. 1 filed G.A. 2408 of 2012 affirmed by an affidavit on 31.08.2012 for passing of a final judgment under Chapter XIIIA of the Original Side Rules of this High Court in favour of the plaintiff for a summary decree for recovery of vacant possession in the suit premises. Defendant/appellant filed affidavit-in-opposition dated 20.11.2012 to the said application of plaintiff/respondent challenging the material allegations of plaintiff/respondent no. 1 and dealing with all matters of fact specifically.
3. Succinctly stated, the plaintiff's case is that the suit premises at 18, Hemanta Basu Sarani, belonged to Great Eastern Hotel and the defendant was monthly tenant therein. The State of West Bengal acquired the property by legislative enactment and it vested in the State. Subsequently, by successive legislations and Government notifications, the property ultimately vested in the plaintiff company with effect from 05.10.2005. Defendant failed to pay monthly rent at the rate of Rs.40,000/-. Plaintiff served notice dated 17.05.2012 upon the defendant determining the tenancy, but the defendant did not vacate the suit premises even after expiry of notice period.
4. The defendant, in the affidavit-in-opposition to G.A. 2408 of 2012 denied the plaintiff's case. The defendant, inter alia, challenged the pecuniary jurisdiction of the Court, locus standi of the plaintiff to file the suit, plaintiff's acquisition of ownership in the suit premises and plaintiff's claim of monthly rent as Rs.40,000/-. Specific defence of the defendant is that the monthly rate of rent is Rs.1,600/- in respect of the suit premises and since the suit premises was badly damaged for want of maintenance in 2003, there was an understanding between Great Eastern Hotel and defendant for payment of Rs.38,400/- per month as maintenance charge in respect of the suit premises by the defendant to Great Eastern Hotel in addition to the monthly rent of Rs.1600/-. By a letter dated 28.04.2006, the defendant/appellant was informed by M/s. Khaitan & Co. that Bharat Hotel Limited has become the absolute and exclusive owner of the suit premises by transfer. Both the respondents including the plaintiff of C.S. 201 of 2012 had jointly filed C.S. 53 of 2007 claiming their right, title and interest in the suit premises against the defendant praying for declaration and consequential reliefs alleging, inter alia, termination of defendant's tenancy right on acquisition of suit premises by the State of West Bengal in 1980. During pendency of said suit, plaintiff/respondent no. 1 alone served notice under section 106 of the Transfer of Property Act and filed C.S. 201 of 2012. On 23.06.2014, the said C.S. 53 of 2007 was dismissed for default. It is also the contention of the defendant/appellant that after the plaintiff company became a Government company, transfer of the suit premises, if any, as alleged in the plaint, is a transfer by the State Government to a Government company, which tantamounts to transfer by the State of West Bengal to the State of West Bengal and therefore, not lawful. Defendant/appellant contended that the State of West Bengal and Bharat Hotel Limited are necessary parties to the suit for ascert
