Hari Narayan Shaw and Others vs Sunil Kumar Ghosh

Bijitendra Mohan Mitra, J.—The present Appeal is directed against a Judgment of affirmance dated 9th November, 1989 passed by the Additional District Judge, 4th Court, Burdwan in Title Appeal No. 231 of 1988 confirming the judgment and decree passed by the 2nd Court of Munsif at Burdwan dated 29th November, 1938 in Title Suit No. 247 of 1983. The defendant-tenants are appellants before this Court. The plaintiff respondent filed a connected suit in a capacity as the owner of the suit property and the said suit is for eviction of the defendants therefor. Two defendants have been impleaded in the said suit and in paragraph 4 of the plaint the defendant No. 2 has been specifically described as a tenant under the plaintiff. A notice u/s 13(6) of the West Bengal Premises Tenancy Act has been issued against both the defendants Section 13(6) of the West Bengal Premises Tenancy Act contemplates that the said notice has to be given to the tenant by laying stress on the tenant. The term tenant has been defined in Section 2(h) of the said Act which means any person by whom or on whose account or behalf the rent of any premises is or but for a special contract would be payable. The rental of the premises is at the rate of Rs. 30/- per month payable according to the English Calendar month. The further version of the plaintiff in the plaint is that the Defandant No. 1 is a son of the Defendant No. 2 and when the Defendant No. 1 was the minor, the Defendant No. 2 approached the plaintiff for letting out the suit premises and as such the said defendant was inducted as a tenant though the receipts were used to be granted in favour of the Defendant No. 1 at the request of the Defendant No. 2. The suit was contested and on filing of pleadings there are as many as ten issues were framed by the Trial Court. The suit is filed on the ground of default and reasonable requirement. It is significant to mention in this context that apart from framing of the issues on the merit of the case relating to the grounds specified u/s 13(1) of the West Bengal Tenancy Act, three issues framed namely, (a) about the maintainability of the suit, (b) whether the defendants are the tenants: (c) if the notice is legal and valid and whether it has been served on the defendants.

The Trial Court on a contested hearing of the suit decreed the same as a result of which plaintiff became entitled to a decree for recovery of khas possession of the suit premises on eviction of the defendants and also for other ancillary reliefs. Against that, an appeal being Title Appeal No. 231 of 1988 was preferred and the same on being transferred was heard and disposed of on contest by the 4th Court of Additional District Judge at Burdwan and the Appeal Court dismissed the said appeal. At the penultimate portion of the concluding part of the judgment under appeal, the Appeal Court has saliently observed that excepting the point urged in the appeal, no other point has been urged before the Appeal Court: In the present Memo of Second Appeal a ground was taken about due service of the notice.

Mr. Bhaskar Bhattacharyya, the learned Advocate appearing on behalf of the appellants, has drawn the attention of this Court to the relevant recitals in the pleadings, namely, paragraph 4 of the plaint and according to him as per plaint case the plaintiff has asserted Defendant No. 2 as the tenant under the plaintiff. Nevertheless, a notice which is supposed to be the foundation of a suit for eviction has been served on both the defendants and the same continues to remain as the foundation of the suit. Mr. Bhattacharyya has further drawn the attention if this Court from the evidence of P.W. 1 who in his examination-in-chief has stated that though Monilal Shaw took the tenancy of the suit premises yet the said P.W. 1 used to grant receipt in favour of his son Harinarayan Shaw at the request of Monilal. His definite case in examination-in-chief was that Monilal took the tenancy of the suit premises and he was the tenant. In cross-examination the same witness has detracted from his version in the examination-in-chief and he has categorically stated that Monilal was not his tenant. According to Mr. Bhattacharyya, there is apparent discrepancy with regard to the version of the plaintiff in his deposition and his stand taken in examination-in-chief is not reconcilable with the stand taken in cross-examination. Mr. Bhattacharyya has further made emplatic thrust in his argument that there is apparent variance between the pleading and proof in this case According to him. in a suit for eviction the case made out in the plaint is required to be proved by the plaintiff and the contract that was pleaded was different from the one that was proved in evidence. In this context. Mr. Bhattacharyya has referred to a decision of this Court in the case of Parekh Brothers Vs. Kartick Chandra Saha and Others, . Mr. Bhattacharyya then drew the attention of this Court with regard to the finding recorded by the Appeal Court that Defendant No. 2 was the real tenant in respect of the suit premises. According to Mr. Bhattacharyya that even taking the said finding on the face value, no decree of eviction can be passed because the entire super structure of the suit was founded on a notice u/s 13(6) of the West Bengal Premises Tenancy Act. The landlord is required to serve the tenant with the notice and not to anybody else because the tenancy will stand terminated on expiry date of the notice by making relationship between landlord and tenant. Mr. Bhattacharyya strongly contended that in the wake of the said finding of fact by the final Court of fact, no decree of eviction can be passed in a suit or proceeding for recovery of possession under the West Bengal Premises Tenancy Act. Mr. Bhattacharyya has further argued that in view of the specific plea taken by the P.W. 1 in his evidence that defendant No. 2 is not his tenant, such finding on the face of it is erroneous. Mr. Bhattacharyya has been emboldened enough to assert that piece of finding as perverse. The Court is made to wonder as to what is meant by the legal connotation of the expression perverse without being influenced by etymological significance. A finding can be said to be perverse if the same is arrived at by conscious non-application of law or because of blind-folded approach taken to a given set of fact. Mr. Bhattacharyya made the grievance that the rinding was contrary to evidence on record of P.W.1, the plaintiff, that defendant No. 2 was not the tenant under the plaintiff. According to Mr. Bhattacharyya the said finding is not sustainable in the eye of law. While dealing with that question the further question that has cropped up as to what is meant by substantial question of law as introduced under the amended provision of CPC on construction of Section 100 of the Code of Civil Procedure. There has been an elaborate judgment delivered by a recent Full Bench of this Court reported in the case of Ratanlal Bansilal and others Vs. Kishorilal Goenka and others, . Mr. Bhattacharyya by placement of reliance on the aforesaid judgment has strongly contended that the judgment under challenge is liable to be interfered with because substantial question of law are involved. According to Mr. Bhattacharyya. in view of positive embargo contemplated under the Statute as a result of which Court is prevented from passing a decree of eviction on any of the grounds as specified u/s 13(1) excepting the grounds mentioned in Clauses J & K unless it is preceded by a requisite period of proper notice u/s 13(6). The said notice is a foundation of the superstructure of a suit for eviction and if the notice is otherwise bad in law the superstructure will be denuded of the basis of foundation.

