Asoka Ghosh vs East End Trading Co. Pvt. Ltd.

S.P. Rajkhowa, J.—This appeal is directed against the judgment and decree dated May 28, 1984, passed by Sri S.N. Mukherjee, Judge, City Civil Court, Third Bench, Calcutta, dismissing the Ejectment Suit No. 1053 of 1976 by the Plaintiff/Appellant.

The plaint case in brief is that Asim Krishna Dutta (since deceased) as lessor, demised unto Ganesh Das Mimani (since deceased) as lessee, premises No. 6, Free School Street, Calcutta, for a term of fifty-one years commencing from April 1, 1949, by a Registered Lease Deed dated May 3, 1949. By a Deed of Settlement dated February 9, 1958, the said Asim Krishna Dutta as settlor, in consideration for his natural love and affection to his daughter, i.e. the Plaintiff, granted unto Sri Ashoke Kr. Dutta and Manjul Mitter as trustees, the said premises No. 6, Free School Street, to make over the said property to the Plaintiff as lesser on her attaining the age of 25 years, to be held and enjoyed by her absolutely. The said trustees handed over to the Plaintiff the said property by a registered Deed of Release dated December 29, 1971, on her attaining the age of 25 years.

The original lessee Ganesh Das Mimani died on April 18, 1965, leaving a Will. The probate of the Will was obtained by the executor and the executrix who in course of administration of the estate of the said Ganesh Das Mimani made over the said premises No. 6, Free School Street, to Krishna Kumar Mimani, who became entitled to the leasehold interest of Ganesh Das Mimani. Krishna Kumar Mimani thus became the lessee under the Plaintiff lesser, for the unexpired period of lease term.

By a registered Deed of Surrender dated February 19, 1975, Krishna Kumar Mimani surrendered the lease for consideration mentioned in the said Deed of Surrender in favour of the Plaintiff. In the Deed of Surrender a list of sub-tenants, under Krishna Kumar Mimani has been appended. The sub-tenants of the said premises attorney to the Plaintiff and became tenants under her for their respective accommodation as mentioned in the Deed of Surrender.

The Defendant was a monthly tenant under the Plaintiff in respect of the entire third floor of premises No. 6, Free School Street, comprising 10 rooms, bath and privy at a monthly rental of Rs. 150 according to English calendar month. The Defendant has illegally sub-let a substantial portion of the suit premises without any authority or consent from the Plaintiff. The sub-tenants have been inducted illegally and without any authority after 1956 and some of them have been inducted even after the surrender of the lease by Krishna Kumar Mimani. The Defendant has also caused various acts of unauthorised alterations in the suit premises and has effected substantial additions and alterations of permanent nature without any right or authority. The Defendant is not entitled to claim any protection against eviction under the provisions of West Bengal Premises Tenancy Act. Defendant''s tenancy has been determined by a notice dated July 23, 1976, and he has been asked to vacate the suit premises on the expiry of the month of August 1976. The Defendant has not vacated the suit premises in spite of service of the notice sent by registered post. Hence, the Plaintiff filed the suit praying for a decree against the Defendant for ejectment and recovery of khas possession together with damages and/or mesne profits and cost of the suit.

Defendant has contested the suit by filing a written statement contending inter alia that the tenancy has not been validly determined, that there had not been valid service of notice as the notice had not been served upon the answering Defendant showing its correct name and that there was no unauthorized construction to lease-hold property and that no sub-tenant was inducted into the suit premises after surrender. The specific case of the Defendant is that prior to the surrender by Krishna Kr. Mimani the Defendant was given permission in writing by the said Krishna Kr. Mimani to sub-let the portion in occupation of the Defendant or part thereof.

On the basis of the pleadings of both sides, the following issues were settled.

(1) Is the suit maintainable in its present form?

(2) Is the notice to quit valid, legal and sufficient? And was it duly served upon the Defendant?

(3) Has the Defendant sub-let, assigned or otherwise transferred the suit premises without the consent of the Plaintiff as alleged?

(4) Has the Defendant effected material additions and alterations in the suit premises without the consent of the Plaintiff?

