Order 8 Rule 10 of the Code of Civil Procedure should not act blindly on the averments made in the plaint and passed a judgment merely because the written statement has not been filed by the defendant traversing the facts set out by the plaintiff therein.
CALCUTA HIGH COURT [ ORIGINAL SIDE ]
Subhra Mukherjee vs M/S. Bengal Media Pvt. Ltd
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
Present : The Hon’ble Justice Soumen Sen
C.S. 173 of 2013
For the plaintiff : Mr. Jishnu Chowdhury,
Mr. Soumabha Ghose
Heard on : 26.11.2013, 29.11.13, 03.12.13,
10.12.2013, 17.12.2013, 06.01.2014,
Judgment on : 10th January, 2014
Soumen Sen, J:– The plaintiff has instituted the suit for recovery of possession of the Scheduled portion of Premises No.63, Rafi Ahmed Kidwai Road, Kolkata – 700 016 as described in Schedules A and B to the plaint and other monetary reliefs. The owner of 5000 sq.ft. super built up area on the second floor and 120 sq. ft. area on the roof of Premises No.63, Rafi Ahmed Kidwai Road, Kolkata – 700 016 (hereinafter referred to as ‘first demised portion’) and 1000 sq. ft. super built up area on the ground floor of the said premises (hereinafter referred to as ‘second demised portion’). The plaintiff demised the said portion of the premises to the defendant by and under three documents, namely, 31st October, 2009 and 1st July, 2011 in so far as it relates to the first demised portion and 16th July, 2010, with regard to the second demised portion.
Until determination of the tenancies, the defendant was paying Rs.1,32,000/- per month in respect of the first demised portion and Rs.45,000/- with the regard to the second demised portion. Due to default in making payment of rents in respect of both the demised portions, the plaintiff issued three several notices all dated April 25, 2013, under Section 106 of the Transfer of Property Act and called upon the defendant to quit, vacate and make over khas and vacant possession of the aforesaid tenanted portions within 15 days from the date of the receipt of the said notice. The defendant received the said notices on 25th April, 2013. However, the defendant had failed and neglected to make over possession of the demised portions to the plaintiff. Hence this suit.
In spite of service of writ of summons, the defendant did not enter appearance in the suit. The report of the Deputy Sheriff dated 28th November, 2013 shows that writ of summons have been duly served upon the said defendant. In spite thereof, the said defendant had failed to appear and contest the proceeding.
Although the plaintiff is not obliged to adduce any evidence in view of the failure of the defendant to appear and contest the proceeding in spite of opportunities being given to the said defendant to appear and contest, the plaintiff appears in person as a witness and produced documents to establish her claim in the suit.
The plaintiff has produced oral and documentary evidence to substantiate her claim in the suit. The witness has stated in her deposition that she is the owner of the property in question. The defendant is in occupation of 6120 sq.ft. under two several tenancies. The total rent was Rs.1,77,000/- but after deduction of TDS the plaintiff received Rs.1,60,000/-. The defendant has failed and neglected to pay rent since February, 2013. All the rents collected during the subsistence of the tenancy were deposited with the ICICI Bank, Bhabanipur Branch. In view of the failure to deposit rent, the said two tenancies were terminated by three several notices dated 25th April, 2013 duly signed by the plaintiff. The plaintiff duly identified the signature. The notices were served upon the officers present in the office of Bengal Media Pvt. Ltd. at 63, Rafi Ahmed Kidwai Road, Kolkata tendered by the plaintiff personally.
The copies of the notices were exhibited being Exhibit A (collectively) which would show that the notices were duly served and received by the defendant by putting seal and stamp of the defendant on such notices.
The plaintiff, however, claims that the defendant has failed to pay the electricity and maintenance charges being a sum of Rs.9,32,783/- and Rs.40,000/- respectively. The plaintiff has also claimed mesne profits at the rate of Rs.40,800/- per diem on and from 10th May, 2013. The plaintiff has stated that the agreements dated 31st October, 2009 and 1st July, 2011 in so far as it relates to the first demised portion, are unstamped and unregistered and in so far as the second demised portion is concerned, the agreement dated 16th July, 2010 was termed as leave and licence agreement which had expired on 15th January, 2011 and, thereafter, a monthly tenancy was created upon tendering acceptance of rent at Rs.45,000/- per month. On the basis of the oral and documentary evidence it appears that the defendant is in possession of the suit premises under an unregistered lease and it becomes a tenancy from month to month terminable on the part of either of the parties by 15 days’ notice expiring with the end of a month of the tenancy in terms of Section 106 of the Transfer of Property Act. The ground for termination of the lease appears to be that the defendant has failed to pay the rent since February, 2013. The witness has stated that the last rent received from the defendant was in the month of January, 2013 for a sum of Rs.1,60,000/- after deduction of TDS. Non-registration of the document usually causes two consequences. One is that no lease exceeding one year can be considered to be created and secondly the instrument becomes useless so far as creation of the lease is concerned. Nonetheless, the presumption that a lease not exceeding one year stood created by conduct of parties remains unrebutted. When lease is a transfer of a right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument came into existence would not stand in the way of the Court to determine whether there was, in fact, a lease otherwise than through such deed.
