Sivajivan Sivanarayan vs Roopchand Jammarh

S.P. Rajkhowa, J.—This appeal arises out of judgment and decree dated December 8, 1969, by Sri N. C. Mukh-erjee, Judge, City Civil Court, Fourth Bench, Calcutta, in Ejectment Suit No. 161 of 1987.

The Plaintiff''s case in brief is that the Defendant was a monthly tenant under the Plaintiff in respect of one room on the 3rd floor at premises No. 182, Jamunalal Bajaj Street, Calcutta, at the rental of Rs. 83 per month according to Hindi month, running from Sudi 9 to Sudi 8. The tenancy of the Defendant was determined by an ejectment notice dated August 25, 1966, which was duly served upon the Defendant whereby the Defendant was called upon to quit and vacate the demised room on the expiry of Asoj Sudi 8, 2023 Samvat year (October 21, 1966) and to give vacant and peaceful possession thereof to the Plaintiff. But the Defendant failed to comply with the said notice and he was wrongly holding over. The Defendant is not entitled to any protection under provisions of the West Bengal Premises Tenancy Act, 1956, as the Defendant has not paid rent of the demised since Magh Sudi 9, 2032 Samvat year (January 31, 1966) and he is a defaulter having not paid rent for more than 4 months within a period of 19 months. By amending the plaint the Plaintiff further made a case, of unlawful sub-letting by the Defendant of a portion of the suit premises to M/s. Ram Avatar Satyanarayan without the permission of the Plaintiff. So the Plaintiff prayed for ejectment of the Defendant from the suit premises on the grounds of default in payment of rent and sub-letting without the permission of the Plaintiff.

By filing a written statement the Defendant has put the Plaintiff to the strict proof that the Plaintiff is the proprietor of M/s. Bridhichand Rupchand Jammarh and that he has got the right to sue. In other words the Defendant is denying the title of the Plaintiff. The Defendant''s further case is that no notice was served upon him and that he is not a defaulter and that he has not sub-let a portion of the suit premises to M/s. Ram Avatar Satyanarayan.

The learned Judge has found that the notice to quit was duly served upon the Defendant, that the Defendant was inducted in the suit premises by the Plaintiff and so the Defendant cannot challenge the title of the Plaintiff and, as such, the Plaintiff has the right to sue, that the Defendant is not a defaulter and he is entitled to get protection under the provisions of the West Bengal Premises Tenancy Act and that the Defendant has sub-let a part of the suit premise to Ram Avatar Satyanarayan without the permission of the Plaintiff and decreed the suit on the ground of sub-letting. Hence the appeal.

The Plaintiff/Respondent has also filed a memorandum of cross-objection, contending inter alia that the learned Judge has not decided issue No. 2 in accordance with law, that the learned Judge was wrong in holding that it was the admitted position that the Defendant had deposited all arrears of rents and that the Court below ought to have found that the deposits being all invalid deposits with the Rent Controller, the Defendant failed to comply with the provisions of Section 17(1) of the West Bengal Premises Tenancy Act, 1956, and, therefore, the Court below ought to have decreed the suit also on issue No. 1, i.e. on the ground of default.

The learned Counsel for the Appellant has submitted that the Plaintiff has failed to prove that he is the sole owner of the suit premises or that he is the sole landlord of the Defendant. He has raised this point on the basis of evidence, given by the Plaintiff as P.W. 5. He has deposed that Bridhichand, who is dead, was his father and the property belonged to him. Their family was joint and the family consisted of Bridhichand who had died leaving 2 sons including the Plaintiff, the widow of Bridhichand and 2 daughters out of whom one had died. During his life-time Bridhichand by a deed gave the suit premises to the Plaintiff and another house to his brother, but he could not show any paper that his father gave the suit premises to him. He granted the rent bills which are marked Ex. B series. He was paying Corporation tax in the name of Bridhichand Rupchand Jammarh. We have checked Ex. B series. We find that these rent receipts were issued on behalf of Bridhichand Rupchand Jammarh.