(5) Is the Defendant liable to be evicted?

(6) To what other relief, if any, is the Plaintiff entitled?

The learned Judge decided all the aforesaid issues against the Plaintiff and dismissed the suit on contest with cost. Hence the appeal.

The learned Counsel for the Appellant has submitted that on the basis of evidence on record the learned Judge ought to have decided all the issues in favour of the Plaintiff and ought to have decreed the suit. In particular he has addressed us on the following four points, viz. (i) that legally valid and sufficient notice had been duly served upon the Defendant, (ii) that the suit is maintainable, (iii) that the Defendant had been guilty of sub-letting the suit premises without the consent of the Plaintiff and (iv) that the Defendant had been guilty of violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act and has urged before us that the Defendant/Respondent is liable to be evicted from the suit premises.

We propose to discuss the facts and circumstances which weighed heavily in the mind of the trial Court in holding that the notice of ejectment was invalid. The Defendant company was at its inception known as East End Trading Co. Pvt. Ltd. Subsequently, the name of the Defendant company was changed to be known under the name and style of East End Trading and Engineering Co. Pvt. Ltd. Exhibit 7 is the notice dated July 23, 1976, sent to Defendant company under registered cover with acknowledgement due. This notice was addressed to the Defendant company in the following manner -- "To East End Trading Co. Ltd. now known as East End Traders and Engineering Company Pvt. Ltd." The receipt of the said notice was acknowledged by the Defendant company and was received by an employee of the company on July 29, 1976, with the following endorsement "for East End Trading and Engineering Co. Pvt. Ltd." This acknowledgement was proved during the trial and was marked Ex. 9. A copy of the said notice was also sent to the company''s address at 6 Mirza Galib Street, formerly Free School Street, Calcutta, under registered cover with acknowledgement due. But this was returned to the Plaintiff''s learned Advocate with the postal endorsement ''not known''. This was also duly proved during trial and was marked Ex. 10. The Defendant''s contentions are that the Plaintiff was aware of the fact that the company had changed its name from East End Trading Co. Pvt. Ltd. to East End Trading and Engineering Co. Pvt. Ltd. because of the fact that Defendant itself, vide their letter dated July 23, 1976, (Ex. 5) intimated the change of name of the company to the Plaintiff. As such the company under the name and style East End Trading Co. Ltd. no longer existed. In spite of this fact coming to the knowledge of the Plaintiff, she served a notice upon a company which was defunct and, therefore, the said notice cannot be treated as a valid notice in the eye of law.

In accepting the contentions of the Defendant on the point of notice the learned trial Judge has, inter alia, made the following observations:

It would be permissible to assume that a good number of company with substantial similarity of names are in existence. But they are distinct and separate company. The fact that the Defendant is contesting the suit is no ground for ignoring a wrong description of the company particularly in view of the Defendant''s letter Ex. 5 by which the company''s new name has been communicated to the Plaintiff. In view of the facts and evidence on record, I am of the opinion that the notice is wrongly addressed and the learned Advocate for the Defendant has rightly contended that the notice of ejectment is invalid.

As the notice of ejectment was found to be invalid, the learned Judge also concluded that the suit itself was not maintainable.

We have not been able to subscribe to the reasons given by the learned Judge. There are enough materials on record to hold a contrary view. We find that the Defendant company filed a petition on March 8, 1977 in the trial Court u/s 17(2) of the West Bengal Premises Tenancy Act alleging that a dispute arose as to the amount of rent payable by the Defendant company to the Plaintiff and, therefore, prayed before the Court for determination of this alleged dispute. We, therefore, find it hard to swallow the contention of the Defendant that the instant suit is not maintainable u/s 13(1)(a) of the Act on the ground that the notice was addressed to a wrong name and the suit was filed against a non-existent company.

