Sushil Ranjan Ghosh vs Bimala Basu

S.K. Bhattacharyya, J.—This appeal by the tenant Defendant under Clause 15 of the Letters Patent is directed against the decision of Chittatosh Mookerjee J. in appeal from original decree No. 172 of 1973 affirming those of the Judge, Tenth Bench, City Civil Court, Calcutta, whereby he directed the tenant Defendant to be evicted from the disputed premises.

The suit out of which this appeal arises is for eviction of a monthly tenant at will upon service of notice to quit on the ground of default, reasonable requirement of the Plaintiffs for the purpose of building and re-building and for carrying out certain alterations in the disputed premises as also the ground that the Defendant had been using the premises in dispute for a purpose other than residential for which the premises was let out.

The Plaintiffs alleged that the Defendant was a defaulter from March 1970 onward and the Plaintiffs, accordingly, caused a notice to quit to be issued and served on the Defendant Appellant requiring him to quit and vacate the disputed premises being No. 55B Keshab Chandra Sen Street, P.S. Amherst Street, Calcutta, with the expiry of the month of August 1970, but the Defendant has failed or neglected to comply and hence the suit for eviction.

The Defendant filed a written statement disputing the requirement of the Plaintiffs and raised various objections, but the suit was ultimately contested on the point of legality and service of notice of ejectment inasmuch as the defence of the Defendant was struck out under the provision of Section 17(3) of the West Bengal Premises Tenancy Act (to be hereinafter referred to as the Act) following the Defendant''s failure to make the deposits as per Court''s order in terms of Section 17(2), read with Section 17(2a)(b) of the Act.

In the appeal before the learned Single Judge the Defendant raised two objections. In the first place, if was contended that the Plaintiffs, being owners of specific portions of the disputed premises, could neither jointly sue for recovery of possession of the entire premises nor were they entitled to a decree against the Defendant for the entire property. In the second place, Mr. Sen contended that the notice in question was hot served on the tenant Defendant. Both the contentions were rejected by Chittatosh Mookerjee J. and he dismissed the appeal. Hence, this appeal by the tenant Defendant.

Mr. Sen, learned Advocate appearing for the Appellant, has raised several points for our consideration. In the first place, it is contended that the order dated August 20, 1971, whereby the Appellant was directed to deposit the arrear rent in certain instalments, was an illegal order and the failure on the part of the Appellant to make timely deposit as per the said order did hot, therefore, incur the penalty contemplated in Section 17(3) of the Act. In the next place, Mr. Sen referred to his application filed in this Court under Order 41, Rule 27 of the CPC and sought to adduce additional evidence in regard to a receipt admittedly granted by the then executor to the estate showing deposit of a sum of Rs. 150 by way of one month''s rent with the executor. The legality or validity of notice in question was not disputed before us by Mr. Sen.

Mr. Banerjee, learned Advocate appearing for the Respondents, has challenged the Appellant''s application under Order 41, Rule 27 of the CPC contending inter alia that the grounds set out herein were at best the grounds for a review, but the Court could not consider the receipt even though granted by his clients predecessors by way of additional evidence before the Appellant Court.

