Karam Chand Thapar and Bros. Pvt. Ltd. vs A.B. Guzral

A.C. Sen, J.—The present second appeal is directed against the judgment and decree dated May 25, 1962, passed by the Subordinate Judge in Title Appeal No. 1612-of 1961 in the Tenth Court of the Subordinate Judge, Alipore, affirming the judgment and decree passed on September 30, 1961, by the Munsif in Title Suit No. 239 of 1960 in the Court of the First Additional Munsif at Alipore. The appeal arises out of a suit for ejectment under the West Bengal Premises Tenancy Act and the Plaintiff landlord is the Appellant before us, the suit having been dismissed by both the Courts below.

The facts of the case are as follows: The Plaintiff is a private limited company. The Plaintiff''s case is that the Defendant Was allowed to occupy the suit premises as an employee of the Plaintiff and that the Defendant agreed to vacate the suit premises within the fifteen days of his being relieved from the service of the Plaintiff. According to the Plaintiff, though the Defendant voluntarily resigned from his service on September 7, 1950, he refused to vacate the suit premises in violation of the aforesaid agreement. The Plaintiff has asserted in the plaint that the suit premises are also reasonably required by the Plaintiff company for the accommodation of other employees. The present suit has been instituted as the Defendant continued in occupation of the suit premises in spite of the notice to quit containing a threat of suit served upon the Defendant asking the Defendant to vacate the suit premises with the expiry of the month of March 1960.

The Defendant has stated in the written statement that he holds the suit premises in his individual capacity and not as an employee of the Plaintiff company, that the agreement referred to in the plaint was obtained by undue influence, fraud and misrepresentation, that the Plaintiff company has no reasonable requirement of the suit premises of the accommodation of other employees and that no notice to quit was ever served upon him.

Mr. Mitter appearing on behalf of the Plaintiff Appellant company contends that the Plaintiff is entitled to obtain a decree for ejectment under Clause (g) of Section 13(1) of the West Bengal Premises Tenancy Act, 1956. Clause (g) provides that a decree for ejectment can be passed where the premises were let out to the tenant for use as residence by reason of his being in the service or employment of the landlord and the tenant has ceased...to be in such service or employment.

Let us first of all see whether the materials on record are sufficient to establish that the disputed premises were let out to the Defendant by the Appellant company for use as residence by reason of his being in the service of the Appellant company.

In para. 1 of the plaint it has been stated that the Defendant (Respondent) was employed by the Plaintiff company (Appellant). Paragraph 2 of the plaint says, that the disputed flat is meant for the accommodation of the Plaintiff''s employees. In para. 3 of the plaint it has been alleged � that in connection with and by reason of the Defendant being in the service of the Plaintiff, the Defendant was in occupation of flat No. 29 in the second floor of premises No. 94 Russa Road, now numbered as 163 Dr. Shyama Prosad Mukherjee Road, known as ''Mohini Mansion'' within p.s. Tollygunge as a tenant under Plaintiff at a monthly rent of Rs. 55 per month which was payable according to English calendar month and on terms and conditions of written agreement between the Plaintiff and the Defendant.

In para. 4 of the plain it has been stated that by the said agreement, the Defendant agreed that in the event of the Defendant leaving�his job under the Plaintiff company or under companies under management of the Plaintiff company for any reason whatsoever the Defendant would vacate the said flat in suit within 15 days from the date the Defendant would be relieved of his duties and the Defendant would deliver vacant possession of the flat in suit peacefully to the Plaintiff.

In para. 5 of the written statement the Defendant has denied that the flat-in-suit is meant for the accommodation of the Plaintiff''s employees or that the Defendant was in occupation of the said flat in connection with or by reason of his being in the service of the Plaintiff. His case as made out in the said paragraph is that he first occupied flat No. 18 in the said premises as an independent tenant on July 29, 1944, and stayed there until August 10, 1946; that on the next day, in August 1, 1946, he shifted to the flat-in-suit as it Was more suitable for his occupation; that since his occupation of flat No. 29 he has been regularly paying rent irrespective and independent of his employment under the Plaintiff; and that the possession of the flat-in-suit had never any connection or concern with his service under the Plaintiff.