Referring to Section 23 of the Companies Act, 1956, the learned Counsel for the Respondent has submitted that the Defendant company had changed its name and the new name had already been incorporated in the Memorandum of the Association of the company by the Registrar of Companies on April 29, 1976, (Ex. A) as per provision of Section 34 of the Act and the Registrar issued the certificate whereby the new company had been incorporated. Relying on Malhati Tea Syndicate Limited Vs. Revenue Officer, Jalpaiguri and Others, learned Counsel for the Respondent has submitted that the instant suit against the Defendant company is not maintainable. In that reported case the provision of Sub-section (3) of Section 23 of the Companies Act came up for discussion and it was held that there was nothing in this Sub-section authorizing a company to commence a legal proceeding in its former name, after it had acquired its new name which had been put on the register of Joint Stock Company.

However, we find that the facts of the instant case are not similar to the facts of the reported case. Sub-section (3) of Section 23 lays down that the change of name shall not affect any rights and obligations of the company or render defective any legal proceeding by or against it; and any legal proceeding which might have been continued or commenced by or against the company by its former name may be continued by or against the company by its new name. In the case before us, apart from the change of name, (sic) do not come across any material to show that the Defendant company under the new name has not succeeded to the assets and liabilities standing in its previous name. There is no evidence to show that the assets and liabilities of the Defendant company under its previous name had been liquidated and a new company had been floated with new members having newly acquired assets.

The Plaintiff has averred in the. plaint that the Defendant who was a tenant in respect of the suit premises has inducted strangers in the said premises and, therefore, the Defendant was guilty of sub-letting. In para 9 of the written statement the Defendant has admitted that the averments made by the Plaintiff in para 8 of the plaint are substantially correct. We reproduce here para 8 of the plaint for understanding the admissions of the Defendant.

The Defendant, till the determination of the tenancy, was a monthly tenant under the Plaintiff, the landlord of the Defendant, in respect of the entire 3rd floor of the municipal premises No. 6, Mirza Galib Street (formerly 6, Free School Street) which consists of 10 rooms, bath and privy within a covered area of 1500 sq. ft. along with other appurtenances, particularly described in the schedule hereunder and hereinafter referred to as the suit premises, at a monthly rental of Rs. 150 according to the months of English Calender.

The suit premises has been fully described in the schedule at the foot of the plaint, wherefrom the Plaintiff sought the eviction of the Defendant.

We find the materials on record tilting the balance heavily in favour of the Plaintiff. The notice, Ex. 9, was received by the company and both sides went to the trial being fully conscious of their respective positions both in fact and in law. The Defendant company, we find, had never been misled as to the cause of action in the suit by the misdescription of its name in the notice. In this regard the learned Counsel for the Appellant has referred to a recent decision of the Supreme Court in Patasibai and Others Vs. Ratanlal, . In this reported case the joint family firm of M/s. Ratanlal Damdoolal and Bros.'' was arrayed as Defendant No. 2 but was wrongly described as ''M/s. Damdoolal and Bros.'' It was held by the Supreme Court that this misdescription of the firm did not mislead parties in any way. This ruling has clinched the issue in favour of the Plaintiff.

Our attention has been drawn by the learned Counsel for the Respondent that there was further misdescription in the name of the Defendant company inasmuch as the name was shown as East End Traders and Engineering Co. Pvt., Ltd. thereby wrongly putting the word ''Traders'' in place of the word ''Trading''. The learned Counsel for the Appellant submitted that this was a typographical mistake. Whether it was a typographical mistake or a mistake by inadvertence, we are of the opinion that such minor aberration may be ignored.

It was further urged by the learned Counsel for the Respondent that notice was invalid inasmuch as it sought to determine the tenancy at the end of the English Calendar month whereas the tenancy was from the 19th of the English Calendar month to the 19th of the following month. But from the evidence on record, we find that the intention of the parties was to create a monthly tenancy beginning on the 1st day and ending on the last day of the month according to English calendar. We, therefore, hold that the Defendant company was served with, a legally valid and sufficient notice by the Plaintiff prior to the institution of the suit and therefore the suit is maintainable.

