Amal Dutta vs Ismail Ghulam Hussain Ariff, Receiver

P.N. Mookerjee, J.—This appeal is by the Defendant and it arises out of a suit for eviction by the Plaintiff, who is the landlord and under whom, the Defendant was holding the suit premises as a tenant up till the determination or termination of the said tenancy.

The suit was filed on March 5, 1962. It is, admittedly, governed by the West Bengal Premises Tenancy Act, 1956 and the ground, taken in. the plaint for eviction of the Defendant, was the ground, mentioned in Section 13(1)(k) of the said statute. The said Clause (k) runs in these terms:

Where subsequent to the creation of the tenancy, the tenant having agreed in writing with the landlord to deliver vacant possession of the premises to the landlord has failed to do so.

The agreement, relied on for the purpose, is Ex. 1 in the case, of which the material terms and recitals are as follows:

WHEREAS since the appointment of the said Ismail Ghulam Hussain Ariff as Receiver of the said wakf estates, the said Amal Dutta has been a monthly tenant of the said premises No. 13, Amratolla Lane, Calcutta, under the said Receiver.... And whereas by by mutual agreement the rent has been fixed at Rs. 200 per month with effect from August 1, 1960, payable according to English calendar month and whereas the said Amal Dutta recently expressed his desire to quit and vacate and deliver up the vacant possession of the said premises No. 13, Amratolla Lane, Calcutta, to the said Receiver on the expiry of the last day of August, 1963. Now this Deed witnesseth as follows:

(1) The said Amal Dutta hereby agree to quit, vacate and deliver up peaceful vacant possession of the entire premises No. 13, Amratolla Lane, Calcutta, to the said Receiver on the expiry of the last day of August, 1963. No further formal notice to quit shall be required from either side.

This indenture or agreement is signed by both the parties and the Plaintiff''s claim for ejectment under the above Clause (k) is founded on this document.

The defence was that this agreement would be insufficient for purposes of the Defendant''s eviction under the above statutory provision, Section 13(1)(k) of the West Bengal Premises Tenancy Act, 1956.

This defence was overruled by the learned trial Judge and the Plaintiff''s suit was decreed.

In this appeal, Mr. Bhattacharyya, appearing on behalf of the Defendant Appellant, has raised the same contention on behalf of his said client and has elaborated it in the following manner:

In the first place, he has argued that, by this document, a fresh tenancy came into existence as the original tenancy had been determined by the previous notice to quit, which was given by the landlord in June 1960, terminating the Defendant''s said tenancy with effect from the expiry of the month of July, 1960 and accordingly, the so-called agreement, under Clause (k) forming as it does part of the same document, cannot be a subsequent agreement as contemplated by that clause, so as to be valid and effective for its purpose.

In the second place, he has argued that this agreement, however much it may be an agreement under the above Clause (k) of the relevant or relative statute, would not serve the purpose of the requisite notice to quit u/s 106 of the Transfer of Property Act, without which the Defendant''s tenancy in question cannot be said to have been determined.

On the first question it is enough to point out that, by or under the agreement (Ex. 1), the original tenancy of the Defendant was accepted as subsisting on the date of the said document and was continued by the same for the period, mentioned therein. This is clear from the use of the expression "the said Amal Dutta has been a monthly tenant of the said premises under the said Receiver", which postulates that the Defendant''s old tenancy was accepted as continuing. There was, therefore, no creation of any fresh tenancy by this document (Ex. 1) and indeed, the matter is made clear by the parties conduct, which shows that the tenancy of the Defendant up till its termination in terms of the said agreement, was a monthly tenancy according to the English calendar month and not a tenancy starting on and from September 6, 1960, which was the date of the above document. This is also corroborated by the Defendant''s attitude, as expressed in his written statement, where, in para. 7, he accepts the Plaintiff''s allegations in para. 2 of the plaint, which proceeds on the footing of the Defendant''s old or pre-existing tenancy prior to September 6, 1960 and affirms that the Defendant was a tenant on a rental of Rs. 200 per month, payable according to the English calendar month. In the circumstances, the first of the above two pleas of Mr. Bhattacharyya must be rejected.

On the second question too, it is clear that the agreement contains within it a notice to quit by the tenant in full compliance with the provisions of Section 106 of the Transfer of Property Act, in particular, expiring with the month of the said tenancy, which notice was accepted by the landlord or, in other words, there was termination of the tenancy in question with or on the expiry of the period, mentioned in the said agreement, namely, the expiry of the last day of August, 1963, from either side. It is significant also to note that the said agreement expressly mentioned that "no further formal notice to quit shall be required from either side", which, in effect, treats the said agreement as such formal notice from either party. Moreover, the terms of this agreement show that it is an agreement to the contrary which will exclude Section 106 of the Transfer of Property Act. Viewed from all the above points of view, no question of any fresh or separate notice u/s 106 of the Transfer of Property Act would be necessary for terminating the tenancy in suit. We would, accordingly, reject the second submission too of Mr. Bhattacharyya.

In the result, the points, urged in support of this appeal, fail. The appeal will, accordingly, be dismissed but, having regard to the circumstances of the case, we will grant the Defendant tenant time till the end of January next to quit and vacate the disputed premises and to make over vacant and peaceful possession thereof to the Plaintiff Respondent provided that the Defendant goes on depositing, in the trial Court, to the credit of the decree-holder Respondent, a sum of Rs. 200 per month, month by month, regularly, according to the English calendar, on account of current mesne profits, within the 15th of the next succeeding month according to the same calendar and in default of any two of such deposits, this decree for eviction will become executable at once and the above grace period will automatically lapse.

The parties will bear their own costs, so far as this Court is concerned.

The Plaintiff will have the liberty to withdraw any deposits already male, or to be made, by the Defendant, on account of rents or mesne profits, as the case may be, of the disputed premises, without furnishing any security therefore. The Defendant also will have the liberty to claim adjustment against the decree for mesne profits'' passed by the learned trial Judge in favour of the Plaintiff and affirmed by us by the dismissal of this appeal, in respect of any amount, paid or deposited by the Defendant on account of any period, starting with September, 1963.

Subject as above, this appeal fails and it is dismissed.

The Respondent Receiver will be entitled to have his costs of this litigation out of the estate.

Gupta, J.

I agree.