Smriti Das vs Bodhisatwa Srimany

Nishita Mhatre, J.—Aggrieved by the decision of the City Civil Court in Title Suit No. 608 of 2006, the appellant has preferred the present appeal. The City Civil Court by its order dated 3rd April, 2009 had dismissed the suit filed by the appellant for a declaration that she was a tenant in the suit premises and for a permanent injunction against the respondent landlord.

The appellant''s father, Bimal Kumar Das was a tenant of two rooms, a kitchen and a bathroom on the first floor of the premises at No. 6, Simla Street, Kolkata - 700 006. He was a monthly tenant paying a rent of Rs. 37/- per month in terms of Bengali calendar month. The appellant was living with her parents till her father died on 31st March, 2002. Thereafter, she continued in the premises and according to her, she became a tenant under the West Bengal Premises Tenancy Act, 1997. She paid the monthly rent by money order to the landlord initially and thereafter deposited the rent in Court. According to the appellant, she was constrained to file the suit against the respondent landlord as he was disturbing her peaceful occupation of the tenanted premises and had threatened to evict her.

The respondent landlord contested the suit. The respondent contended in his written statement that the suit for a declaration and permanent injunction was not maintainable as the appellant had not joined the other legal heirs of Bimal Kumar Das as parties to the suit. He pleaded that he had filed Ejectment Suit No. 165 of 2005-C against all the heirs of the erstwhile tenant Bimal Kumar Das, including the appellant. The respondent denied that he had caused any hurdles in the way of the appellant enjoying the suit premises.

Evidence was led before the Trial Court by the parties. The Trial Court, after considering the evidence on record, dismissed the suit. The Court was of the opinion that the suit property had not been described properly by the appellant and therefore no orders could be passed in the suit. It was held that the appellant was not entitled to a declaration that she was the sole tenant of the suit premises because she had not joined the other legal heirs of Bimal Kumar Das as parties to the suit. After assessing the evidence on record, the Court was of the view that the appellant had failed to prove that the respondent had created any obstacle or disturbance to prevent her from using and enjoying the suit premises. As the respondent had filed a suit for ejectment against the appellant the Court rejected the appellant''s prayer for a permanent injunction against the defendant/respondent from ousting her from the suit premises without due process of law.

Mr. Ashesh Kumar Bhattacharyya, the learned Counsel appearing for the appellant, submitted that the Trial Court has erred in dismissing the suit. He pointed out that the description of the suit premises was the same in all the pleadings and it was only a typographical error in the affidavit in evidence filed by the appellant where the suit premises had been described as No. 7, Simla Street instead of No. 6, Simla Street. He drew our attention to the fact that the respondent himself has stated that he had filed a suit for eviction against the appellant in respect of the premises No. 6, Simla Street. Therefore, there was no ambiguity in the description of the suit premises. The learned Counsel then submitted that the appellant is deemed to be a tenant under Section 2(g) of the West Bengal Premises Tenancy Act, 1997 and therefore she could not be refused the declaration by the Trial Court. The learned Counsel has pointed out that the appellant''s father who was a doctor had wished that the appellant should continue to occupy the tenanted premises as she was the only person looking after him and his wife during his illness. The learned Counsel has also pointed out that the Delhi High Court in the case of Govind Dass and Others Vs. Kuldip Singh, AIR 1971 Delhi 151 : (1970) 1 ILR Delhi 585 has interpreted the word ''dependent'' contained in the Delhi Rent Control Act to mean persons who could not be financially dependent but include those who are dependent on the landlord for residential accommodation. The learned Counsel submits that a similar meaning should be adopted while interpreting Section 2(g) of the West Bengal Premises Tenancy Act.

We have perused the pleadings and the evidence on record. It is apparent that the appellant had sought a declaration that she was a tenant in respect of the premises at No. 6, Simla Street. The schedule to the plaint describes the property as aforesaid. In his written statement the respondent has stated that the appellant had inherited the tenancy at No. 6, Simla Street. It is only in the beginning of the affidavit in evidence that the premises have been described as No. 7, Simla Street instead of No. 6, Simla Street. However, in the paragraph 3 of the affidavit in evidence of the appellant again, the premises have been described as mentioned in the schedule to the plaint. However, the parties are ad idem about the premises in respect of which the plaintiff/appellant claimed that she was the tenant. There is no dispute between the parties that the appellant''s father was the tenant in respect of the two rooms, one kitchen and a bathroom on the first floor of the premises at No. 6, Simla Street and that the appellant was claiming the tenancy of these premises.

Therefore, in our opinion, the finding of the Trial Court that the tenanted premises had not been described properly is incorrect.

The Trial Court has dismissed the suit on the ground that the appellant has not joined the other heirs of the deceased tenant, Bimal Kumar Das as parties to the suit. The Trial Court was of the view that the suit was defective for not joining all the necessary parties when the appellant claimed that she was a sole tenant in respect of the suit premises.

It is true that the appellant was one of the legal heirs of Bimal Kumar Das. However, in her plaint she has not sought a declaration that she was the sole tenant in respect of the suit premises. Her prayers in the suit are for a declaration that she is a tenant in lawful possession of the suit premises and for a permanent injunction restraining the defendant and his agents from ousting her from the suit premises without following due process of law. The record indicates that the respondent has filed an ejectment case against the appellant. However, the Trial Court has denied the appellant any relief on the ground that the aforesaid suit for ejectment is pending. Even assuming such a suit is pending, the case that the appellant had made out in the present suit was that she, being a tenant of the suit premises, should not be driven out by the landlord without following the due process of law. The aforesaid prayer could have been granted by the Court as the respondent himself had taken steps to evict the appellant from the suit premises by adopting a remedy available to him in law. Therefore, he had set in motion the due process of law to evict the appellant.

Under Section 2(g) of the West Bengal Premises Tenancy Act "tenant" means the spouse, son, daughter, parent and widow of a predeceased son who were ordinarily living with the tenant up to the date of his death as members of his family and were dependant on him and who did not own or occupy any other residential premises. This concession to the members of the family of the deceased tenant is granted for a period of five years from the date of the death of the tenant. The section also provides that the child, parents or widow of the pre-deceased son of the tenant who were ordinarily residing with the tenant in the premises till the death of the tenant shall have a right of preference for tenancy in a fresh agreement in respect of such premises on a condition of payment of fair rent. The evidence on record shows that the appellant was the only child of her father who was ordinarily living with him. She was a member of his family and did not own any other residential accommodation. The evidence on record indicates that it was only the appellant who stayed with her father and not her siblings. The other children of Bimal Kumar Das therefore did not claim the tenancy. It was only the appellant who could claim the tenancy as she fell within the ambit of the definition of "tenant" contained in Section 2(g) of the West Bengal Premises Tenancy Act. We need not consider the aspect as to whether the appellant was dependant on Bimal Kumar Das as the respondent has admitted in his written statement that the appellant is a tenant of the suit premises. The trial Court, unfortunately, overlooked the fact that the appellant had not sought a declaration that she was the sole tenant and therefore dismissed the suit on the ground of non-joinder of parties. In these circumstances, in our view the finding of the Trial Court that all the heirs of Bimal Kumar Das ought to have been made a party to the suit is incorrect.

The appeal is allowed. The appellant is declared the tenant of the suit premises being two rooms, one kitchen and a bathroom on the first floor of the premises at No. 6, Simla Street, Kolkata 700 006. She shall not be evicted without following the due process of law. The appellant is entitled to continue to reside in these premises subject to the decision of the Court in Ejectment Suit No. 165 of 2005-C.

No order as to costs.

Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.