The third point, i.e. the point of sub-letting covers a wide spectrum. Exhibit 3 is the registered deed of lease executed between Asim Krishna Dutta and Ganesh Das Mimani on May 3, 1949, to March 31, 2000. Exhibit 4 is the registered deed of surrender of lease executed between Krishna Kumar Mimani and Badri Das Mimani and Sm. Asoka Ghosh (Plaintiff) on February 19, 1976. Making a reference to the deed of lease as aforesaid, the recitals in Ex. 4 speak of a deed of settlement (Ex. 2) executed and registered on February 9, 1958, between Asim Krishna Dutt as settlor and Asoka Krishna Dutt and Manjul Mitter as trustees of a trust being created in respect of the premises No. 6, Free School Street (hereinafter mentioned only as suit premises). The trustees would make over the suit premises to the new lessor Sm. Asoka Dutt (Ghosh), daughter of Asim Krishna Dutt, after she would attain the age of 25 years. Hereinafter she would hold and enjoy the suit premises absolutely. The lessee Ganesh Das Mimani died on or about April 18, 1965, after having made and published his last Will and Testament dated February 3, 1965. Testator Ganesh Das appointed Sm. Brij Kumar Devi Mimani and Sankarlal Mimani, the executrix and the executor respectively, and they obtained the probate of the aforesaid will from the Calcutta High Court on February 18, 1966. By the said Will Ganesh Das Mimani gave and bequeathed all his self-acquired properties including his leasehold interest in the suit premises to his heirs in accordance with the provisions of the Hindu law. Ganesh Dass died leaving three sons, Sankar Lal Mimani. Badri Das Mimani and the lessee Krishna Kumar Mimani. The executor and the executrix had in course of administration of the estate of Ganesh Das Mimani made over the suit premises to the lessee. In the circumstance Krishna Kumar Mimani became entitled to the self-acquired properties and the lease-hold interest of Ganesh Das in the suit premises. On the lessor the said Sm. Asoka Ghosh attaining the age of 25 years, the aforesaid trustees, viz. Asoke Krishna Dutt and Manjul Mitter handed over the suit premises to the lessor in pursuance of the terms of the deed of settlement dated February 9, 1958. By registered deed of release (Ex. 1) dated December 29, 1971, the said trustees declared that they had made over the suit premises to the lessor (Asoka Ghosh). Thus the new lessor (Asoka Ghosh) became the absolute owner of the suit premises and Krishna Kumar Mimani became the lessee for the unexpired period of the term granted in the deed of lease (Ex. 3). The lessee now desired to surrender the lease to the lessor on payment by the lessor to the lessee a sum of Rs. 45,000 for the residue of the said term of 51 years of the lease. The lessor also agreed to such surrender on payment of the aforesaid sum. In this way the lease was agreed to be surrendered free from encumbrances but with the sub-tenants thereof. A list of such tenants and their respective rents paid as per English calendar month and accommodation in their respective occupation was also annexed thereto. The aforesaid sub-tenants of the said premises attorned to the Plaintiff and became tenants for their respective accommodation as mentioned in the aforesaid deed of surrender of the lease (Ex. 4).

On the above background we are to determine whether the Defendant has sub-let the suit premises thereby rendering itself liable to be evicted there from. The learned Counsel for the Defendant/Respondent has contended that all the tenants living in the suit premises were inducted prior to the surrender with express consent of the original lessor, and the company has not inducted any sub-tenant after surrender. The learned Counsel has referred to a letter to the Defendant purportedly granting permission to sub-let a portion of the premises occupied by the company. This letter was marked Ex. B in the tidal Court. The learned Counsel has further submitted that the sub-tenants were there from before on the strength of this written consent. However, the learned Counsel for the Appellant has submitted that this letter is not a genuine one and it was fabricated. by the Defendant for the purpose of the suit. Considering that Krishna Kumar Mimani who would have been the best person to vouch for the genuineness of this letter was not examined by the Respondent, we find it very difficult to put any great value to it. But then the learned Counsel for the Appellant has submitted that even if this letter of consent is a genuine one, it will not affect the right of the Plaintiff even if the sub-tenants were inducted into the suit premises before or after surrender of the lease or during the subsistence of the lease.