In para. 6 of the written statement the Defendant has denied that he ever agreed to vacate the flat-in-suit within fifteen days of his being relieved of his service under the Plaintiff. He has averred that the said stipulation is invalid, illegal and opposed to public policy. He has further contended that his service agreement with the Plaintiff company dated January 1, 1944, did not contain any such stipulation and that the alleged agreement being vitiated by undue influence, misrepresentation and fraud the Plaintiff to estopped from taking advantage of any such alleged agreement.

Exhibit B(3) is the rent receipt granted on June 20, 1947, by Karam Chand Thapar and not by Karam Ghand Thapar & Bros. Private Limited in respect of the flat No. 29. The subsequent rent receipts, granted by Karam Chand Thapar, being Exs. B(4) to B(6) are for the subsequent months. Exhibit B(6) is for the month of November 1947. It is, therefore, clear that during these months the Defendant was the tenant of Karam Chand Thapar and not of the Plaintiff, namely Karam Chand Thapar & Bros. Private Limited.

The original rent of the flat was Rs. 45 per month; thereafter on the application of Karam Chand Thapar the rent was increased to Rs. 55 with effect from March 1, 1947: vide Ex. C(l).

The building known as Mohini Mansions to which appertains the disputed flat No. 29 appears to have been purchased from Karam Chand Thapar by the Indian City Properties Ltd. sometime before March 1, 1948. This fact was intimated to the Defendant by a letter dated March 1, 1948, written on behalf of Karam Chand Thapar and the said letter has been marked as Ex. C(3). The text of the letter is quoted below.

Re: Flat No. 29 Mohini Mansions occupied by you-Dear Sir, This is to give you notice that the property known as ''Mohini Mansions'' of 94, Russa Road, Calcutta, has been transferred to the Indian City Properties Ltd., 5, Royal Exchange Place, Calcutta, but by an arrangement with the said company tenancy of all flats occupied by the staff of any of my concerns has been transferred to the parent firm Karamchand Thapar & Bros. Ltd. and you are as such requested to pay all rents which have become due and hereafter will become due from you for or in respect of the said premises to Messrs Karamchand Thapar & Bros. Ltd.

I am sending you herewith a fresh letter of tenancy with Messrs Karam Chand Thapar & Bros. Ltd. to replace the one existing between us and would request you to forward the same duly signed and completed at a very early date.

This letter purports to say that the tenancy of all flats occupied by the staff of any of the concerns of Karam, Chand Thapar has been transferred to Karam Chand Thapar & Bros. Ltd., that is to say, to the Plaintiff-Appellant. Karam Chand Thapar wrote this letter in his personal capacity. When he says ''my concerns'' he certainly does not mean concerns of which he is the sole proprietor.. The Defendant at that time was in the service of a limited company. Karam Chand Thapar could not be regarded as the sole proprietor of that limited company. It appears he was the managing agent of the Karam Chand Thapar group of limited companies. But a managing agent of a company is not the proprietor of that company. Hence, by the words ''my concerns'' he certainly meant the limited companies of which he was the managing agent.

By the above letter, Ex. C(3), Karam Chand Thapar informed the Defendant that his tenancy along with the tenancy of other flats occupied by the staff of the Karam Chand Thapar group of limited companies had been transferred to Karam Chand Thapar Brothers Private Limited by arrangement with the Indian City Properties Ltd., purchaser of the Mohini Mansions. It is difficult to understand how the tenancy of the Defendant could be assigned to Karam Chand Thapar Sk Bros. Private Limited by the landlord, Karam Chand Thapar. The building known as the Mohini Mansions was not purchased by Karam Chand Thapar & Bros. Private Limited. Karam Chand Thapar in his personal capacity was not in a position to create an intermediate lease in favour of Karam Chand Thapar & Bros. Private Limited because his right title and interest in the Mohini Mansions vested in the Indian City Properties Ltd. prior to the date of this letter. Karam Chand Thapar & Bros. Private Limited cannot demand rent from the Defendant on the strength of this letter, Ex. C(3), which cannot be regarded as a letter of adornment.