The Plaintiff has filed the suit describing him as the son of late Bridhichand Jammarh who was the proprietor of M/s. Bridhichand Rupchand Jammarh of 188, Jamunalal Bajaj Street, Calcutta, in the cause title. So it is seen that late Bridhichand was the proprietor of the firm. But although the Plaintiff is the son of late Bridhichand yet he has not proved that he is the sole owner or proprietor of the firm after the death of his father. So the point is whether the Plaintiff can alone file the suit without joining his mother, brother and sister as co-Plaintiffs. A similar issue cropped up before the Supreme Court in the case of Kanta Goel Vs. B.P. Pathak and Others, In that case a landlord let out his premises to a tenant. After his death his heirs succeeded to his estate. One co-heir received rent on behalf of the estate. Under the facts and circumstances it was held that the said co-heir would be treated as landlord and would be entitled to sue for eviction of the tenant qua landlord. The Supreme Court has, also held in Subhendu Prosad Roy Choudhury and Others Vs. Kamala Bala Roy Choudhury and Others, that notice by a co-owner terminating the tenancy is valid even if the other co-owner did not join and such co-owner serving notice is entitled to file the suit for eviction. The Defendant has admitted that he is a tenant under M/s. Bridhichand Rupchand Jammarh vide Para. 8 of the written statement. As such, we overrule the contention of the learned Counsel for the Appellant and hold that the Plaintiff has the right to sue for the ejectment of the Defendant.

The learned Counsel for the Appellant has submitted that the Plaintiff''s notice dated August 25, 1966, being solely on the ground of default, he cannot avail of the alleged ground of sub-tenancy. His further contention is that the sub-tenancy has not been proved. It is true that the suit was filed on the ground of default and to that effect the notice to quit was served. Subsequently the plaint was amended and the ground of sub-tenancy was incorporated. The West Bengal Premises Tenancy Act contemplates that before filing a suit for ejectment a notice is to be served to the tenant determining the tenancy and asking the tenant to quit and vacate the suit premises. The act does not contemplate that a fresh notice is required to be served if subsequently the plaint is amended and a new ground for ejectment is incorporated.

As such, we do not agree with the learned Counsel that before taking the ground of sub-letting the Plaintiff was required to serve another notice upon the Defendant. As regards his arguments on this point, we have gone through the evidence tendered by P.W. 1, Satyabrata Sinha. He is an Inspector of the Directorate of Textile. According to his statement, Ram Avatar Satyanarayan was a licensee under the Cotton Cloth Control Order and he ran his business at 192, Jamunalal Bajaj Street. On February 10, 1967, Ram Avatar informed the Directorate of Textile that he had decided to shift his business at the 3rd floor of 188, Jamunalal Bajaj Street. As per order of his superior, he inspected the spot and submitted a report on February 21, 1967, marked Ex. 1.

After that, an administrative order was passed and the licence of Ram Avatar was amended. The licence was marked Ex. 3 and the application for shifting the business was marked Ex. 4. The evidence of P.W. 1 clearly proves that the Defendant had sub-let a part of the suit premises to a third person. The Plaintiff''s contention is that this sub-letting was done without his knowledge or consent in writing. As such, the onus fell upon the Defendant to counter this contention of the Plaintiff by bringing on record any piece of evidence which could help tie Court to hold in favour of the Defendant. The learned Counsel for the Respondent has referred to Shalimar Tar Products Ltd. Vs. H.C. Sharma and Others, wherein it was held that in a case of sub-letting consent of the landlord must be obtained in writing and this provision of law cannot be regarded as directory and that requirement cannot be waived. Under the facts and circumstances and in view of the propositions of law as discussed, we hold that the Defendant is guilty of sub-letting a part of the tenanted premies without the consent of the landlord:

We now take up the contention of the learned Counsel for the Respondent relating to the memorandum of cross-objection. The learned Counsel has submitted that the learned Court below has decided the point of default in favour of the Defendant without proper appreciation of the evidence on record. We have seen that issue No. 1 was on the point of default and the learned trial Judge while discussing the issue has stated that it is the admitted position that the Defendant has deposited all arrears of rent and nothing is due from the Defendants to the Plaintiff towards arrear of rent and so the Defendant was not a defaulter and he was entitled to get protection under provision of the Act. From the order-sheet of the lower Court record we find that on May 26, 1967, the Defendant filed the petition u/s 17(2) of the West Bengal Premises Tenancy Act praying for determination of the dispute as alleged in the petition.

On July 14, 1967, the Defendant filed rent receipts and a challan and the learned Judge ordered

It appears that the Defendant has deposited the alleged arrears of rent as per challans filed. The question of default shall, therefore, be decided at the time of final disposal without prejudice to the interest of parties. The application u/s 17(2) is thus disposed of.

When the suit was finally disposed of the learned Judge has observed under issue No. 1.

It is the admitted position that the Defendant has deposited all arrears of rent and nothing is due from him. We were wondering wherefrom the learned Judge had come to such a finding. However, while scanning the evidence given by P.W. 2, we find that he has made one statement to the effect that they had deposited subsequently the entire amount in Court and this statement was not subjected to cross-examination. Under the circumstances we agree to the finding of the learned trial Judge that the Defendant is not a defaulter.

In the result both the appeal and the memorandum of cross-objection an dismissed. The impugned judgment and decree are hereby conffirmed.

S. Ahmed, J.: I agree.