It has been the consistent view both under the 1956 Act and the subsequent rent legislation in 1997 that in the suit by a landlord against tenant for ejectment, the sub tenants are not necessary parties and, therefore, they cannot object to the delivery of possession on the ground that the decree is not binding as they were not made parties to it. Therefore, the decree for ejectment of the lessee can be executed against the sub-lessees although he was not made a party.
Section 116 of the Transfer of Property Act contemplates a bilateral contract between the erstwhile landlord and the erstwhile tenant. On the one hand there should be an offer of taking a new lease evidenced by the lessee remaining in possession of the demised premises after his term was over and on the other hand there must be a definite consent of the landlord to the continuance of possession by the tenant expressed by the acceptance of rent or otherwise. The expression “holding over” is used in the sense of retaining possession. In a case of tenancy holding over, there is no relationship of landlord and tenant.
- The doctrine of holding over does not apply to a person who has never been in occupation as a tenant.
- It is well settled that mere payment of rent without anything else does not automatically leads to an inference of holding over.
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
G.A.1074 of 2015 G.A. 3723 of 2015 G.A. 3725 of 2015 E.C. 346 of 2015 C.S.771 of 1981
BEFORE: The Hon’ble Justice Soumen Sen
Hearing concluded on: 24/07/2018
Judgment Dated: 14/08/2018
Acts: Order 21 Rule 99 read with Section 47 of the Code of Civil Procedure
Soumen Sen, J.:-
St. Mary’s Nursing Home Private Limited is the applicant.
The applicant has filed this application questioning the executability and enforceability of a decree passed in C.S. No.771 of 1981. The instant application has been filed under Order 21 Rule 99 read with Section 47 of the Code of Civil Procedure.
The plaintiffs are the owners of a very valuable property situated at Ho- Chi-Minh Sarani formerly known as Harrington Street, Kolkata. Initially, one Rabindra Chandra Ghose, since deceased, predecessor-in-interest of the present plaintiffs executed a deed of lease dated 10th August, 1960 in favour of the defendant for a period of 21 years commencing from 1st July, 1960 at a monthly rent of Rs.2000/- per month. The said lease deed, inter alia, provided that the defendant would use the said premises only as a Nursing Home, dispensary, cooperative stores, cold storage and for manufacture, distribution and sale of food products and restricts the said defendant to sublet, assign, transfer, underlet or part with possession of the said premises without the previous consent in writing of the lessors. The said lease expired by efflux of time. On the expiry of 21 years, the defendant did not vacate the said premises and continued to remain in possession with effect from 2nd July, 1981.
By reason of such wrongful occupation and failure on the part of the defendant to hand over vacant possession of the property in question, the plaintiff filed a suit on 25th September, 1981 in this Court being Suit No.771 of 1981, praying, inter alia, for a decree for delivery of vacant possession and mesne profits. During the pendency of the suit, the plaintiffs and the defendants agreed to settle their disputes and have filed a terms of settlement in the suit. Under the terms of settlement the defendant had agreed upon the following things:-
(i) The defendant’s claim for holding over was unmeritorious.
(ii) On execution of the terms of settlement, the defendant would deliver the vacant and peaceful possession of the suit premises and
(iii) If the defendant delivers such possession, the plaintiffs would waive their claim with respect to the mesne profits amounting to Rs.1,54,92,67,000/- and interest at the rate of 18% per annum.
Two important recitals in the terms of settlement as are relevant for the present purpose are:
“And Whereas in the above suit the defendant has taken the usual defence of creation of and/or existence of monthly tenancy in favour of the defendant in respect of the said premises.
And Whereas when the suit had appeared in the list of Hon’ble Justice Soumen Sen for final hearing, the Defendant approached the Plaintiff for settlement of the suit in as much as the Defendant had been advised by its Advocates that on the basis of documents and evidence available with the Defendant, the Defendant would not be able to establish its claim of monthly tenancy of the premises but on the contrary the Defendant and/or persons in control and management of the Defendant will be liable for payment of huge amount on account of mesne profits taking into account the long period during which the Defendant continued to remain in occupation of the premises and also the importance of the area in its occupation”.
On September 3, 2013 on the basis of the agreed terms a compromised decree was passed.