Exhibit 1(b) is a letter written by Karam Chand Thapar & Bros. Private Limited to Indian City Properties Ltd. The letter is dated February 20, 1948. The subject-matter of the letter is Mohini Mansions to which appertains the disputed flat No. 29. The text of the letter is as follows:

We have to place on record the arrangement made by us with Lala Karam Chand Thapar that all the flats in the said premises in respect of which we are the tenants and which are in occupation-of our employees shall continue to be so till we desire to discontinue the tenancies....

We understand that...you purchased the said premises with full knowledge of our said arrangement and that you are bound by the same.

The Defendant was not the tenant of Karam Chand Thapar & Bros. Private Limited before the sale of Mohini Mansions to the Indian City Properties Ltd. He was the tenant of Karam Chand Thapar. This letter too does not lead to the inference that after the purchase of Mohini Mansions by Indian City Properties Ltd. the Defendant became the tenant of Karam Chand Thapar & Bros. Private Limited.

Exhibit 1(c) is the letter dated February 20, 1948, written by Indian City Properties Limited to Karam Chand Thapar & Bros. Ltd. regarding Mohini Mansions. The relevant portion of the letter runs thus:

We confirm that we have purchased the said premises from Lala Karam Chand Thapar subject to your arrangement with him that all the flats in the said premises in respect of which you are the tenants and which are in the occupation of your employees shall continue to be so till you desire to discontinue the tenancies....

As Karam Chand Thapar 8c Bros. Limited was not the tenant of Karam Chand Thapar in respect of flat No. 29, this letter too cannot give rise to the inference that the Defendant became the tenant of Karam Chand Thapar & Bros. Private Limited after the purchase of, Mohini Mansions including flat No. 22 by Indian City Properties Ltd.

P.W. 1 is the principal witness examined on behalf of the Plaintiff. He has stated in his examination-in-chief that Messrs K. C. Thappar Private Ltd. were formerly managing agents of Messrs Indian City Properties Ltd. He has not said that K. C. Thappar Private Ltd. has ceased to be the managing agents of Indian City Properties Ltd. It may be taken that at all material times K. C. Thappar Private Ltd. were the managing agents of Indian City Properties Ltd. He has not said that K. C. Thappar Private Ltd, is a company different from K. C. Thappar & Bros. Private Limited. From the trend of his deposition it is clear that by K. C. Thappar Private Limited he meant Karam Chand Thappar & Bros. Private Limited, namely the Plaintiff Appellant before us. He has said that there was an arrangement made between the Plaintiffs and Indian City Properties Ltd. at the time of purchase that all the flats occupied by their staff under the managing agency firms would be held by the Plaintiffs for their staff and that there are letters to that effect. This is not corroborated by the documentary evidence on record. We have already referred to the two letters, both dated February 20, 1948, marked respectively as Exs. 1(b) and 1(c), one written by Karam Chand Thapar & Bros. Private Limited to Indian City Properties Ltd. and the other by Indian City Properties Ltd. to Karam Chand Thapar & Bros. Private Limited, and P.W. 1 certainly referred to these two letters when he said that there were letters to that effect. These two letters, as already pointed out, merely indicate that Karam Chand Thapar & Bros. Private Limited would continue to be the tenant under Indian City Properties Ltd. of the flats which Karam Chand Thapar & Bros. Private Limited held as tenant under Karam Chand Thapar. So far as flat No. 29 is concerned, it was held by the Defendant as the tenant of Karam Chand Thapar and not by Karam Chand Thapar & Bros. Private Limited immediately before the purchase of Mohini Mansions together with flat No. 29 by Indian City Properties Ltd.