As per prevision of Section 108, Clause (j) of the Transfer of Property Act the lessee may sub-lease the whole or any part of his interest in the property. As per provision of Section III, Clause (e) of the Act a lease may be surrendered in a case where the lessee yields up his interest under the lease, i.e. by express surrender. As per provision of Section 115 of the Act the surrender, express or implied, of a lease of immoveable property does not prejudice an under lease of the property or any part thereof previously granted by the lessee.

From the list of sub-tenants, as appended to the deed of surrender (Ex. 4), it is seen that the Defendant company was a sub-tenant under Krishna Kumar Mimani. Following the surrender on February 19, 1976, the Defendant company became a tenant directly under the Plaintiff. The fact that the Defendant company attorned to the Plaintiff is admitted by the Defendant.

Learned Counsel for the Defendant/Respondent has cited M.S. Ram Singh Vs. Bijoy Singh Surana and Another, wherein the sub-lessee''s status after surrender came up for discussion. It was held, in conformity with the provision of Section 115 that the sub-lessee would become lessee directly under the lessor by operation of statute. By citing this ruling the learned Counsel contended that the Defendant company could not be evicted from the suit premises even though the lease was surrendered by the former lessee.

According to the learned Counsel, a decree of ejectment may be made against the Defendant company only if it can be shown by the Plaintiff that the Defendant has inducted sub-tenant without the consent of the Plaintiff. According to him, the Plaintiff has failed to discharge her burden in proving this fact. He has contended that a few persons found in the suit premises are the employees or ex-employees of the Defendant company and it cannot be said that they have been staying there illegally. The learned Counsel has pounced upon the evidence of P.W. 1 and has submitted that P.W. 1 has failed to give convincing proof that the Defendant has inducted sub-tenants. We have seen that a portion of the evidence of P.W. 1 was recorded in question and answer form. One question was, "What did the Defendant do when it became the tenant under the Plaintiff in respect of the suit premises?" The answer was, "In July 1976 sub-tenants were inducted into the tenancy premises and a complaint was made with the Officer-in-Charge, Park Street P.S." (copy of the complaint was also produced in Court and was marked ''X'' for identification). Another question was, "Was any sub-tenant in the premises inducted after the surrender of the tenancy by Krishna Kumar Mimani?" The reply was, "Yes, one Barun Chandra". Referring to the aforesaid evidence, the learned Counsel for the Defendant has submitted that such a subtenant named Barun Chandra is not to be found in the suit premises. But P.W. 2 Bal Krishna Misra, an employee under the Plaintiff has deposed that he is the caretaker in respect of the suit premises and he visited the same. He stated that one Barun Chandra was occupying a room on the road-side of the third floor of the suit premises since May/June 1976 as bharalia under the Defendant. Of course, in his cross-examination he stated that there was nothing except his word of mouth to show that Barun Chandra was occupying a room on the third floor. P.W. 3 Sri Subrata Kumar Bose is the Advocate Commissioner. He executed the writ and held the inspection and submitted the report (Ex.11). His report shows that the said Barun Chandra and several others have been occupying different rooms of the disputed premises. His report appears to have been based upon what he had heard from a number of ladies present in some of those rooms and, hence, on this point, his report cannot be accepted and acted upon. Be that as it may, it appears that several other persons are also occupying various rooms in the suit premises. According to the learned Counsel for the Respondent no person in the name of Barun Chandra is there and out of the other occupants some are employees and others are ex-employees of the Defendant company and, therefore, the question of sub-letting by the Defendant company does not arise at all.

But the onus lies heavily on the Defendant to show that the said persons are either the employees or the ex-employees under the company. In this regard the evidence of D.W. 1 Shib Narain Kothari is worth mentioning. From his cross-examination, it appears that out of ten rooms of the disputed premises only two are being used for office purposes. He admits that three persons of the name of Raman Kothari, Ram Gopal Kapoor and Baleswar Upadhyaya are occupying three rooms of the disputed premises at present, but he asserts that they have been doing that as ex-employees of the Defendant concern. It was suggested to him that Tarakeshwar Upadhyaya, Mohan Chand Kapoor, Barun Chandra, C.P. Keshari and Hitendra Ram Chandrani have also been possessing different rooms of the disputed premises as sub-tenants. The witness refused to accept the suggestions. He was asked as to whether the Defendant company maintained a register of its employees. His answer was in the affirmative, but when he was asked whether the same was produced before the Court, his answer was in the negative.