A lease month by month is determinable either by the lessor or lessee by 15 days’ notice expiring with the end of the month. The lessor is not required to give any reason for determination of such lease. However, the plaintiff would be required to establish such claim. There would not be much difficulty in establishing that arrears of rent had fallen due. The witness has said that the composite rent receivable in respect of the demised portions of the premises is Rs.1,60,000/- after deduction of TDS. However, the plaintiff has failed to establish that the aforesaid sum is not inclusive of maintenance charges. The agreement, on the basis of which the claim on account of maintenance and electricity charges has been made, is not disclosed and not accepted.
The notice terminated the tenancy under Section 106 has been duly served in the mode and manner has required under the said section upon the defendant and the defendant notwithstanding the receipt of such notices did not controvert the statements made in the said notices, not the said defendant is contesting the suit, the Court requires the plaintiff to establish its claim on account of maintenance and electricity charges.
Although, it was open for the Court to exercise its power under Order 8 Rule 5 of the Code of Civil Procedure in view of absence of specic denial to the pleadings of the plaintiff and to take the facts stated in the plaintiff as admitted the Court in its discretion required certain facts to be proved in this proceeding otherwise than by such admission in its anxiety to ensure that merely by absence in finding and/or decision arrived at by this Court may not cause any prejudice to the non- appearing and non-contesting defendants. In fact, in a recent decision reported in 2013 (4) SCC 396 (Shantilal Gulabchand Mutha Versus Tata Engineering And Locomotive Company Limited & Another), the Hon’ble Supreme Court considering the provisions of Order 8 Rule 10 of the Code of Civil Procedure stated that the Court should be little cautious of any proceeding under Order 8 Rule of the Code of Civil Procedure and should not act blindly on the averments made in the plaint and passed a judgment merely because the written statement has not been filed by the defendant traversing the facts set out by the plaintiff therein. It was stated that before the judgment is passed, it must be ensured that even if the facts set out in the plaint are treated to have been admitted, a judgment would possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of court’s satisfaction and, therefore, only on being satisfied that there is no fact which need to be proved on account of deemed admission, the Court can conveniently pass a judgment against the defendant who failed to file the written statement. However, if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaintiff itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. (Balraj Taneja v. Sunil Madan; AIR 1999 SC 3381) The evidence of Lalit Mohan Patra, the second witness on behalf of the plaintiff with regard to maintenance and electricity charges appears to be unconvincing and by and large hearsay. The plaintiff has failed to prove its claim on account of maintenance and electricity charges. There is no evidence on record to show that the maintenance and electricity charges constitute components of the rent. It is also not the plaintiff’s case that the electricity consumed by the defendant has been paid by the plaintiff on account of the defendant to the CESC Ltd. and the claim on account of electricity is for reimbursement purpose only. In view thereof, this Court is not inclined to pass any decree on account of maintenance and electricity charges. However, on the basis of the evidence on record, the plaintiff is entitled to a decree for recovery of khas possession of the demised portions as mentioned in Schedule A and Schedule B of the Plaint.
The plaintiff has not adduced any evidence in support of its claim for mesne profits. The learned Counsel appearing on behalf of plaintiff, however, submits that since the tenancy has been determined only recently and the last rent paid represents a reasonable letting out value of the said premises, the Court may determine mesne profits at the rate of Rs.1,77,000/- per month from 1st June, 2013 till recovery of possession. This Court accepts the submissions made on behalf of the plaintiff. Accordingly, there shall be a decree for recovery of khas possession of the demised portions as mentioned in Schedule A and Schedule B of the Plaint. There shall also be a decree for mesne profits at the rate of Rs.1,77,000/- per month from 1st June, 2013 till recovery of possession. The plaintiff shall also be entitled to a decree for a sum of Rs.3,54,000/- being the arrears of rent. The said amount shall carry interest at the rate of 8 per cent per annum till realization.
The Department is directed to draw up the decree as expeditiously as possible.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.
(Soumen Sen, J.)