As to the Defendant and as to flat No. 29 he, that is, P.W. 1 has said this:

I know the Defendant since 1944-45. He puts" up at flat No. 29 of the Mohini Mansion. The Defendant was there as the flat was allotted to him as an employee. He used to pay rent to the Plaintiff company for the flat. There is a writing to show what was the agreement between the Plaintiff company and the Defendant... This is a type-written letter signed by the Defendant himself. I know his signature. (Ex. 1)

He has not said anything as to the tenancy of the Defendant in respect of flat No. 29 under Karam Chand Thapar immediately before the sale of Mohini Mansions to Indian City Properties Ltd. According to P.W. 1, the Defendant was there, that is to say, in flat No. 29, as the flat was allotted to him as an employee. He has not said who allotted the flat to the Defendant or under whom the Defendant was an employee. He has not said anything as to the previous: tenancy of the Defendant under Karam Chand Thapar.

P.W. 1 has said that the Plaintiff company was to pay rent to Indian City Properties Ltd. for the flats occupied by the staff of the Plaintiff company - and that the Plaintiff company has filed receipts therefore. Certain rent bills have been filed on behalf of the Plaintiff company and they have been proved by P.W. 2, the accountant of Indian City Properties Ltd. P.W. 2 joined service under the Plaintiff company in March 1956 and he has no personal knowledge of the transactions relating to the rent bills.

Exhibit 3 is a bound book with paper-back containing the counterfoils of the bills purported to have been sent to the tenants in 1951 and 1952. It does not appear to have been kept in the regular course of business. Counterfoil of the bill for flat No. 19 is blank save that it contains the name of the tenant, number of the flat and the serial number. Material particulars are not there, nor is it signed'' by anybody. Counterfoil of flat No. 10 is unsigned. There is an almost completely blank counterfoil in between the serial Nos. 244/51 and 246/51, save that it only mentions the name of the tenant. Serial No. 250/51: is unsigned. Counterfoil of. flat No. 25 contains only the name of the tenant and the flat No. and nothing else. Serial No. 56/52 only contains the serial number and nothing else. The bill portion remains undetached and is completely blank. Several counterfoils towards the end are completely blank, but the bill portions have been detached.

Serial No. 238/51 dated December 1, 1951, the very first counterfoil contains the name of K. C. T. & Brothers Ltd. as debtor. This appears to be the counterfoil of the bill sent to Karam Chand Thapar & Bros. Limited in respect of ''Res. Qr.'' that is, ''residential quarters''. In many of the counterfoils there is endorsement '' Pd'', meaning ''Paid'', but there is no such endorsement across this counterfoil. It relates to the month of November, but the year_ has not been mentioned in the body, but it is dated December, 1951. The amount stated is Rs. 983.

Serial No. 1/52 dated January 1, 1952, is another counterfoil in the name of K. C. T. and Bros, Ltd. for the month of December, the year not being mentioned in the body. � It is in respect of ''Res. Qrs.'' The amount of rent is stated to be Rs. 963, whereas in the other bill the amount of rent is stated to be Rs. 983. There is no endorsement to the effect ''Pd''. Serial No. 19/52 dated February 1, 1952, is another counterfoil for the month of January, the year not being mentioned. The amount of rent is stated to be Rs. 958. At first, the rent was written as Rs. 963 as two places but that has been scored out without any initials. There is no endorsement to the effect ''Pd''. At the back are mentioned the numbers of the flat No. 29. The flat numbers have been written in a different ink.

Serial No. 37/52 dated March 1, 1952, is in the name of K. C. T. & Bros, for the month of February, the year not being mentioned. The amount of rent is stated to be Rs. 958. There is no endorsement as ''Pd''. Serial No. 55/52 dated April 1, 1952, is also in the name of K. C. T. & Bros.-Ltd. for March, year not being mentioned. It is for the sum of Rs. 983. There is no endorsement as ''Pd''.

For the'' infirmities noted above we are not prepared to attach much importance to Ext. 3.

