SRI ANNADA KUMAR BISWAS Vs. SANDHYA RANI BISWAS
LAWS(CAL)-2010-11-59
HIGH COURT OF CALCUTTA
Decided on November 23,2010

SRI ANNADA KUMAR BISWAS Appellant
VERSUS
SANDHYA RANI BISWAS Respondents


Referred Judgements :-

SRINIWAS RAM KUMAR V. MAHAVIR PRASAD AND ORS. [REFERRED TO]
BHAGWATI PRASAD VS. CHANDRAMAUL [REFERRED TO]
BHAGABANDAS AGARWALLA VS. BHAGWANDAS KANU [REFERRED TO]


JUDGEMENT

- (1.)THE judgment of the Court was as follows: This Court has heard the learned Advocates for the respective parties.
(2.)THE appellant filed T. S. No. 333 of 1997 against the respondent and other persons for a declaration that he is a tenant under the respondent in respect of the property in dispute. THE appellant's case was that he being a monthly tenant under the respondent at an yearly rent of Rs.5000/- the appellant has been in exclusive possession of the suit property where he carries on his business. THE respondent and another defendant in the said suit contested the said suit by filing written statement. THE respondent's case was that the appellant who came from Bangladesh was permitted to carry on the business of the respondent as a caretaker so that the appellant and his family could make a living out of the income from the said business, as the relationship was cordial. According to the respondent, the appellant committed a breach of trust and procured certain paper concerning the business in his own name to make a wrongful gain. THE respondent's further case was that the appellant was never a tenant in the suit property.
The respondent filed T. S. No. 441 of 1998 which was rernumbered as T. S. No. 158 of 2002 against the appellant praying for recovery of possession of the suit property by ejecting the appellant therefrom. The respondent's case was that the appellant accepted his position as a caretaker of the said business but being ill advised by his brother Haridas the appellant filed the said T. S. No. 333 of 1997 wherein he claimed to be a tenant. The respondent's further case was that on being legally advised, the respondent revoked the licence granted to the appellant and subsequently issued a notice dated 18.9.1998 through his learned Advocate stating that in case such tenancy (as claimed by the appellant in T. S. No. 333 of 1997) is proved then in that event the respondent determines such alleged tenancy with the expiry of the month of October, 1998; and there shall be no relationship of landlord and tenant on the expiry of 31.10.1998; the respondent directed the appellant to make over vacant and peaceful possession of the suit property to the respondent on the expiry of 31.10.1998 and on failure of the appellant to do so the respondent shall file a suit for eviction against the appellant. The appellant failed to comply with the notice dated 18.9.1998 and hence the suit was filed. The suit was filed inter alia on the ground of the respondent's reasonable requirement for own use and occupation. The appellant contested the said suit by filing a written statement.

The aforesaid two suits were heard analogously by the learned Trial Court and the learned Trial Court decreed the said T. S. No. 333 of 1997 in part by declaring that the appellant herein is a bona fide monthly tenant in the suit premises and the respondent and also the defendant No.2 in T. S. No. 333 of 1997 have no right to dispossess the appellant herein from the suit premises without due course of law. The learned Trial Court dismissed the said T. S. No. 158 of 2002.

(3.)THE learned Trial Court found inter alia that the appellant is a tenant under the respondent and not a caretaker. It appears from the judgment of the learned Trial Court that it was argued on behalf of the appellant that as long as the appellant's suit for declaration of tenancy- right is pending and until the appellant is adjudicated as a tenant it cannot be said that the appellant is a tenant in the suit premises. It was also argued on behalf of the appellant before the learned Trial Court that the notice dated 18.9.1998 cannot be treated as a notice under Section 13(6) of the said West Bengal Premises Tenancy Act, 1956 and the said notice is not legally valid and sufficient. THE learned Trial Court found that from Ext.7 (notice) it will appear the respondent did not accept the appellant as a tenant and even in evidence the respondent's witness was not ready to accept the appellant as a tenant and, therefore, the status of the appellant would depend upon the result of T. S. No. 333 of 1997. THE learned Trial Court found that no cause of action for T. S. No. 158 of 2002 arose on and from 1.11.1998 after the expiry of October, 1998 and that the cause of action will arise on the date of result of the T. S. No. 333 of 1997 and that even though notice was served upon the appellant the said notice is not legal, valid and sufficient and the said notice cannot be treated as a notice under Section 13(6) of the said Act of 1956. In view of such findings the learned Trial Court did not decide the issues regarding default in payment of rent and reasonable requirement for own use and occupation.
Challenging the aforesaid judgment and decree passed by the learned Trial Court in T. S. No. 158 of 2002 the respondent filsd T, A, No. 100 of 2004 which was placed before the learned Additional District Judge, Fast Track Court, 6th Court at Alipore. The learned Lower Appellate Court by judgment and decree dated 19th April, 2006 allowed the said appeal by setting aside the judgment and decree passed by the learned Trial Court in T. S. No. 158 of 2002 and by sending T. S. No. 158 of 2002 back on remand to the learned Trial Court for a fresh decision in the light of the issues recast in the body of the judgment after restoring T. S. No. 333 of 1997 to its original file and number. The learned Lower Appellate Court further directed the learned Trial Court to consider the evidence already on record and to decide any application for local inspection, if filed by any of the parties, and to re-write the judgment on the basis of such evidence and local inspection. The learned Lower Appellate Court found, inter alia, that in the proceeding under Section 17(2) (2A) of the said Act of 1956 in the said ejectment suit it was held that appellant was a tenant under the respondent and the appellant had defaulted in payment of rent. The learned Lower Appellate Court found that the order passed under Section 17 (2) (2A) has already been complied with by the appellant and respondent has already withdrawn the amount deposited in Court in connection with the said proceeding.



Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.