Mr. Asoke Sengupta. the learned Advocate appearing on behalf of the respondents, has first of all drawn the attention of this Court to the scope of the purview of the scrutiny in this Second Appeal in view of abandonment of the salient issues excepting the point specifically raised before the Court of Appeal. According to Mr. sengupta, Mr. Bhattacharyya should not be allowed to travel beyond the same and he further contended that the finding recorded with regaru to the pertinent issue of reasonable requirement and default has not been challenged before the final Court of fact and as such those grounds are no longer germane for the purpose of determination of the present controversy. Mr. Sengupta about the legality of the notice has relied on the landmark decision in the case of Harihar Banejee & Ors. v. Ramashi Roy & Ors. reported in 23 C.W.N. 77 in order to reiterate that notice to quit though not strictly accurate or consistent may be good and effective in law. The test of the sufficiency is not as to what it will mean to a stranger, ignorant of all facts but what bearing it will have on tenants who are presumbly conversant with all the facts and circumstances. The ratio of law as expounded in the said decision is that in-accuracy of the notice would not have any harmful bearing, namely, misdescription and other pertinent factors provided they are served on the tenant who is supposed to be conversant with the same. Here, the question is that as to whether the notice has been given to the tenants or to others by way of subterfuge. Notice being required to be strictly served on the tenant, the same is illustrative of jural relationship as reflected in the notice between the parties as landlord and tenant. In the wake of the same the question of detemiination as to whether the defendant No. 2 is the tenant under the plaintiff or not assumes pivotal significance. The notice unambiguously indicate that jural relationship which has been sought to be asserted is firstly between the plaintiff and the two defendants and secondly from the pleading between the plaintiff and the Defendant No. 2. The plaintiff also got shaken in cross-examination as he detracted from his original evidence in examination in Chief. The same appears to have eroded into the very vital not only of the foundation of the suit being the notice itself but also does not know as to between whom the real jural relationship stand as landlord and tenant. The plaintiff is found faultering and his entire course of conduct is vitiated by inconsistency not only in the present notice but also on earlier notice on which a prior suit was filed where only one person was described and attempted to be impleaded as landlord. The entire gamut of the record with the earlier proceeding, ejectment notice, pleading and plaintiffs evidence seem to have created an alter of confusion and it becomes very difficult to discern who is the landlord of the plaintiff. The finding as such recorded by the final Court of fact is contrary to the version of P.W. 1 which smacks of blind-folded approach to evidence on record and also conscious non-application of known principle of law as to whether on the basis of the impugned notice of eviction the present suit can be founded upon. The present suit apparently seems to be founded on a tottering structure on defective notice and jural relationship also do not seem to have been proved on the available materials. In view of legal embargo contemplated u/s 13(6) of the West Bengal Premises Tenancy Act. no Court can pass a decree of eviction of a tenant on the ground of Section 13(1) (ff)and 1(i) of the West Bengal Premises Tenancy Act unless it is preceded by and/or founded upon a valid notice to quit on being served on the tenants in accordance with the letter and spirit of Section 13(6) of the West Bengal Premises Tenancy Act. The said points looked large in the horizon of controversy as substantial questions of law and this Court cannot uphold the finding of the final Court that Defendant No. 2 was the real tenant and notice under question cannot be a touch stone on which a decree of eviction may be passed under the provisions of the West Bengal Premises Tenancy Act. As such the impugned judgment and decrees of both the Courts below are set aside and the instant Second Appeal is allowed.

There shall, however, be no order as to casts.