Before we take up the points raised by Mr. Sen for consideration, it will be necessary to advert to certain facts which are not in dispute in this case. The premises in dispute along with premises Nos. 53 and 55A Keshab Chandra Sen Street, Calcutta, previously comprised one holding and belonged to Charu Chandra Mitra, father of the Plaintiff No. 1 and maternal grand-father of the Plaintiffs Nos. 2 and 3. The said Charu Chandra Mitra died on May 3, 1950, leaving a Will whereby he bequeathed his properties to his daughters, the Plaintiff No. 1 and Kamala Bala Ghosh, since deceased. The executors took probate of the Will and two of the executors, thereafter, settled the suit property with the Defendant sometime in 1959. Before the property could be fully administered by the executors, two of the executors died and the third executor, who is the Plaintiff No. 3, took out a fresh grant in order to administer the estate as per direction contained in the Will of Charu Chandra Mitra. The said sole executor distributed the assets and made several lots of immoveable assets alleged to the Plaintiff No. 1 and Kamala Bala Ghosh (since deceased) and conveyed the same by a registered deed of conveyance dated February 10, 1968 The said document has been marked Ex. 1. Kamala Bala Ghosh died on August 10, 1967, leaving the Plaintiffs Nos. 2 and 3 as her heirs, who were also appointed executors as per the Will of Kamala Bala Ghosh and obtained probate in respect of the same. The three Plaintiffs, accordingly, claim to represent the entire estate of Charu Chandra Mitra of which the premises No. 55B Keshab Chandra Sen Street was a part. The Defendant is a tenant in respect of the said premises No. 55B Keshab Chandra Sen Street, Calcutta, from the time of the Plaintiffs predecessors-in-interest. It is contended on behalf of Mr. Sen that the different sets of Plaintiffs, having distinct and separate rights in separate portions of the suit premises, could not have coextensive interest in the property for the recovery of possession of which the instant suit was brought. Mr. Sen, accordingly, contended that without partition of the suit premises and apportionment of rent payable to different sets of landlords, the instant suit jointly by the Plaintiffs was not maintainable. We are unable to accept this contention of Mr. Sen. It is true that under the terms of the Will of Charu Chandra Mitra the Plaintiff No. 1 and her sister Kamala Bala Ghosh are to get specific properties including portions of disputed premises and these properties, it is no longer disputed, have since devolved upon the present Plaintiffs and the estate in question has been administered by the executors. Consequently, the three Plaintiffs between themselves represent the estate entirely and a suit by them jointly for recovery of possession could not be defeated on the footing that their interests were not coextensive. The tenancy held by the Defendant still continues to be one and indivisible and the Defendant has become a tenant under the two sets of landlords each having title to specific portions. It is well-settled that the integrity of the tenancy is not in any way affected by the partition inter se among the owners of superior interest, unless there was a fresh contract between the parties to that effect. The Supreme Court in the case of Badri Narain Jha and Others Vs. Rameshwar Dayal Singh and Others, pointed out that partitions amongst several lessees inter se were usually made for convenience of enjoyment of the leasehold, but they did not in any way affect the integrity of the tenancy or make each holder of an interest in it as a separate holder of a different tenancy. Similarly, their Lordships pointed out that allegation of partition inter se among the several owners of a lakheraj holding subject to mokarrari interest cannot in any way affect the integrity of the lease in the absence of an allegation of a fresh contract between the split-up owners of the holding. In the instant case, the Plaintiffs alleged that they reasonably required the premises for partition of the same for allotment of the Plaintiff No. 1 and the other Plaintiffs in order to make out two separate portions, each complete in itself with separate privy, tap, stair-case etc. Till such partition has been fully carried out, there is no split-up of the tenant''s interest and the integrity of the tenancy, in our view, is not in any way affected. It is not the Defendant''s case that as a result of separation of title his tenancy was split-up and the Defendant became a separate tenant under both the sets of landlords. In the absence of anything to show, Section 37 of the Transfer of Property Act, in our view, would be attracted and the benefit of any obligation relating to property as a whole would pass from one to several owners. At best, the Defendant could upon notice plead that he was liable to pay proportion rent to different sets of landlords, but that is not the Defendant''s case. The burden, of obligation, in our view, was not in any way increased and we agree with Chittatosh Mookerjee J. that Section 37 of the Transfer of Property Act is in terms applicable to the facts of the instant case. 1 is objection of Mr. Sen is, accordingly, overruled.

Mr. Sen next contended that the order directing his client LO deposit the arrear rents in certain instalments is am illegal order for the violation of which penalty contemplated in Section 13 of the Act cannot be invoked. The Appellant by order No. 11 dated August 20, 1971, was directed to deposit the total arrears with statutory interest in three equal and successive monthly instalments commencing from September 1971 and the total amount was calculated at Rs. 741-48 only. According to Mr. Sen, Section 17(2A)(b) enjoins his client to deposit or pay under Sub-section (1) on account of default in payment of rent in such sum, in such instalments and by such dates as the Court may fix. Sub-section (1) lays down that the interest on the amount of arrears is to be calculated at the rate of eight and one-third per cent per annum from the date when such amount was payable up to the date of deposit and on this basis Mr. Sen contends the interest on the admitted arrears should have been Rs. 64-96 and the total amount thus due should have been Rs. 664-96, whereas the Court had directed his client to deposit a sum of Rs. 741-48, presumably on the basis of a wrong calculation made as to the rate of interest for the amount in arrears was admitted, being rent for the period from March to June 1970 at the rate of Rs. 150 per month. Against this amount, Mr. Sen further contends that on the basis of the receipts now sought to be produced by him and tendered in evidence under Order 41, Rule 27 of the Code, he would be entitled to a deduction of Rs. 150 and the total amount as such payable by his client is Rs. 564-96 and since the trial Court went wrong in making the calculation in accordance with Section 17(1) read with Section 17(2A)(b), failure on his part to comply with the direction of the Court would not entail the penalty provided in Sub-section (3) and the Court was not, therefore, justified in rejecting or striking out his defence by its order No. 24 dated June 22, 1972. In our view, this contention of Mr. Sen cannot be accepted in the circumstances of the instant case. In the first place, it is to be pointed out that the order dated August 20, 1971, whereby the tenant Defendant was directed to deposit the amount of arrears with interest thereon, was a consent order made on the basis of the admitted calculation made by the learned lawyers of the parties. If, as it now appears, that the rate of interest was wrongly calculated by the Court, it was so done on a representation made by both parties that the total arrear together with the statutory interest thereon amounted to Rs. 741-48. The parties agreed to deposit the said arrears with interest in three equal and successive monthly instalments commencing from September 1971 and undoubtedly the tenant had failed to make the second deposit in time. Thereupon the Plaintiff applied for expunging the defence of the Defendant u/s 17(3) of the Act. The last two instalments were deposited beyond time and there was no prayer before the Court for condonation of delay. Hence, the Court was reluctantly persuaded to pass the order u/s 17(3) of the Act striking out the defence. Against the said order, the Defendant took time on two occasions to move this Court and the record of the case also discloses that the Advocate of the Defendant was instructed to move against the order for striking out the defence. Mr. Sen accepted the position that this Court was unsuccessfully moved against the said order and if that is so, then it is difficult to see how Mr. Sen can now challenge the order dated August 20, 1971, passed on consent wherein his client was equally guilty of misrepresentation to the Court about the rate of interest payable on the arrear rent. The point was not taken before the learned Single Judge at the time of hearing of the appeal against the original decree and it is for the first time Mr. Sen has canvassed this point before us. It is not the Appellant''s case that had the rate of interest being calculated correctly the deposits made by the Defendant would be in accordance with the order of the Court, nor was it canvassed before us that even after deducting the amount shown in the receipt now sought to be adduced by way of additional evidence, the deposits would be in order. In the circumstances, we are unable to conclude that the miscalculation as to the rate of interest vitiates the order u/s 17(3) so as to call for the intervention of this Court.

