Sri Mahesh Kumar Lal & Ors. vs Azahar Ali & Ors.

This second appeal is directed against the judgement and decree dated 18th May, 2015 passed by the learned Additional District Judge, Fast Track Court, Chandernagore, Hooghly in Title Appeal No. 53 of 2009 affirming the judgement and decree dated 25th February, 2009 passed by the learned Civil Judge (Junior Division), Additional Court, Chandernagore in Title Suit No. 4 of 2009 at the instance of the defendants/appellants.

Let us now consider the merit of the appeal to find out as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure or not.

Here is the case where we find that the plaintiff/respondent filed a suit for eviction against the defendants on the ground of default in payment of rent and also on the ground of subletting of the suit premises by the tenants viz., the defendant nos. 1 to 5 to defendant no.6. An eviction notice was served upon the defendant nos. 1 to 5. Since the said defendants did not vacate the suit premises in compliance of the said eviction notice, the instant suit was filed by the plaintiff for eviction of the defendants after expiry of the notice period.

The defendant nos. 1 to 5 did not contest the said suit by filing written statement. The defendant no.6 only contested the said suit by filing written statement contending therein that he was a direct tenant under the erstwhile land owner viz. Pramod Bandopadhyay since 1975. He, thus, denied the plaintiff''s allegation regarding subletting of the suit premises by the defendant nos. 1 to 5 to the defendant no.6.

Learned Trial Judge held that the plaintiff is the owner of the suit property. Learned Trial Judge also held that the defendants are defaulters in payment of rent. The learned Trial Judge also held that the defendant no.6 has not been able to prove his tenancy under the erstwhile owner by producing any rent receipt. The said defendant claimed that rent receipt was not granted by the erstwhile owner in his favour, though he accepted rent from the said defendant on personal tender. In these set of facts, the learned Trial Court held that since he did not opt for the remedy available under Section 25(2) of the West Bengal Premises Tenancy Act, 1956, his claim for payment of rent without receipt being granted by the landlord cannot be believed. Thus, the learned Trial Judge disbelieved the claim of the defendant no.6 that he was inducted in the suit premises as a tenant by the erstwhile owner.

Learned Trial Judge, thus, came to the conclusion that the defendant nos. 1 to 5 sublet the suit premises to the defendant no.6. Thus, a decree of eviction was passed by the learned Trial Judge in favour of the plaintiff both on the ground of default in payment of rent and also on the ground of subletting.

Being aggrieved by and dissatisfied with the said judgement and decree of the learned Trial Judge, the defendants preferred an appeal before the learned first Appellate Court. Learned first Appellate Court dismissed the said appeal by affirming the findings of the learned Trial Judge both on the ground of default in payment of rent and also on the ground of subletting. Learned first Appellate Court held that the defendant nos. 1 to 5 were defaulters in payment of rent since May 1997.

Learned first Appellate Court also held that the defendant no.6 failed to establish his tenancy under the erstwhile owner in the suit premises. Learned first Appellate Court held that the defendant no.6 is carrying on business under the name and style of "M/s. Jenco" in the suit premises after obtaining necessary licence from the Municipal authority. Thus, on such findings, the learned first Appellate Court dismissed the said appeal and maintained the decree of eviction passed by the learned Trial Judge.

The legality of the said judgement and decree of the learned first Appellate Court is under challenge in this second appeal.

Mr. Basu, learned advocate appearing for the appellants argues that the plaintiff has not been able to prove creation of sub-tenancy by the defendant nos. 1 to 5 in favour of the defendant no.6. He, further submits that the date of creation of sub-letting has neither been pleaded in the plaint nor been proved in course of hearing of the suit. He further contends that both the courts below should have dismissed the suit, as eviction notice was not served upon the subtenant before filing the suit. Mr. Basu, thus, invites this Court to interfere with the judgement and decree of the learned courts below.

Let us now consider the acceptability of such submission of Mr. Basu in the facts of the instant case.

It is settled law that in a suit for eviction on the ground of subletting, the plaintiff need not prove the factum of such subletting in order to get a decree in the suit. What the plaintiff is required to prove in such a suit, is that the defendant has lost control over the suit property and the suit property is being used and enjoyed by a person who is not the tenant of the suit premises and once these facts are proved by the plaintiff, the burden of proving that the person who is in possession of the suit premises, is not a sub-tenant lies upon him.

Here in the instant case, we find that the defendant nos. 1 to 5 are not using the suit premises. The defendant no.6 is carrying on business in the suit premises in the name and style of "M/s. Jenco" after obtaining trade licence from the Municipal authority. It is not the case of the defendant no.6 that he is not possessing and/or occupying the suit premises. It is he who will have to prove that the suit premises was not sublet to him. He claimed that he was a direct tenant under the erstwhile owner. But, he could not prove his claim for his induction in the suit premises by the erstwhile owner. He stated that though he tendered rent to the erstwhile owner, but he did not issue any rent receipt. It is also an admitted position that he did not opt for remedy which was available to him under Section 25(2) of the West Bengal Premises Tenancy Act, 1956. When under such circumstances, both the courts below held that the suit premises was sublet by the defendant nos. 1 to 5 to defendant no.6, we do not find any apparent illegality in such findings of the courts below.

Section 13(6) of the West Bengal Premises Tenancy Act, 1956 requires eviction notice to be served by the landlord upon the tenant. The said provision does not contemplate for service of eviction notice upon the sub-tenant. As such, non-service of notice upon the sub-tenant cannot render the eviction decree ineffective.

Section 13(2) of the West Bengal Premises Tenancy Act only provides that if the sub-tenancy is notified and/or created with the consent of the landlord in writing, then the notified sub-tenant is required to be added as party in the eviction suit. Even though the defendant does not claim that he is a notified subtenant, still then, he was impleaded as party in the said suit. As such, he cannot have any grievance in the suit for non-service of eviction notice upon him before filing the suit. Subletting for any length of period, however, negligible it may be, attracts the ground of eviction under Section 13(1)(a) of the West Bengal Premises Tenancy Act. As such, we do not find any illegality in the order impugned for passing a decree of eviction on the ground of subletting even in the absence of any specific date was mentioned in the plaint regarding creation of such sub-tenancy.

That apart, here is the case, where we find that the eviction suit was decreed also on the ground of default in payment of rent. Thus, even if the ground of subletting is ultimately held to be not proved in the instant case, still then, the decree of eviction which was passed on the ground of default in payment of rent can very well be sustained. As such, we do not find involvement of any substantial question of law in this second appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure. We, thus, decline to admit this appeal.

The appeal, thus, stands dismissed. Re: CAN 2547 of 2017

(an application under Order 41 Rule 27 of the C.P.C.)

In connection with this appeal, the appellants have filed an application under Order 41 Rule 27 of the Code of Civil Procedure for allowing them to adduce additional evidence. In the said application, the applicants have annexed some receipts granted by the Municipal authority to show their possession in the suit premises since 1975. Possession in the premises for any length of period is not relevant for the purpose of the present suit. What is relevant for the present suit is the legality of possession in the suit premises. The legality of the possession in the suit premises cannot be established by production of the receipts granted by the Municipal authority acknowledging receipt of trade licence fees from the defendant no.6. As such, we dismiss the application being CAN 2547 of 2017 under Order 41 Rule 27 of the Code of Civil Procedure. Re: CAN 742 of 2017 (Stay)

Since we have not admitted the appeal under the provision of Order XLI Rule 11 of the Code of Civil Procedure, no further order need be passed on the interim application for stay. The said application being CAN 742 of 2017 is, thus, deemed to be disposed of.

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.