S.B. Sen vs Tejendra Chandra Bhowmik

Anil K. Sen, J.—This appeal is by the tenant-Defendant No. 1 and is directed against an appellate decree by which a decree for possession by evicting the Defendants from the suit premises was affirmed.

It is not in dispute that the Defendant No. 1 was a tenant in respect of flat No. 10 at premises No. 11 Tarak Dutta Road, Calcutta, at a monthly rent of Rs. 75 payable according to English calendar.

The Plaintiff''s case is that the Defendant No. 1, the tenant, was not residing in the suit premises and was residing in Burma with his family and that he had without the knowledge and consent of the Plaintiff let opt the suit premises to Defendants Nos. 2 to 5. The Plaintiff further pleaded that the Defendant No. 1 was a defaulter not having paid any rent to him since October 1958 and that the Plaintiff had duly served the requisite notices and terminated the tenancy.

The Defendant No. 1 contested the suit denying the allegations both of sub-letting and of default; though the Defendant No. 1 did not dispute that he" had been residing in Burma, he alleged that he and the members of his family frequently came to Calcutta and lived in the Suit premises; the Defendant No. 1 did not dispute the fact that the other Defendants Nos. 2 to 5 were residing in the suit premises, but it was alleged that they were not sub-tenants but were mere licensees; according to the Defendant No. 1, Defendants Nos. 2 to 5 were his friend''s children who were accommodated in the suit premises merely as licensees. The Defendant also denied the allegation of default and alleged that the Plaintiff having wrongfully refused to accept the rent tendered to him, he had been depositing the rent with the Rent Controller all along.

The trial Court found against the Defendant on the issue of sub-letting; according to the learned Judge in the trial Court, the Defendant No. 1 had sub-let the suit premises to the Defendants 2 to 5 and had thereby forfeited his protection under the provisions of the West Bengal Premises Tenancy Act.

On the question of default, however, the learned Judge in the trial Court held in favour of the Defendant; according to the learned Judge of the trial Court the rent for the month of October 1958 was tendered by money order to the Plaintiff on November 28, 1958, and on refusal by the Plaintiff-landlord the rents for the months of October and November 1958 were deposited on December 17, 1958, and thereafter the rent was being deposited with the Rent Controller until the institution of the suit. After the institution of the suit, the Defendant No. 1 entered appearance and redeposited rents for the months of October 1958 and July 1959 in Court. The learned Judge in the trial Court held that the Defendant was in default for the month of October 1958 as neither the tender nor deposit was valid both being beyond the,, prescribed time, but since the. Defendant No. 1 had redeposited the rent for the month of October 1958 u/s 17(1) he would be entitled to protection against eviction.

During the trial neither the Defendant No. 1 nor any of the Defendants Nos. 2 to bi the alleged sub-tenants, were examined-as witnesses although the learned Judge relied upon a letter, Ex. 2, written by Defendant No. 2 and a G.D. entry, Ex. 1, made on her behalf to find subletting by Defendant No. 1; the Plaintiff had made an attempt to summon the Defendant No. 2 as a witness at that stage but had not been successful to bring her to Court.

Against that decree for eviction, the Defendant No. 1, Appellant, preferred an appeal which was, however, dismissed by the learned District Judge who affirmed the decree.

The Defendant No. 1 came up to this Court in a second appeal and this Court came to the conclusion that the Courts below having based their, decision on the question of sub-letting on a letter, Ex. 2, and a G.D. entry, Ex. 1, both at the instance of the Defendant No. 2 who had not been examined as a witness, such finding cannot be upheld, this Court thought that the letter, Ex. 2; would riot be admissible and at any rate would not be of much assistance and the G.D. entry, Ex. 1, would be somewhat weak evidence unless, the said Defendant No. 2 be examined; this Court, therefore, by its order dated February 27, 1964, remanded the case to the lower Appellate Court directing the said Court to take additional evidence of any of the alleged sub-tenants, if necessary, by having recourse to coercive process and also directed the said Court to give an opportunity to the Defendant No. 1 to adduce evidence in rebuttal; this Court further directed that it would be open to the Plaintiff to support the decree on his plea of default in terms of the provisions of Order 41, Rule 22 of the Code of Civil Procedure.

