Madan Mohan Wadhawan vs Rama Devi

Joytosh Banerjee, J.—This appeal is directed against the judgment and the decree of dismissal passed by learned Additional District Judge, 2nd Court, Alipore in the district of 24-parganas (now in the District of South 24-parganas) affirming the judgment dated June 29, 1984, and the decree dated July 7, 1984, passed by the learned Additional Munsif, 1st court, Alipore in T.S. 179/ 1978.

The predecessor-in-interest of the Respondents of the present 2nd Appeal, namely, Dr. P.P. Tondon brought a suit for ejectment, and damages against the Appellant alleging, inter alia, that the Defendant was a tenant in respect of asbestos and tin rooms and a kitchen known as a cottage, affirming a portion of premises No. 5/8/1 A, Sebak Baidya Street, P.S. Ballygunge, Calcutta 700 029, more fully described in Scheduled of the plaint at a monthly rent of Rs. 80.00, according to English Calendar month, and the said rent was payable along with corporation taxes of the entire aforesaid premises in advance by 5th day of each month for which the rent was payable. The aforesaid monthly rent with the consent of the Defendant was increased to Rs. 100.00 per month with effect from first of January 1970. It is alleged that the Defendant defaulted in payment of rent for the aforesaid premises since the month of November, 1970. It is further alleged that without consent in writing of the Plaintiff/Respondent, the Defendant removed out tubewell and converted the enclosure into a bed room by making additions and alterations in the suit premises. It is also alleged that Without the consent in writing of the Plaintiff/Respondent, the Defendant started using the suit premises for a saddle making factory, storing there raw hides, which emit foul smell and was causing nuisance and annoyance to the neighbors, inspire of the fact that the suit premises was let out to the Defendant/Appellant only for residential purposes.

In the aforesaid facts and circumstances, the Plaintiff brought the suit for eviction after determining the tenancy of the Defendant by serving a notice, purporting to he u/s 106 of the T.P. Act and also u/s 13(6) of the West Bengal Premises Tenancy Act, 1956 whereby the Defendant was called upon to quit, vacate and deliver peaceful possession of the suit premises on the expiry of the month commencing next after receipt of the said notice but inspite of the notice the Defendant failed to give vacant possession of the suit premises to the Plaintiff/Respondent. So Plaintiff was constrained to file the suit.

The Defendant/Appellant contested the suit on a written statement denying all the material allegations raised against him and also challenging the legality of the notice. During the pendency of the suit defence against delivery of possession of the Defendant/tenant was struck out when the trial court allowed an application to that effect filed by the Plaintiff/landlord u/s 17(3) of the West Bengal Premises Tenancy Act.

The Trial Court on consideration of the evidence, facts and circumstances of the case came to a finding that the defendant/Appellant''s, tenancy was terminated by the service of a valid notice u/s 13(6) of the West Bengal Premises Tenancy Act. The learned Trial Court further held that in the facts and circumstances of the case, the tenant/Defendant did an act contrary to the provisions of clause ''M'', clause ''O'' and clause ''P'' of Section 108 of T.P. Act and thereby the order of eviction against the tenant should be passed u/s 13(b) of the West Bengal Premises Tenancy Act. With these findings, the Learned Trial Court decreed the suit and directed the Defendant/Appellant to vacate the suit premises in favour of the Plaintiff/Respondent within two months from the date of order failing which the Plaintiff got the liberty to put the decree into execution through court.

In appeal, the learned Additional District Judge, 2nd Court, Alipore confirmed the aforesaid judgment and decree passed by the Trial Court and in this way dismissed the appeal.

Being aggrieved by such order, the Defendant/tenant preferred the present Second Appeal, alleging, inter alia, that the purported notice u/s 13(6) of the West Bengal Premises Tenancy Act is bad in law on the ground that the period of notice as described in the said notice is one month next following the date of receipt of the notice and not the tenancy month and on calculation it transpires that tenancy purports to terminate on January 29, 1973, and not on the expiry of the month of tenancy, that the striking out the defence of Defendant/Appellant for delivery of possession is illegal and bad in law and the Defendant/tenant should have been allowed to adduce evidence and should have the benefit of a full-fledged hearing of the suit upon all points, that the court below failed to appreciate that the probated Will on the basis of which substitution was made being in the nature of the trust and the Respondent/Plaintiff No. 1 having held the property for the benefit of the other two Respondents as trustee, the other two Respondents are not at all necessary parties to the suit and they being made parties the same should fail on the ground of misjoinder of the parties.