So we find that the best evidence as to the names of the employees and ex-employees of the Defendant company which was available with them, was withheld. Section 106 of the Evidence Act lays down that when any fact is within the special knowledge of any person, the burden of proving the fact is upon him. A legitimate presumption, therefore, arises u/s 114 of the Evidence Act that had the register been produced, it would have shown that the names of the occupants of the suit premises, as mentioned by D.W. 1, were not to be found there.

Assuming for sake of argument, but not conceding the fact that there are persons other than employees and ex-employees in the suit premises, the learned Counsel for the Respondent has submitted that the burden is on the Plaintiff to prove that those some other persons have been staying in the suit premises for consideration. In support of this line of argument, the learned Counsel has relied on the decision of the Supreme Court in Deepak Banerjee v. Lilabati Chakraborty AIR 1981 S.C 2055 wherein it was'' observed that in order to prove tenancy or sub-tenancy two ingredients had to be established, firstly, the tenant must have exclusive right of possession or interest in the premises or part or the premises in question and, secondly, that right must be in lieu of payment of some compensation or rent.

Learned Counsel for the Respondent referring to the above observation has submitted that the Plaintiff has failed to prove that there was any parting of possession by the Defendant company and payment of some compensation or rent.

This submission of the learned Counsel for the Respondent has been forcefully countered by the learned Counsel for the Appellant by citing three other rulings of the Supreme Court, in Southern Command Military Engineering Services Employees Coop. Credit Society Vs. V.K.K. Nambiar (Since Deceased) By Legal Representative Madhvi Devi, , Rajbir Kaur and Another Vs. S. Chokesiri and Co., and Roop Chand Vs. Gopi Chand Thelia, . In the case of Southern Command M.E.S. the Commissioner mentioned in his report that the demised premises were occupied by strangers and not by the tenant, and the Supreme Court held that this finding of the Commissioner raises an inference of sub-letting. In the case of Rajbir Kaur (Supra) the landlord established the exclusive possession of the subtenant but the landlord could not conclusively prove any transaction of money between tenant and the sub-tenant. The explanation of transaction by the tenant was found not satisfactory. Under the circumstances, it was held that an inference that transaction was entered into for monetary consideration was permissible. In Roop Chand''s case (Supra) a club was allowed to function in the leased premises by the tenant and the Board carrying the name of the club came up to be exhibited in the premises and it was admitted that the members of the club assembled in the premises every day and played cards and other indoor games from evening till about the midnight. It was also found that the club was registered as a company and had its registered office in the leased premises. Under the circumstances it was held by the Supreme Court that there was parting with possession against monetary consideration.

In the instant case before us, the sole witness for the Respondent mentioned the names of at least three of the occupants of the suit premises. He claimed that they were not sub-tenants but ex-employees of the Defendant company. We have already observed that the burden by on the Defendant to prove this fact, and on its failure to do so, an adverse presumption could be drawn against it. We find that the Plaintiff has been able to establish the fact of exclusive possession of those persons mentioned by D.W. 1 in his evidence. From the fact thus proved, a legitimate inference may be drawn that the suit premises or part of it was sub-let for monetary consideration, without the permission of the Plaintiff-landlord.

In view of our findings on the points of notice and sub-letting, it seems unnecessary to discuss the point of unauthorized construction resulting in violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act.

The result is that the appeal succeeds and the same is allowed on contest with cost. The judgment and decree appeal against are hereby set aside. The suit stands decreed on contest with cost. The Respondent company is hereby directed to deliver vacant possession of the disputed premises to the Appellant within three months from this day, provided the Respondent company goes on depositing an amount equivalent to the rent month after month regularly with the learned Court below--amount payable for a month being deposited with 15th of the month following. In default, on expiry of three months from this day, the Appellant will be at liberty to recover possession of the disputed premises by putting this decree to execution.

S.S. Ganguly, J.

I agree.

Appeal allowed.