Exhibit 3(b) is the counterfoil book for the year 1950-1951. Serial No. 199/50 dated November 2, 1950, is in the name of Karam Chand Thapar &: Bros. Limited. Total rent is shown as Rs. 961-8-0. There is no endorsement showing payment. At the back are mentioned the numbers of the flats. Rent of flat No. 29 is shown as Rs. 65. As noted above on the reverse of serial No. 19/52 dated February 2, 1952, the rent of flat No. 29 has been stated to be Rs. 55. Exhibit 3(b) contains no other counterfoil in the name of Karam Chand Thapar & Bros. Limited. Because of the discrepancy as to the amount of rent in the said two counterfoils we cannot attach much importance to Ex. 3(b).

Exhibit 3(c) is the counterfoil book from December 1959 to May 1960. This book also does not appear to have been kept in the regular course of business. Serial No, 5/60 dated January 3, 1960, in the name of C. C. Sen has been duly filled up, the bill too has been duly filled up. But the bill has not been detached from the counterfoil. Serial No. 38/60 dated March 7, 1960, in the name of the said C. C. Sen suffers from the same defect, the bill has not been detached from the counterfoil. Serial No. 54/60 dated April 5, 1960, also in the name of C. C Sen, is tainted with the same defect. Last four counterfoils are entirely blank though the bill portions have been detached from them. As many as six counterfoils are in the name of the Plaintiffs. In the very first counterfoil, being serial No. 17/60 the date has been altered by overwriting but there are no initials. In the counterfoil for February I960, the figure is 1584. 10 has been scored through at two places and replaced by the figure 1573.71 but without initials. In the counterfoil for March 1960 dated April 5, 1960, the serial number has been altered at first by over-writing and then by a separate endorsement but both without initials. In some of the counterfoils rent is stated to be Rs. 1501-71, in others Rs. 1613-71 and in one Rs. 1573-71. Some of the counterfoils are signed, others are not.

On account of the defects noted above we are not inclined to attach much importance to Ex. 3(c).

The actual rent receipts have not been filed by the Plaintiffs.

P.W. 1 appears to have produced in Court a journal voucher of the Indian City Properties Ltd, showing adjustment of rent, bearing signature of Mr. Berry, accountant, and M. L. Khemka, director. He could not say who wrote the body of the voucher. It has not been marked as an exhibit. Hence, there is nothing on record showing payment of rent by the Plaintiffs to the Indian City Properties Ltd. in respect of flat No. 29. It is, therefore, clear that the letters and the bill books marked as exhibits at the instance of the Plaintiff company do not show that the Plaintiff company is the tenant of Indian City Properties Ltd. in respect of flat No. 29 and that the Defendant is the tenant of the Plaintiff company in respect of the said flat.

P.W. 1 has, however, proved a type-written letter signed by the Defendant himself and the said letter has been marked as Ex. 1. It is undated. The witness has not said when it was written. The letter is addressed to Messrs Karam Chand Thapar 8c Bros. Limited. It opens as follows:

I hereby confirm the under-mentioned conditions for occupying your flat No. 29......of which I have already taken possession.

The words ''your flat'' ordinarily mean the flat of which you are the Owner. But it is nobody''s case that the Plaintiff company is the owner of flat No. 29. The Plaintiff company has not said in the plaint that the Plaintiff company is the tenant of Indian City Properties Ltd. In fact, there is no mention of Indian City Properties Ltd. within the four corners of the plaint. There is nothing on record to show that any tenancy was created in favour of the Plaintiff company in respect of flat No. 29. P''.W. 1 has said that apart from the two letters -filed by him, namely Exs. 1(b) and 1(c) there are no written agreements of tenancy between the Plaintiff company and Indian City Properties Ltd. We have already shown that no inference of tenancy in favour of the Plaintiff company in respect of flat No. 29 can be made from those two letters. Rent receipts too have not been filed by the Plaintiff company. The Plaintiff company was at that time the managing agents of Indian City Properties Ltd. It is not unreasonable to think that by the words ''your flat'' in Ex. 1 the Defendant meant the flat belonging to Indian City Properties Ltd. of which the Plaintiff company was the managing agents.