Lastly, Mr. Sen pleaded for tendering additional evidence in regard to the receipt dated February 27, 1959, alleged to have been misplaced and taken as missing but was subsequently found out. Mr. Sen, accordingly, relies upon Order 41, Rule 27 of the Cede for the purpose of tendering the receipt and for making it an exhibit before this Court The receipt is dated February 27, 1959 and was admittedly granted by the then executor to the estate of Charu Chandra Mitra and a sum of Rs. 150 was accepted as deposit of one month''s rent in respect of a portion of premises No. 55B Keshab Chandra Sen Street, Calcutta, to be appropriated towards the rent of last month of his tenancy. The tenancy was terminated by notice (Ex. 2) with the expiry of the month of August 1970 and this receipt, even if it is accepted into evidence as per the agreement, could not be appropriated towards the rent for any other month except the month August 1970. On the contrary, the arrears in respect of which the Appellant was directed to put in the amount of Rs. 741-48 related to the rent for the period from March to June 1970. In the absence of any agreement between the parties, the receipt, therefore, could not be appropriated towards the rent for the month of March to June 1970 for payment of which order dated August 20, 1971, was passed. In similar circumstances, a Division Bench of this Court in the case of Ganesh C. Nandy v. J.N. Chatterjee and Bros. 70 C.W.N. 676, relying on the terms of the document (Ex. ''A''), held that it was difficult, to hold from the terms of the document that two months deposit of rent kept with the landlord would be available for being credited against the default committed by the tenant, but their Lordships did not go into the question as even on that assumption the Defendant was still found to be a defaulter. The decision in the case of Gopal Banerjee Vs. Manindranath Dey, relied on by the Appellant does not, in our view, assist him for their Lordships pointed out in that case that in most cases it would depend on the actual terms of the advance payment. In the said case, it does not appear that any condition was agreed upon for adjustment of the advance rent by the parties. Consequently, the decision, in our view, does not assist Mr. Sen in any way.

Even assuming for the argument sake that the receipt is available for being accepted as an additional evidence, it does not assist the Appellant substantially. The receipt, in our view, cannot be accepted by way of additional evidence for the simple reason that the discretion to receive and admit additional evidence is a judicial one circumscribed by the limitations specified in Order 41, Rule 27 of the Code of Civil Procedure. The Supreme Court in the case of Arjan Singh v. Kartar Singh 87 C.L.J. 243 observed that under Order 41, Rule 27 of the Code the appellate Court might require the additional evidence to enable it to pronounce judgment and the true test was whether the appellate Court was able to pronounce judgment on the materials before it without taking into consideration the evidence sought to be produced. The receipt sought to be adduced into evidence in the instant case, on the Appellant''s own showing, was misplaced and was given up as lost but was subsequently found out. Such a document cannot be received as additional evidence under Order 41, Rule 27 of the CPC and a Division Bench of this Court in the case of Sm. Amina Bibi v. Akshoy Kumar Sen 61 C.L.J. 373 held that such a document, even though it was not within the knowledge of the Appellant, could not be received by way of additional evidence, but such a ground may legitimately be one for review. The receipt in the instant case might have as well formed the subject-matter of review, but admittedly the Defendant Appellant did not seek to ask for a review of the trial Court''s judgment even after the receipt was found out. In our view the receipt cannot be accepted as additional evidence under Order 41, Rule 27 of the Code and the prayer of the Appellant, in the circumstances, must be rejected.

In the result, therefore, this appeal fails and is accordingly dismissed. In the circumstances of the case, we make no order as to costs.

Janah, J.

I agree.

S.K. Bhattacharyya and Janah, JJ.

After we pronounced the judgment Mr. Sen appearing for the Appellant prayed for some time for his client to vacate the premises in question. We have carefully considered the matter and we direct that the Defendant Appellant is granted time till December 31, 1975, to vacate the premises in dispute. If within that time the Appellant puts in an undertaking in this Court, the time will be extended upto June 30, 1976, provided the Appellant continues to deposit an amount equivalent to the rate of rent month by month in the trial Court by the 15th of each succeeding month, the first of such deposits is to be made by December 15, 1975. The amount if deposited may be withdrawn by the decree-holder Respondents without furnishing any security.