After the aforesaid order of remand from this Court the Defendant No. 2 was examined as a witness for the Plaintiff who in her evidence clearly established that she was a sub-tenant under the Defendant No. 1 in respect of the suit premises, and she used to pay the rent without any receipt through one Sri S.K. Sen; she was cross-examined, but she denied that she ever lived in the suit premises in any manner other than as a sub-tenant. It further appears that after the remand the Defendant examined himself; in his evidence he clearly stated that the pro forma Defendants were brought in under his own instructions conveyed in writing to Sri S.K. Sen, a co-tenant of his (who according to the evidence of Sri S.K. Sen is a brother-in-law of Defendant No. 1), but the Defendant No. 1 claimed that the Defendants Nos. 2 to 5 were brought in not as sub-tenants but as licensees; the alleged instruction in writing given to Sri S.K. Sen Was, however, not produced. The letter, Ex. 2, was formally proved after the remand by Defendant No. 2.

On such additional, evidence as also the evidence already on record, the learned Additional District Judge again affirmed the findings of the trial Court that the Defendant No. 1 had sub-let the suit premises without the consent of the landlord disentitling him to the protection under the said Act.

The learned Additional District Judge this time. However, disagreed with the findings of the learned trial Judge on the question of default; he came to the conclusion that on the, evidence both of the Plaintiff and the Defendants there was no evidence of tender of rent to the Plaintiff prior to the deposits with the Rent Controller; according to the learned Judge, the very reasoning by which the trial Court had found the Defendant No. 1 to be in default for the month of October 1958 was equally applicable to the deposits for all the months succeeding thereto and upto the suit to make them invalid deposit in law; according to him the Defendant No. 1 not having redeposited the rents for those months he must be deemed to be a defaulter who has forfeited his protection under the said Act.

On such findings the learned Additional District Judge affirmed the decree for eviction, hence this appeal.

Mr. Amarendra Mohan Mitra had urged three points in support of the appeal. First, he contends that upon the finding of the Court of Appeal below it was Sri S.K. Sen who had inducted the Defendants 2 to 5 as sub-tenants, but as Sri S.K. Sen was neither a tenant nor a person residing with the tenant in the premises and the act of sub-letting by him would not disentitle the tenant Sri S.B. Sen, the Appellant, from protection under the said Act. Mr. Mitra has secondly contended that it appears from the evidence that in or about the month of January or February 1960, the Defendants 2 to 5 were removed from the suit premises and naturally sub-tenancy, if any, in their favour came to an end at that time and under provisions of Section 13(1)(a) there can be no decree for eviction on the ground, of sub-letting unless the subletting subsists till the date of the decree. Lastly, Mr. Mitra has argued that the Court of Appeal below was in error in allowing the Plaintiff to make out a case of default by reason of deposits not being preceded by valid tender inasmuch as such a case was not made by the Plaintiff in his plaint; he has drawn my attention to para. 4 of the plaint.

Mr. Jitendra Kumar Sen Gupta, appearing on behalf of the Plaintiff-Respondent, has contended that there, has been a concurrent finding by both the Courts below that there has been a sub-letting of the suit premises and that such sub-letting was made by the Defendant No. 1; he contends that this is a finding of fact which is binding on this Court in this second appeal; in reply to the second point urged on behalf of the Appellant Mr. Sen Gupta has contended that it would be improper to construe the provisions of Section 13(1)(a) in the manner suggested by Mr. Mitra and to hold that in order to sustain a decree on the ground of sub-letting, the sub-letting must subsist till the date of the decree, on the last point Mr. Sen Gupta''s reply is that his client has made a specific case in para. 4 of the plaint that the Defendant No. 1 is a defaulter and that the Defendant No. 1 has not paid any rent since October 1958; he contends that on the pleading in both the Courts below, parties had ample notice of the fact that such default was the result of deposits of rent being invalid in law not being supported by lawful tender; according to him parties had adduced evidence on the point and, as such, in deciding the question of default the lower Appellate Court was justified in entering into the question whether the deposits were preceded by lawful tender to make them valid deposit in law.