I have heard the submissions of Mr. S. Dasgupta, Learned Senior Counsel for the Appellant and Mr. S.P. Sarkar Learned Single Counsel for the Respondents. The learned Counsel for the Appellant has submitted that the ejectment notice dated December 26, 1972, was not a proper and valid notice as provided u/s 13(6) of the West Bengal Premises Tenancy Act, due to the fact that the notice was a conditional one and it was not one month notice. Secondly, it is submitted that in view of the recent trend of decisions of the Apex Court when admittedly rents for different months were deposited and there was no default, the Defendant/Appellant should not be held a defaulter and no order u/s 17(3) of the West Bengal Premises Tenancy Act (hereinafter referred as the Act) should be passed on the basis of certain delayed deposited in the court below. It is also submitted that the order passed u/s 17(2) and 2A.of the Act without specifying the amount upon calculation of the interest by the Trial Court was bad in law and non-compliance with the same should not be a ground for striking out the defense of the Defendant/ Appellant u/s 17(3). It is further submitted that there being no assent of legacy and all the heirs of the original Plaintiff not being impleaded as parties the suit should fail for defect of parties.

On the other hand, it is submitted on behalf of the Respondent that the notice dated December 26, 1972, was a perfectly valid notice as through the same not only the tenancy in question was terminated in accordance with the provisions of Section 13(6), but the said contains a clear threat to file a suit. The demand for restoring the tubewell in its original condition and remove the nuisance and annoyance within a period of three months only indicated that action for damages for the same would be taken only after the expiry of the said three months. Regarding the order passed u/s 17(3), it is the contention raised from the said of the Respondent that the learned Trial Judge recorded sufficient reasons for stroking out the defence and that aspect of the matter should not be reopened in Second Appeal. It is also submitted that contention regarding the defect of party is misconceived in view of the fact that under the provisions of the Will the wife apart from being appointed as a sole executrix was also given a life interest in the property and two other children were also the beneficiaries. So the total beneficial interest was conferred on the three persons who were substituted in place of original Plaintiff/Respondent. That apart, at any rate for mis-joinder or conjoinder of parties, no suit should be dismissed. Apart from this, the learned Counsel for the Respondent has also drawn my attention to the legal position that a Second Appeal is not hearing of a First Appeal for Second time. Second Appeal should be confined to substantial questions of law arising from a particular case; questions of fact cannot be reagitated.

Having heard the learned Counsels for both sides at length in this way I find that the main question which has been agitated here is the question touching the legality and validity of the notice to quit which is the very basis of the suit. u/s 13(6) of the West Bengal Premises Tenancy Act, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-Section 1 (of Section 13) except the grounds mentioned in clause ''J'' and ''K'' of that Sub-section shall be filed by the landlord unless he has given to the tenant one month notice expiring with a month of the tenancy So before filing a suit for eviction on any of the grounds except the grounds noted in clause J and K, the tenant must be served with a notice and in such notice, tenant must be given minimum one month''s time, expiring with the month of the tenancy. In the instant case, the notice in question clearly indicates that the tenancy in question was terminated through the notice on the expiry of the month commencing next after receipt of the notice. It is not disputed here that the tenancy in question used to run according to English calendar month (from 1st day of the month to the end of the month) so through the aforesaid language in the notice it is clear that the tenancy in question was determined on the expiry of the English calendar month commencing next after receipt of the notice by the tenant. But the Appellant here has raised the question of legality of the notice only for a paragraph of such notice which reads as follows:

That unless you restore the said tubewell in original working condition and the enclosure walls of the tubewell also in their original condition, and remove the said nuisance and annoyance within three months from receipt hereof, my said client will be forced to sue for your eviction on the ground also and further to recover damages suffered by him for such acts of yours.

It has been contended pointing towards the aforesaid language that tenancy in question was sought to be terminated within three months from the receipt of the notice and in this way such notice failed to terminate the tenancy in question on the expiry of the month of tenancy. But I do not find any reason to accept such argument. It is evident from a close reading of the entire notice that the tenancy in question was terminated on the expiry of the month commencing next after receipt of the notice. Through the aforesaid paragraphs of the notice, the tenant was requested to restore the tubewell in original working condition failing which the landlord disclosed that such landlord would be forced to. sue for eviction also on that ground and he would recover damages suffered by him for such tenant. Whether the landlord could successfully maintain the suit for eviction also on the ground of failure oh the part of tenant to Restore the tubewell in original working condition or not is a different question. But from the language of the notice it is clear that such notice terminated the tenancy on the expiry of a month of tenancy and not otherwise, failing which there was also a threat of suit.

Regarding the question of striking out the defense against delivery of possession, under the provisions of Section 17(3) of the Act, it transpires that such order was passed by the trial court for delayed deposits on 19 occasions beginning from 1976 to 1980. It is true that the Defendant/tenant made an application for condo nation of delay but the same was rejected by the trial court as per the order passed by the trial court in connection with the proceeding u/s 17(3), the said order of rejection was not interfered with in revision by the superior court. True it is that if the occasion demands, the matter can be reagitated before the Appellate Court but there is nothing to suggest from the judgment impugned that the same was agitated before the 1st Appellate Court on any specific ground. In this respect, it should be noted that it was submitted on behalf of the Appellant that the order allowing the application u/s 17(3) was open to challenge in appeal in view of the provisions of Section 105 of CPC as the said question is substantial question of law as held by the Apex Court in the State of Rajasthan Vs. Harphool Singh (Dead) Through His L.Rs., Section 105 of CPC allows an appealable order which has not been appealed from to be made the subject of appeal in an appeal from the decree. On carefully going through the judgment passed by the learned Additional District Judge, 2nd Court, Alipore I do not find anything to indicate that this particular point was agitated before the learned 1st Appellate Court and such court committed a grave error in disposing of the same. The case referred to State of Rajasthan v. Harful Singh (supra) will not be helpful to the Appellant, in establishing the contention that in Second Appeal this Court can interfere with the order passed by the trial court u/s 17(3) of the Act on the ground that the delay in depositing the amount should have been condoned u/s 151 of the CPC and also in view of the allegation that the trial court failed to pass a proper order in a proceeding u/s 17(2) and 17(2a) of the Act. There the facts and circumstances were different. In that case, the Plaintiff claimed that he was possessing the suit property since time immemorial by fencing it and in the year, 1955 such Plaintiff constructed a house on the disputed plot and started living therein. It was alleged that ADM/Secretary, Mandi Developing Committee issued a notice calling upon the Plaintiff to vacate the encroachment and since the ADM without properly enquiring the claim of the Plaintiff, ordered the eviction, the Plaintiff was forced to file the suit and as per his case, he by his long possession became the owner of the suit land. Defendant in that proceeding clearly stated that the encroachment of the suit land was made for the first time only in the year, 1981 and the Plaintiff of the case was not in possession of the plot before that. The trial court decreed the suit on a finding that the Plaintiff was in peaceful possession of suit land for more than 30 years without any obstruction and such possession was continuous. The first appellate Court affirmed the findings without any reference to the principles of law or the criteria to be satisfied before the claim of the Plaintiff of perfection of title by adverse possession could be sustained, in favour of correspondingly destruction of title of the State in respect of a public property. The said 1st Appellate Court choose to reject the appeal on the ground of limitation. The High Court summarily rejected the Second Appeal solely for the reason that both the courts below found the Plaintiff to be the owner of the property. In that background, the Apex Court in para. 10 of the reported judgment observed as follows:

Apart from the serious error committed by the first Appellate Court on the question of limitation, which the Second Appellate Court was obliged but yet failed to consider and correct, the learned Single Judge in the High Court, in our view, committed a grave error in dismissing summarily the appeal when it involved substantial and arguable questions of law of some importance.

In this background, in my considered opinion, on the basis of the aforesaid decision, it cannot be said that in the instant case, the order passed by the trial court was open to challenge in appeal as the same involved substantial question of law. It has already been seen that the order u/s 17(3) of the Act was passed for making as many as 19 deposits out of time and there is nothing to show that the orders passed by the trial court rejecting the application u/s 151 CPC for condensation of delay were challenged before the First Appellate Court in any way. In fact, no attempt has been made to point out before this Court that there was a substantial questions of law involved in connection with the rejection of the application u/s 151 CPC for the aforesaid purpose. Therefore, the trial court was totally justified in allowing the application u/s 17(3) of the Act due to the admitted position here that the tenant/Defendant made large number of deposits out of time. It has been submitted that rejection of Appellant''s application u/s 151 of the CPC and striking out the defence under the provisions of Section 17(3) of the Act, are on the very face of the same bad and not sustainable in view of the Hon''ble Apex Courts judgment in B.P. Khemka Pvt. Ltd. Vs. Birendra Kumar Bhowmick and Another, . In that reported case, the Apex Court has observed in para. 15 as follows:

Once that word ''shall'' used in Section 17(3) is read as ''may'' and consequently the provision for striking out of the defence is to be read as directory and hot mandatory then it follows that the court is vested with the discretion to order either striking out of the defence or not, depending upon the circumstances of the case and interest of justice.

So as per the above observation of the Apex Court, the court is vested with discretion to order either striking out of the defence or not depending upon the circumstances of the case and the. interest of justice. In the reported case during the pendency of the proceeding, the West Bengal Premises Tenancy (amendment) Ordinance No. VI of 1976 (later replaced by the West Bengal Premises Tenancy (Amendment) Act 30 of 1969) came to be promulgated with effect from August 26, 1967. By Section 2 of the Ordinance Sub-sections (2A) and (2B) of Section 17 of the Act Were inserted. Section 5 of the ordinance gave retrospective effect of the amendments by providing that the ordinance made by Section 2 of the ordinance should have effect in respect of all suits including appeals which were pending at the date of commencement of the ordinance. The amendments inter alia, enabled the tenant, who in default to apply to the court and pay the arrears of rent in installments and thereby avert their eviction. To avail the benefit of the amended provision, the Appellant of that caste preferred an application and subsequently paid the entire arrears of rent in accordance with the directions of the court but the Respondent filed an application u/s 17(3) for Striking out the defence of the Appellant against the delivery of possession of the demised premises for non-compliance with the terms of Section 17(1). In that case, there was delay in depositing the rent for two months, viz., for September, 1968 and March, 1969. The Appellant filed an application u/s 148 of the CPC for extension of time for the purpose of depositing the said amounts which was rejected by the trial court. In that circumstances, the Apex Court found that the delay should be condoned specially in view of the fact that the default pertained to belated payments of rent for two months and was therefore, a default in the technical sense than in the real sense and hence of an inconsequential nature. But in the present case, the application u/s 17(3) was allowed under a completely different circumstances wherein as I have already pointed out a large number of deposits were made beyond the period of limitation. So, in my considered opinion following the aforesaid decision it can be said that in the facts and circumstances of the case there was no reason to condone the delay by the trial court.

It was also the contention from the side of the Appellant that there being no assent to legacy and all the heirs of the original Plaintiff should have been impleaded in the suit on the death of the original Plaintiff and that being not done the suit was bad for defect of parties and the Respondents had no locus standi to maintain in suit. The aforesaid contention appears to me misconceived: It is not disputed here that under the provisions of the Will, the wife of the deceased original Plaintiff the testator, apart from being appointed as a sole executrix, was given a life interest in the property and her two children were made the ultimate beneficiaries. In this way, the total beneficial interest was conferred on those three persons who were impleaded as substituted Plaintiffs on the death of the original Plaintiff. True it is that an executor of an unprobated Will is entitled to file or defend a suit. Such executor is also is entitled to be substituted following the title of the testator. But such executor must obtain probate before the decree is passed. In the instant case, record will go to show that probate of the Will had been granted before passing the decree in the suit by the trial court. No doubt, the widow of the original Plaintiff as the executrix was entitled to proceed with the suit alone on the death of the original Plaintiff. But the other two Plaintiffs being the ultimate beneficiaries of the property, they were also made parties in the suit. In my considered opinion, for that reason alone, the suit cannot fail, for the simple reason that for mis-joinder or non-joinder of parties no suit can be dismissed. The court can give the Plaintiff a chance to amend the plaint suitably to implead a necessary party when such court feels that in the absence of such necessary party, it is not possible for the court to pass the decree. Fortunately, that is not the case here.

Before I part with the matter finally I should point out here that the scope of Second Appeal from a decree, by nature and character is different from a first appeal. In Sheel Chand Vs. Prakash Chand, , the Supreme Court has clearly observed that a bare look of Section 100 CPC shows that the jurisdiction of the High Court to entertain a Second Appeal after 1976 amendment is confined only to such appeals as involved a substantial question of law, specifically set out in the memorandum of appeal and promulgated by the High Court. By virtue of the proviso to that section, the High Court shall indicate in its order, the substantial question of law which it proposed to decide even if such substantial question of law was not earlier promulgated by it. Therefore, the existence of a substantial question of law is thus, the sine qua non for the exercise of the jurisdiction under the amended provisions of Section 100 of the Code of Civil Procedure. In the instant case, while admitting the appeal this Court did not formulate any substantial questions of law. In fact it did not give any hint in the order, admitting the appeal, on what point touching the substantial question of law, the Appellant will be heard. After hearing the submissions of the learned Counsels for both sides I also did not find any substantial questions of law involved in the present appeal. No doubt it was canvassed before this Court that the learned trial court was not justified in allowing the application made u/s 17(3) of the Act or that the notice is defective. But the learned Counsel for the Appellant proceeded with such argument seeking reexamination the questions of fact touching those points where both the courts below reached at a concurrent findings. That being the position I am constrained to hold that the Second Appeal in the instant case is also not maintainable.

In the result, the appeal must fail. Appeal is thus dismissed with costs. Stay granted in connection with execution of the decree stands vacated.