The first condition in Ex. 1 is as follows:

So long as I shall remain in your service I will occupy your flat No. 29 at the above premises for my personal residence.

Though Ex. 1 is undated, the Defendant as D.W. 1 has stated that he signed Ex. 1 sometime in April 1948. P.W. 1 has stated that the Defendant was in the employment of Messrs Mohini Sugar Mills of which Messrs K. C. Thapar 8c Bros. Limited were the managing agents and that sometime in August 1946 the Defendant came to occupy the flat No. 29. So on the evidence of P.W. 1 the Defendant became the tenant of flat No. 29 sometime in August 1946. He has not said that a new tenancy was created on the execution of Ex. 1 by the Defendant in substitution of the tenancy arising out of the occupation of flat No. 29 sometime in August 1946 as the tenant of Karam Chand Thapar.

No question of surrender of the prior tenancy of 1946 can arise. On the sale of Mohini Mansions to Indian City Properties Ltd. the Defendant became the tenant of Indian City Properties Ltd. by operation of law. The sale of Mohini Mansions to Indian City Properties Ltd. took place in February 1948 and the Defendant became the tenant of the purchaser company from the date of sale. It is not the case of the Plaintiff company that the Defendant, surrendered that lease to the purchaser company, namely Indian City Properties Ltd., and took a new lease under the Plaintiff company. Karam Chand Thapar sold Mohini Mansions sometime before February 20, 1948. The exact date of transfer cannot be ascertained from the materials on record. Karam Chand Thapar by a letter dated March 1,1948 [Ex. C(3)] informed the Defendant about the sale of Mohini Mansions and directed him to pay future rent to the Plaintiff company. The Defendant paid rent to Karam Chand Thapar upto March 1948 and thereafter he paid rent in cash to the Plaintiff company for two months. Later, the rent was deducted from the salary of the Defendant. The Defendant received no letter from the purchaser company asking him to pay future rent to that company. Nor did the Defendant receive any letter from the Plaintiff company to pay future rent to the Plaintiff company. It cannot be said that the tenancy of the Defendant under Karam Chand Thapar came to an end and a fresh tenancy under the Plaintiff company was created. Whoever might be the landlord the old tenancy of the Defendant continued and there is nothing on record to show how and when it came to an end. The Defendant paid rent to the Plaintiff company as per direction given by his original landlord, Karam Chand Thapar. Such payment cannot be the indication of any fresh tenancy under the Plaintiff company.

It is not known why and under what circumstances Ex. 1 was signed by the Defendant. By Ex. 1 the Defendant agreed to hold flat No. 29 subject to certain conditions. We have no idea as to the consideration for this agreement. This unilateral agreement cannot affect the incidents of the Defendant''s tenancy, at first under Karam Chand Thapar and thereafter under Indian City Properties Ltd. There is nothing on record, as shown above, when and how the Plaintiff company became the tenant of flat No. 29 under Indian City Properties Ltd. or whether the Plaintiff company at all became the tenant of that flat. Even if it be assumed that the Plaintiff company acquired an intermediate tenancy above the Defendant that will not in any way affect the original tenancy of the Defendant as there is nothing'' on record to show that a new tenancy was created in favour of the Defendant under the Plaintiff company on the surrender of the previous tenancy. It must be presumed that the Defendant has been in continuous possession on the basis of his original tenancy under Karam Chand Thapar.

Again, it is not known when the Defendant ceased to be an employee of Mohini Sugar Mills Ltd. and entered the service of the Plaintiff company. At the inception of the tenancy he was the employee of Mohini Sugar Mills Ltd. and his landlord was Karam Chand Thapar, who, in his personal capacity, was not his employer. Clause (g) of Section 13(1) of the West Bengal Premises Tenancy Act, 1956, could have no application to the tenancy originally granted by Karam Chand Thapar to the Defendant in 1946. We have shown above that the original tenancy continued even in April 1948 when Ex. 1 was executed. Therefore, the Plaintiff company cannot evict the Defendant on the ground contained in Clause (g) of Section 13(1) of the said Act, even on the assumption that the Plaintiff company is the landlord of the Defendant.