On the first point, I am of opinion that there is no substance in the contention of Mr. Mitra; the Courts below and in particular the Court of Appeal below have considered and referred to material evidence to hold that Sri S.K. Sen, the brother-in-law of the tenant Appellant Sri S.B. Sen, was not only put in possession of the suit premises by the Appellant but that Sri S.K. Sen was acting as his agent all along the lower Appellate Court overruled a similar contention made on behalf of the tenant Appellant to, the effect that Sri S.K. Sen, while sub-letting the suit premises to the Defendants 2 to 5, was acting without any authority and, as such, the alleged sub-letting cannot be said to be sub-letting by the Defendant No. 1. I not only agree with the reasonings and conclusions of the learned Additional District Judge but also agree with Mr. Sen Gupta who has appeared on behalf of the Plaintiff-Respondent that essentially it is a finding of fact arrived at on consideration of evidence.

In any event it is difficult to appreciate this objection on behalf of the tenant Appellant in view of his own evidence given after remand; I have already referred, to his evidence in this respect wherein he had himself admitted that the Defendants Nos. 2 to 5 were brought in really by him and that Sri S.K. Sen handed over the key of the suit properties to the said Defendants only under his own instructions; of course he claimed that arrangement was one of a licence and not of tenancy, but if other evidence on record clearly establishes that the arrangement by which the Defendants Nos. 2 to 5 came in was that of a tenancy, then the question raised by Mr. Mitra as to the authority of Sri S.K. Sen does not really arise for consideration.

Next, I go over to consider the second argument of Mr. Mitra. True, it is a question of law. It is a question which was not raised in any of the Courts below. It has been raised in this Court for the first time as a question of law. Mr. Mitra asks me to hold that Section 13(1)(a) requires that a tenant in order to forfeit his protection against eviction under the Act must not only be guilty of an act of sub-letting but that such sub-letting must subsist till the date of the decree for eviction that is to be passed by the Court. I am unable to accept such a construction of Section 13(1)(a) for the simple reason that the words used do not convey such a sense; in my opinion in order to accept a construction of the section in the manner suggested by Mr. Mitra would be to read into the section something which is not there. Terms of the section nowhere suggest that sub-letting must subsist till the date of the decree. In my view the simple and explicit meaning of Section 13(1)(a) is that the Legislature did not propose to give any statutory protection to a tenant who transfers, assigns or sub-lets the premises without the previous consent in writing of the landlord. Protection is intended to be limited to a tenant who retains to himself the use and enjoyment of the whole premises unless a contrary arrangement is agreed between the tenant and the landlord. Rule of construction does not permit me to deviate from this ordinary meaning of the section and incorporate into the section a further limitation that not only should the tenant be guilty of sub-letting but such sub-letting should subsist till the date of the decree to invoke the mischief for die sub-letting flowing from the section. Mr. Mitra has laid emphasis on the words ''no order or decree for recovery of possession should be made'' to support his argument. But those words in the main body of the section govern all the clauses and in my opinion that does not lead to the conclusion that the ground set out therein must exist on the date of decree. Had it been so in a sense Section 24 of the said Act would be wholly redundant and provisions of Section 17 unmeaning. Faced with this difficulty Mr. Mitra has tried to distinguish other clauses of Section 13 from Clause (a) on the basis of the language used and confine his suggested construction to Clause (a) above, but I do not find anything distinguishable in the words used in Clause (a) to give it a special meaning as suggested by Mr. Mitra.

Mr. Mitra, however, has drawn my attention to the fact that this Court has construed Section 13(1)(f) to find out the requirement to be the requirement as prevailing on the date of the decree. He has relied upon the cases of Bhutan Singh v. Ganendra 84 C.L.J. 157 and Petroleum Workers'' Union v. A. Mohammed AIR 1957 Mad. 33, to support, his contention. But in my view there is substantial difference between the two clauses. In disposing of a claim of ejectment on the ground of requirement u/s 13(1)(f), the Court is called upon to consider whether the requirement is reasonable or not, and in doing so it does naturally look into the circumstances which prevail at the date of adjudication to find out whether the requirement is reasonable; but such principle, in my opinion, cannot be invoked in the matter. of interpreting Section 13(1)(a) of the Act; in my view it is enough for the landlord to prove that the tenant Defendant had either transferred or assigned or sub-let the premises on the date when he institutes the suit inasmuch as such transfer, assignment or sub-letting gives him the right to sue for possession the tenant having forfeited his protection against eviction; the view that I have taken finds support from the decision of the Supreme Court in the case of Mangilal Vs. Suganchand Rathi, ; accordingly I overrule the second contention of Mr. Mitra.

