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2023 Supreme(Cal) 1629
IN THE HIGH COURT AT CALCUTTA
HARISH TANDON, PRASENJIT BISWAS, JJ.
Rampada Senapati and Another – Appellants
Versus
Amit Dutta and Another – Respondents
S.A.T. No. 311 of 2016, CAN No. 1 of 2016 (Old No. CAN 10796 of 2016), CAN No. 3 of 2022, CAN No. 4 of 2022, CAN No. 5 of 2022
Decided On : 22-06-2023
Advocate Appeared:
For the Appellants : Bhudeb Bhattacharyya, Abhijit Ray, Santu Nandy
Headnote:(A) Code of Civil Procedure - Order XXXII Rules 4 and 15 - Transfer of Property Act, 1882 - Section 108(e) - Condonation of delay allowed for filing substitution application - Right to sue survives upon heirs - Tenancy extinguished due to destruction of property by fire - Suit for recovery maintained against permissive occupants without notice requirements - Defendants failed to prove tenancy for ground floor rooms. (Paras 2, 5, 14, 23)
(B) Tenancy Law - Tenancy is a creature of contract, requiring evidence of rent payment - Failure to prove the existence of a tenancy leads to classification as permissive occupants. (Paras 13, 15)
Facts of the case:
Appeal involves substitution after the death of the original plaintiff, with dispute over tenancy rights after a fire destroyed a tenanted room. Plaintiffs allege defendants were only permissive occupants after the destruction, while defendants claimed new tenancy was established.
Findings of Court:
The court found no infirmity in earlier findings that tenancy rights were extinguished and upheld the dismissal of the appeal.
Issues: The primary issues were the existence of tenancy post-destruction and whether notice was necessary for recovery of possession.
Ratio Decidendi: The court confirmed that the existence of tenancy requires evidence such as rent payment and ruled that tenancy is extinguished when the leased property is destroyed.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. application for condonation of delay. (Para 1 , 2 , 3) |
| 2. application for substitution upon abatement. (Para 4 , 5 , 6 , 7) |
| 3. permissive occupation and plea against decree. (Para 9 , 10 , 11) |
| 4. defendants' claim of tenancy invalid. (Para 12 , 13 , 14 , 15) |
| 5. representation of persons of unsound mind. (Para 16 , 18 , 19) |
| 6. arguments outside pleadings impermissible. (Para 20) |
| 7. destruction of tenancy by fire. (Para 21 , 22 , 23) |
| 8. rejection of arguments not present in pleadings. (Para 24) |
| 9. court's finding not perverse. (Para 25 , 26 , 27) |
| 10. dismissal of appeal. (Para 28) |
JUDGMENT :
Re: CAN 3 of 2022
1. This is an application seeking condonation of delay in taking out an application for substitution upon setting aside abatement.
2. After hearing the learned Counsel appearing for the appellants and on perusal of the averments made in the instant application, we are satisfied that the defendants/appellants were prevented by sufficient cause in not filing the application for substitution within the time limited therefor.
3. The delay in filing the application for substitution upon setting aside abatement is condoned. The instant application is thus allowed.
Re: CAN 5 of 2022
4. This is an application for substitution upon setting aside abatement.
5. After hearing the learned Counsel for the appellants and on perusal of the averments made in the instant application, we find that the right to sue survives upon the heir and legal representatives of the deceased plaintiff, as mentioned therein, to pursue the cause of the instant appeal.
6. Hence, the instant application is allowed. Let the persons named in the said application be substituted instead and place of the deceased plaintiff/appellant no. 1.
7. Office is directed to amend the cause title of the instant application as well as the Memorandum of Appeal.
8. The applications being CAN 4 of 2022 and CAN 5 of 2022 are disposed of accordingly.
Re: S.A.T. 311 of 2016
9. The permissive occupants have taken all sorts of pleas to thwart the decree passed by the Trial Court and affirmed by the First Appellate Court on the grounds, which had been conclusively decided by both the Courts below.
10. Obviously the moment the decree for recovery of possession is passed by the Court, the defendants took all sorts of pleas to defeat and delay the enjoyment of the fruits of the decree in the hands of the decree-holder and in this case even approached the Executing Court by filing an application under Section 47 of the Code of Civil Procedure stating that the plaintiff no. 2 being a person of unsound mind cannot be represented by the plaintiff no. 1, his brother, unless the Court appoints a guardian. We have given to understand that the said proceeding under Section 47 of the Code is still pending which raises a serious concern.
11. The facts revealed in course of hearing as well as from the record of the instant appeal that the defendants/appellants were inducted as tenant in respect of one room on the first floor with a common user of privy, which subsequently gutted in fire. It is a specific case of the plaintiffs that the said room was destroyed completely when the fire broke out and the same is also admitted by the first witness of the defendants as reflected in the judgement rendered by the Trial Court. It is a specific case of the plaintiffs/respondents that while in possession of one room on the first floor at the suit premises the defendants/appellants were permitted to occupy one room on the ground floor for the purpose of keeping potatoes, as they were engaged in the avocation of dealing the potatoes. It is further stated that after the first floor room was gutted in fire, out of sheer relation the defendants/appellants were permitted to use another room on the ground floor.
12. The plaintiffs have categorically stated in the plaint that permission to use the aforesaid two rooms on the ground floor can never be construed as a tenancy and, therefore, the defendants/appellants remai