The main object of the terms of settlement appears to relieve the defendant from the huge mesne profits that the defendant would be otherwise required to pay in the event the plaintiff succeeds in the suit. The defendant felt that its defence of holding over is not likely to succeed.
The terms of settlement in the recital gives full particulars of sub-tenants and the portions under their respective occupation in a schedule being Annexure ‘A’ to the said terms. The Court having regard to such disclosure allowed compromise with the observation:
“…… there shall be a decree on the basis of the terms of settlement so far as it relates to the parties to the suit.”
Under the lease dated 10th August, 1960, the defendant was not entitled to create any sub-tenancy. The defendant was running a Nursing Home from the said premises. The defendant permitted to run the said nursing home for a period of 21 years as mentioned above. However, the defendant was not permitted to assign, transfer, sub-let or part with the possession of the premises or any part thereof without the consent of the plaintiff. Sometimes in 1972 the defendant appears to have closed down the nursing home and services of all the staff were terminated. Since Dr. Deb appears to have proposed to the defendant to start a nursing home an agreement was entered into on 1st December, 1972 between the defendant and Dr. Deb by which Dr. Deb was allowed to start a nursing home and continued to run the said nursing home till last date of June, 1981 with the option of renewal provided the head lease agreement between the plaintiff and the defendant which was going to expire on 1st July, 1981 is renewed. The said agreement clearly states that Dr. Deb shall not at any time claim to be a sub-tenant under the defendant. Dr. Deb was the sole proprietor of St. Mary’s Nursing Home. Thereafter it appears that St. Mary’s Nursing Home was converted into a partnership and subsequently St. Mary’s Nursing Home Private Limited was incorporated on 24th September, 1974. However, the agreement with the defendant continued to remain in the name of Dr. Deb in his individual capacity as a sole proprietor of the said nursing home. The change of character of the St. Mary’s Nursing Home was never disclosed at any of the earlier proceeding until 27th July, 2007 when the present applicant made an attempt to implead itself as a defendant in the suit.
After expiry of the lease the defendant did not vacate the premises. In the mean time R.C. Ghosh the original owner died intestate on 10th October, 1975 leaving Smt. Durgabati Ghosh, his wife as his only heir and legal representative. The defendant duly attorned the said lease to Durgabati and became the lessee under her. The lease expired on 1st July 1981. The defendant did not vacate the premises and continued to remain in illegal and wrongful occupation since 2nd July, 1981. In view thereof Durgabati, the original plaintiff filed a suit on 25th September, 1981 for recovery of possession and mesne profits. During the pendency of the suit Durgabati died and substituted by the present plaintiffs.
Prior to the filing of the suit on 2nd July, 1981 Dr. Deb filed a suit before the City Civil Court being T.S. no. 1211 of 1981 against Durgabati, Vijoy Kumar Thakkar and Credit Union praying, inter alia, for declaration that he being a lawful monthly tenant of the suit premises is entitled to continue possession of the suit premises without any hindrance from anybody including Durgabati or Thakkar. The cause of action in the said suit appears to be that Durgabati had entered into a lease agreement with Vijay Kumar Thakkar on 22nd May, 1981 for a period of 99 years and under the said agreement Vijay was given the permission to demolish the said building and erect a new one in place of the existing building. The said agreement was entered into in total disregard of the consent and assurance given by Late R.C. Ghosh and Durgabati that even after expiry of the lease between the plaintiff and the defendant Dr. Deb would be allowed to run the nursing home from the suit premises. In view of his rendering humanitarian service to sick and suffering citizens and a large number of persons are gainfully employed by him which enures to their benefit and their respective families. It is plaint it is alleged that Late R.C. Ghosh before his death in writing informed the defendant no.3 regarding his consent to the induction of the plaintiff and at the time of such consent the original plaintiff and their Manager were present. However, Durgabati in total disregard of such assurance has entered into lease agreement dated 22nd May, 1981 with Thakkar and they are threatening and about to evict the plaintiff and a large number of his employees from the suit premises contrary to the terms agreed upon. The said suit was subsequently transferred to this Court and was renumbered as E.O.S. 15 of 1987. During the pendency of the said suit Dr. Deb died in October, 2007. