Saradindu Saha vs Nripendra Kumar Roy Chowdhury

G.N. Ray, J.—In this appeal the Defendants tenants challenge the judgment and decree passed in Ejectment Suit No. 951 of 1971 of the Court of the learned Chief Judge, City Civil Court, Calcutta.

The Plaintiff-Respondent instituted the aforesaid suit for eviction against the said Defendants tenants from the suit room on the ground of default, subletting and also of own use and occupation of the Plaintiff. The case of the Plaintiff landlord was inter alia that Sri Saradindu Sana and Sri Madhabendu Sana were joint monthly tenants under the said Plaintiff in respect of the suit room at a monthly rental of Rs. 18-56 payable according to the English calendar month. Madhabendu Saha died on or about March 6, 1955, leaving behind him his heirs and legal representatives, viz. the Defendants Nos. 8 to 11 and the said heirs along with Saradindu Saha became joint monthly tenants under the Plaintiff in respect of the said suit room. The widow of Madhabendu Saha subsequently died. The Defendants without the knowledge and consent in writing of the Plaintiff had sublet the said room in its entirety to M/s. Sneha Decorators and the said Defendants had also defaulted in payment of rent for the room in suit. The Plaintiff also contended that the Plaintiff reasonably required this room for his own use and occupation. The Plaintiff further con-tended that the tenancy of the Defendants had been duly terminated by a notice of ejectment served on them, asking the Defendants to vacate the suit room by the end of June 1970, but as the Defendants failed to vacate the said room, the aforesaid ejectment suit was instituted by the Plaintiff.

It appears that only the Defendant No. 1, viz. Saradindu Saha contested the said suit by filing a written statement viler alia denying the allegations made in the plaint. It was contended by the said Defendant No. 1 that M/s. Madhabendu Saradindu Saha, a firm, was a monthly tenant under the Plaintiff in respect of the said suit room and the Defendant Saradindu Saha was a partner of the said firm. The Defendant No. 1 denied the allegations of the Plaintiff that the said Saradindu Saha and his brother Madhabendu Saha were joint monthly tenants of the suit room. The said Defendant No. 1 further contended that the tenants stopped receiving payment of rent in order to get rid of the tenancy and as such, the said firm M/s. Madhabendu Saradindu Saha was compelled to remit rent of the suit room by money order to the Plaintiff, but as the Plaintiff refused to accept the said rent the firm was compelled to deposit rent with the Rent Controller and the firm had been depositing rent with the Rent Controller. The Defendant No. 1 further contended that as no legal and valid notice of ejectment was served on the aforesaid firm, the said suit was not maintainable. The Defendant No. 1 further denied that the suit room was ever sublet to M/s. Sneha Decorators. It was contended by the said Defendant No. 1 that the said firm M/s. Madhabendu Saradindu Saha was still in possession of the suit room.

The learned trial Judge after considering the materials on record came to the finding that the Defendant No. 1 and his brother in their personal capacity were joint tenants under the Plaintiff and the suit room had not been let out to the firm M/s. Madhabendu Saradindu Saha as alleged. The learned Judge also found that the notice of eviction was valid and sufficient and there was also valid service of the said notice on the Defendants. The learned Judge further found that the Defendants had sublet the suit room to the said Sneha Decorators for more than ten years on monetary consideration without the written consent of the Plaintiff and as such, the Defendants were liable to be evicted from the suit room. The learned Judge further found that the Defendants had also defaulted in payment of rent as alleged by the Plaintiff. On the question of reasonable requirement of the Plaintiff of the suit room for his own use and occupation, the learned Judge also found in favour of the Plaintiff. In view of those findings, the aforesaid ejectment suit was decreed in favour of the Plaintiff landlord and against the said judgment and decree of the trial Court, the instant appeal being F.A. No. 67 of 1975 has been preferred by the Defendants.

Mr. Sachindra Chandra Das Gupta, the learned Advocate appearing for the Appellants, at the very outset contended that the pleading as made by the Plaintiff in the trial Court was insufficient in so far as the case for reasonable requirement of the suit premises by the Plaintiff landlord was concerned. Mr. Das Gupta submitted that it was necessary for the Plaintiff to specifically plead that he had no suitable alternative accommodation elsewhere if the Plaintiff intended to have the eviction of the Defendants on the ground of reasonable requirement of the Plaintiff in respect of the suit premises. In this connection, Mr. Das Gupta also referred to the decision of the Supreme Court made in the case of B. Banerjee v. Anita Pan AIR 1976 S.C. 1146. Mr. Das Gupta further submitted that, if such specific pleading was there in the plaint, the Defendant would have laid positive evidence to establish that the Plaintiff had no reasonable requirement of the suit premises or that the Plaintiff had sufficient alternative suitable accommodation in his possession. The Plaintiff Respondent thereafter made an application for amendment of plaint inter alia praying for incorporating a new paragraph being para. 5A(1) to the effect that neither the Plaintiff nor his eldest son was in possession of any reasonably suitable accommodation where the Plaintiff''s said son could have his office-cum-godown for his business of Bengal fibres. It was also stated to the effect that there was no other alternative accommodation available to the Plaintiff to meet the said needs.

As the said proposed amendment did not change the nature and character of the suit, the said amendment was allowed. Mr. Das Gupta thereafter submitted that in view of the said amendment of the plaint there should be an order of remand directing the trial Court to decide the said question of reasonable requirement afresh after giving the Defendants reasonable opportunity to submit additional written statement. Mr. Ashutosh Narayan Chowdhury, learned Advocate appearing for the Respondent, however submitted that this appeal can be disposed of and the order of eviction can be maintained even without considering the question of reasonable requirement and if this Court is not inclined to grant relief to the Plaintiff on the ground of default and/or subletting, then the question of sending the case back on remand may be considered by this Court. As the aforesaid contention of Mr. Chowdhury is reasonable, we propose to consider the question as to the allegations of subletting and default made by the Defendants in respect of the suit premises. It may be stated in this connection that an application under Order 41, Rule 27 read with Section 151 of the CPC was made on behalf of the Appellants Petitioners for taking additional evidence as referred to the said application. In the said application for additional evidence, four rent receipts issued by the Plaintiff in respect of the suit premises to the Defendants were annexed. The said application for additional evidence was allowed by this Court and was also taken into consideration in the matter of disposing this appeal.

Mr. Das Gupta, the learned Advocate appearing for the Appellants, contended that nobody on behalf of the Plaintiff could prove that there had been any subletting in favour of M/s. Sneha Decorators since alleged by the Plaintiff. The Plaintiff himself was not examined but the son of the Plaintiff who was P.W. 1 in the case had to admit that the Defendants were inducted in the suit room more than 35 years back and he was not present when the Defendants were inducted in the suit room and also could not say on what terms the tenancy in suit was created. Mr. Das Gupta submitted that although the Plaintiff''s son has stated about the subletting of the suit room in favour of M/s. Sneha Decorators, his deposition should not be relied on because he had not seen any payment of rent by the said M/s. Sneha Decorators. Mr. Das Gupta contended that mere possession of the suit room by the said M/s. Sneha Decorators does not constitute tenancy in favour of the said Decorators and the onus lay on the Plaintiff to establish by positive evidence that the suit room was sublet to the said M/s. Sneha Decorators by the Defendants. We are, however, unable to accept this contention of Mr. Das Gupta. It is true that the son of the Plaintiff or other witnesses of the Plaintiff could not say about the rate of rent or the terms at which the said subletting had been made by the Defendants in favour of M/s. Sneha Decorators, but there has been sufficient evidence by the son of the Plaintiff and other witnesses examined on behalf of the Plaintiff to the effect that M/s. Sneha Decorators are not only using the suit room as godown, the said room is in exclusive possession of the said Sneha Decorators for the last 11/12 years and the Defendants have not exercised any act of possession in respect of the said suit room.

It is obvious that a fact may be proved either by a direct evidence or by an indirect evidence. In case of subletting by a tenant contrary to the provisions of law, it may often be very difficult to get direct proof of sub-tenancy and the parties alleging a case of sub-tenancy may not be in a position to lead evidence directly on the aspects of rate of rent and other terms of sub-tenancy but from the circumstances prevailing, reasonable inference may be made as to the existence of the sub-tenancy in a particular case. The act of exclusive possession, the manner of possession and non-user of the premises in question by the original tenant but user of the same by the alleged sub-tenant may go a long way to establish a case of sub-tenancy. In the instant case, there is sufficient evidence to the effect that for the last 8/10 years the Defendants are not in actual physical possession of the suit room but M/s. Sneha Decorators have been using the suit room exclusively and have been using the same as their godown. The said room is being kept under lock and key by the said M/s. Sneha Decorators. It is also pertinent to note in this connection that it is not the case of the Defendants that the said M/s. Sneha Decorators have been occupying the suit room with leave and licence of the Defendants and the Defendants still retain control and possession in respect of the said suit room. On the contrary, it is the positive case of the Defendants that they are in possession of the suit room and Sneha Decorators are not in possession of the suit room. In the facts and circumstances of this case, in our view, it is quite clear that the possession and/or occupation by the said Sneha Decorators in respect of the suit room cannot be reasonably explained by the Defendants particularly in view of the fact that the Defendants claimed exclusive possession by themselves and the trial Court was quite justified in inferring reasonably that Sneha Decorators had been in occupation of the suit room as sub-tenants. In our view, the Defendants utterly failed to dislodge the said reasonable inference to be drawn against them by any cogent and material evidence on the point. Mr. Das Gupta has submitted that the evidence on the question of subletting was only in a nebulous state and the learned Judge should have exercised powers u/s 165 of the Indian Evidence Act. Mr. Das Gupta also submitted that not only the learned Judge had powers to put specific questions to the witnesses regarding subletting, it was also the duty cast on him as a presiding Judge. In this connection, Mr. Das Gupta referred to a decision reported in Sunil Chandra Roy and Another Vs. The State, . In our view, the aforesaid contention of Mr. Das Gupta is wholly misconceived. In an appropriate case, the presiding Judge may and sometime should exercise powers u/s 165 of the Evidence Act and put relevant questions to the witnesses for the purpose of ascertaining truth, but it cannot be said that it is the duty cast on a presiding Judge u/s 165 of the Indian Evidence Act to put questions to the witnesses for the purpose of filling up the lacunae in the matter of examination and/or cross-examination of a witness. In the facts of the present case, it is quite apparent that there was hardly any scope for the learned Judge to put any specific question to the P.W. 1 about subletting when P.W. 1 specifically stated that he had not seen the said M/s. Sneha Decorators to pay rent to the Defendants and he was also not aware as to the terms and conditions of sub tenancy between the parties. The contention of Mr. Das Gupta that as only the factum of possession by M/s. Sneha Decorators had been proved in the case, it was not possible to hold that there had been subletting of the suit room cannot be accepted in view of the discussion made hereinbefore and in our view, the trial Court has rightly held that there had been subletting of the suit room in favour of the said M/s. Sneha Decorators by the Defendants.

So far as the case of default alleged by the Plaintiff is concerned, Mr. Das Gupta contends that the Court failed to consider the provisions of Sections 21 to 23 of the West Bengal Premises Tenancy Act, 1956. It may be pointed out that the Defendants tendered rent to the Plaintiff on behalf of a firm M/s. Madhabendu Saradindu Saha and as according to the Plaintiff, the said firm was not the tenant but Madhabendu and Saradindu, namely the two brothers, were joint tenants and after the death of Madhabendu his heirs became the tenants in his place, the Plaintiff refused to accept any tender of rent made on behalf of the firm. It is now to be seen as to whether the said firm was really a tenant or both the said brothers were joint tenants under the Plaintiff. Mr. Das Gupta referred to four rent receipts annexed to the application for additional evidence to support his contention that it was the firm M/s. Madhabendu Saradindu Saha, the tenants in respect of the said room and not the two brothers as alleged by the Plaintiff. On scrutiny of the rent receipts annexed to the said application for additional evidence it will, however, transpire that in all the said rent receipts ''Sri'' has been put before the name Madhabendu Saradindu Saha and in some of the rent receipts there is also a comma in between the names Madhabendu and Saradindu. If it is a case of a tenancy in favour of a firm there is no reason why ''Sri'' should be put in before the names. The existence of a comma in between the two names in some of the rent receipts also cannot be explained if it is assumed that the firm was really a tenant. In our view, the trial Court was quite justified in holding that the two brothers Madhabendu and Saradindu Saha were tenants in their individual capacity and the firm M/s. Madhabendu Saradindu Saha was not the tenant under the Plaintiff. As the alleged firm was never the tenant under the Plaintiff, the tender of rent by the said firm and the deposits of rent by the said firm with the Rent Controller were also invalid resulting in default committed by the Defendants. In our view, the notice of eviction is also quite legal and sufficient and the tenancy has been lawfully terminated by the service of the said notice. Accordingly, even without considering the question as to the reasonable requirement of the suit premises by the Plaintiff landlord, the instant suit instituted by the Plaintiff landlord is bound to succeed both on the ground of default and also on the ground of subletting. As such, it is not necessary to send the case back on remand for deciding the question of reasonable requirement on the basis of the amended pleading of the Plaintiff in that regard and this appeal must fail and the same is dismissed. We, however, make no order as to costs.

Banerjee, J.

I agree.