The position may be considered from another point of view. Can it be said that flat No. 29 was let out to the tenant by reason of his being in the service of the landlord ? No such inference can be made from Ex. 1. Flat No. 29 was let out to the Defendant in 1946 not by reason of the Defendant being in the service of Karam Chand Thapar, the then landlord. That tenancy continued even after the execution of Ex. 1, because Ex. 1 cannot be regarded as a deed of lease between the Plaintiff company and the Defendant. Moreover, there is nothing in Ex. 1 indicating that flat No. 29 was let out to the Defendant by reason of his being in the service of the Plaintiff company. It has not been stated in Ex. 1 that flat No. 29 would not have been let out to the Defendant if he were not in the service of the Plaintiff company. Mr. Mitter, on behalf of the Plaintiff Appellant, says that Clause (g) of Section 13(1) is attracted by reason of the first and the third conditions of Ex. 1. The first condition merely says that so long as the Defendant shall remain in the service of the Plaintiff company he will occupy flat No. 29 for his personal residence. From this it cannot be inferred that flat No. 29 was let out to him by reason of his being in the service of the Plaintiff company. As a matter of fact this condition says nothing as to why the flat was let out to the Defendant, it merely says--what the Defendant will do as an employee of the Plaintiff company. Clause (g) will not apply unless it is found that the premises would not have been let out to the tenant if he were not an employee of the landlord. No such finding can be made on the basis of the first condition.

The third condition runs thus:

In the event of my leaving my job under you or under the companies under your management for any reason whatsoever I undertake to vacate the said flat within 15 days from the date I am relieved of my duties and shall deliver you vacant possession of the said premises peacefully.

From this condition too it cannot be inferred that flat No. 29 was let out to the Defendant by reason of his being in the service of the Plaintiff company, because by this condition the Defendant undertook to vacate the disputed flat in the event of his leaving his job not only under the Plaintiff company but also under the companies under the management of the Plaintiff company. If the Defendant''s employment under the Plaintiff company were the sole reason for letting out flat No. 29 to the Defendant, there would have been no necessity of mentioning the Defendant''s employment under the companies under the management of the Appellant company.

Clause (g) of Section 13(1) does not say that the landlord is entitled to get a decree where the tenant agrees to vacate on the termination of his service. Hence, the Plaintiff company is not entitled to get any decree by reason of the third condition in Ex. 1. The Defendant no doubt said that so long he would remain in the service of the Plaintiff company he would occupy flat No. 29 for his residence (see the first condition of Ex. 1). But from this it cannot be inferred, as indicated above, that flat No. 29 was let out to the Defendant in consequence of his employment under the Plaintiff company. On the other hand, we have found as a fact that flat No. 29 was let out to the Defendant in 1946 by Karam Chand Thapar who was not the employer of the Defendant at that time and that the said tenancy continued in force in spite of the letter, Ex. 1, written by the Defendant to the Plaintiff company. Again, in view of the interlocking arrangement between Karam Chand Thapar, Mohini Sugar Mills Ltd., Indian City Properties Ltd. and the Plaintiff company it is very difficult to say that flat No. 29 was let out to the Defendant by reason of his service under the Plaintiff company. As the Plaintiff company is not entitled to invoke Clause (g) of Section 13(1) in support of his claim for eviction no decree for ejectment can be given against the Defendant on the facts and in the circumstances of the case.

Both the Courts below have held that the agreement embodied in Ex. 1 is vitiated by undue influence and hence avoidable. It is not necessary for us to enter, into the question of undue influence, as, in our opinion, even on the basis of Ex. 1 the Defendant is not liable to be ejected.

In the result, the appeal fails and the appeal is accordingly dismissed with costs.

A.K. Sinha, J.

I agree.