The above findings are in my opinion sufficient to dispose of the appeal because any one of the two grounds taken by the Plaintiff as grounds for ejectment is sufficient to maintain the decree.

However, as there has been some arguments on the question of default on which the Courts below have differed, it is desirable that I should give my own decision. On this point also I am unable to accept the contention of Mr. Mitra. There is no doubt that the finding of the trial Court in this respect is clearly erroneous; this Court have repeatedly held that no deposit of rent with the Rent Controller is valid unless it is preceded by valid tender in accordance with the law; in my view the learned Judge of tile Court of Appeal below has rightly pointed out that although the Plaintiff has clearly stated in his evidence that there was no tender whatsoever to him prior to deposits and that the tender through money order never reached turn, the Defendants have adduced no evidence to show that there was ever any tender far less any tender according to law; Sri S.K. Sen who was paying rent on behalf it the tenant Defendant, himself admitted that he never tendered rant to the Plaintiff Respondent; only evidence of tender that we get on record is the money order, Ex. A, dated November 28, 1958, but unfortunately on the concurrent findings of both the Courts below such tender was invalid tender in law. The Court of Appeal below was right in pointing out that the trial Court omitted to consider that the deposits with the Rent Controller subsequent to October 1958 were also invalid because there was never, at any point of time, any valid tender of rent to the Plaintiff landlord nor was such rent redeposited u/s 17. The learned Judge in the Court of Appeal below was right in referring to the decision of this Court in the case of B.A. Private Ltd. v. Dalhousie Properties Ltd. 65 C.W.N. 1021, in support of his conclusion that the Defendant must be considered to have forfeited his protection under the Act because of such default.

Mr. Mitra has relied on a decision of this Court in the case of Rani Bala Debi Vs. Kamal Krishna Nath, in support of his contention that it was necessary for the Plaintiff to plead specifically that there was no valid tender and there being no such pleading in the plaint the Plaintiff-Respondent should not have been allowed to raise such an issue in the Court of Appeal below. In my view, his Court in that case found that a plea of invalidity of the deposit (sic) the ground of absence of proper tender was not only not pleaded in the plaint but was not even raised at the trial and no evidence was adduced in course of trial not having done so in course of the trial, it was sought to be raised for the first time in the Court of Appeal below, but the said Court did not allow the Plaintiff landlord to raise such issue; this Court pointed out that the Court of Appeal below was right in not allowing the Plaintiff landlord to make out a case for the first time in the appeal which was not his case at the trial.

In the present case, however, I find that in para. 4 the Plaintiff pleaded default; such a pleading in my opinion would necessarily mean pleading the ingredients constituting the default under the Act; further it appears clear that the parties had ample notice in course of the trial that the case of the Plaintiff in this respect was a case of invalid deposit because of absence of valid tender. The Plaintiff led clear evidence on the point and there was specific cross-examination of the Defendant''s witness Sri S.K. Sen on the point; it is true that in the latter part of para. 4 the Plaintiff had further made out a case that the deposits were not really deposits by the Defendant No. 1, but that does not detract from the case made out in the earlier part of the said paragraph that the Defendant tenant was otherwise a defaulter. I, therefore, hold that the parties had ample notice in the Courts below on the issue as to whether the deposits were valid or not being preceded by valid tender of relative rent to the Plaintiff landlord and the learned Judge in the Court of Appeal below was perfectly justified in going into the question and reversing the finding of the trial Court on grounds which I have already held to be valid grounds.

On the conclusion, as above, this appeal must fail and I dismiss the appeal with costs. I, however, allow the tenant Defendant a period of grace to vacate on terms; 1 direct that the decree for eviction shall not be executable until the expiry of the month of August 1969 provided the tenant Appellant goes on depositing in the trial Court month by month within the 15th of the month succeeding a sum of Rs. 75 (Rupees seventy-five) as mesne profits in favour of the Respondent No. 1, and first such deposit for the month of February 1969 is to be made within March 15, 1969, and I further direct that in default of any one of such deposits in terms hereof the decree would become executable forthwith. In any event, the decree shall be executable on the expiry of August 1969.

Mr. Amarendra Mohan Mitra appearing on behalf of the Appellant has (sic) for leave to appeal under Clause 15 of the Letters Patent, and the prayer is refused.