Dasarath Prosad Shaw vs Ramdhari Jadav

Bhaskar Bhattacharya, J.—This second appeal is at the instant of a tenant/Defendant in a suit for eviction on the ground of default in payment of rent and is directed against the judgment and decree dated June 29, 1987 passed by the learned Assistant District Judge, 10th Court, Alipore in Title Appeal No. 113 of 1987 thereby affirming those dated November 26, 1986 passed by the Learned Munsif, 3rd Court, Alipore in Title Suit nc. 87 of 1974.

The Respondent filed the aforesaid suit for eviction of the appelant, a tenant, on me sole ground of default in payment of rent after giving a notice u/s 13(6) of the West Bengal Premises Tenancy Act (''Act'').

The Appellant after entering appearance in the suit filed an application under Sections 17(2) and 17(2A) of the ''Act'' but the Learned Trial Judge dismissed the said application as barred by limitation.

Ultimately the Learned Trial Judge decreed the suit on the sole ground of default as the Appellant could not avail of the benefit u/s 17(4) of the ''Act'' by complying with the provisions of either Sections 17(1), 17(2) or 17(2A) of the ''Act''.

Being dissatisfied, the Appellant preferred an appeal but the said appeal has been dismissed by the learned first appellate court below.

Being aggrieved, the tenant has preferred the instant second appeal.

There is no dispute that the Respondent was a thika tenant in respect of suit property and the Appellant was a bharatia under him. In view of such admitted fact, the tenancy of the Appellant at the time of filing of the suit was governed not under the provision of the ''Act'' and as such by simply determining the tenancy by giving a notice u/s 106 of the Transfer of Property Act, the Respondent could get a decree for eviction. Inspite of the aforesaid fact, the Respondent for the reason best known to him filed the present suit by treating the Appellant as a tenancy under the ''Act'' and the courts below also proceed accordingly.

In the meantime, during the pendency of the suit, the Calcutta Thika Tenancy (Acauisition and Regulation) Act, 1981 (''1981 Act'') came into force from January 1982 and in view of Section 9 thereof the tenancy in question was governed under the ''Act'' with effect from January, 1982.

Although at the time of admission under Order 41 Rule 11 of the Code, this appeal was admitted on different grounds, Mr. Das, the Learned Advocate appearing for the appelant sought permission to take additional grounds that in view of the aforesaid admitted fact the suit was not maintainable and that no decree could be passed without giving an opportunity to file fresh applications under Sections 17(1), 17(2) or 17(2A) of the ''Act'' after January, 1982 when ''Act'' was made applicable by virtue of Section 9 of ''1981 Act''.

Since the questions raised by Mr. Das are substantial questions of law requiring investigation of no new fact, this Court permitted the Appellant to take such additional points by exercising the power conferred under the proviso to Section 100(5) of the Code and accordingly the additional grounds were formulated and the matter was adjourned for a week to enable the learned advocate for the Respondent to answer the new points.

Mr. Dey, the Learned Advocate appearing on behalf of the Respondent did not dispute that in view of the Division Bench decision of this Court in the case of Universal Trading Co. Vs. Prafulla Kumar Sarkar and Another, his client wrongly described the Appellant as a tenant governed by the ''Act'' in the plaint and that there was no necessity of giving a notice u/s 13(6) of the ''Act''. Mr. Dey frankly concedes that his client at the time of institution of the suit in the year 1974 was under no obligation to prove existence of any of tie grounds mentioned in Section 13(1) of the ''Act''.

Mr. Dey, however, contends that the ''Act'' having been made applicable from January 1982, the suit became a regularly instituted suit from that point of time and as such the Appellant was under obligation to file an application under Sections 17(1) or 17(2) of 17(2A) of the ''Act'' within one month from the date of coming into operation of ''1981 Act'' in order to avail the benefit of Section 17(4) of the ''Act''.

I, however, do not find any substance in the aforesaid contention of Mr. Dey for the simple reason that the present suit filed by the Respondent was not maintainable after January, 1982 when by virtue of Section 9 of ''1981 Act'', the ''Act'' was made applicable. Moreover, a tenant is under obligation to file applications under Sections 17(1), 17(2) or 17(2A) of the ''Act'' only in a properly constituted suit filed against a tenant under the ''Act''.

The law is now settled that in order to evict a tenant governed by the ''Act'', a landlord must prove any of the grounds referred to in Section 13(1) of the ''Act'' in a regularly constituted suit and filing of such should be preceded by a valid notice u/s 13(6) of the ''Act''. The present suit was filed on March 25, 1974 after giving a socalled notice u/s 13(6) of the ''Act'' in the month of November, 1973 when admittedly tenancy was not governed under the ''Act'' and as such the said notice cannot be treated as a notice u/s 13(6) of the ''Act''. Therefore, in the present suit no relief can be granted to the Respondent. The Respondent, as indicated earlier, in order to evict a tenant governed under the ''Act'' must file a suit after giving a valid notice u/s 13(6) of the ''Act'' and such a notice can only be served when there is existing relationship of landlord and tenant under the ''Act''. Over and above, the suit was not filed against a tenant under the ''Act''.

Therefore, the judgment and decree passed by the courts below were passed in a suit which was not proceeded by a valid notice u/s 13(6) of the ''Act''.

In view of my aforesaid finding the other questions raised by Mr. Das are not required to be answered.

The appeal is allowed. The judgment and decree passed by the courts below are set aside. There will be however, no order as to costs.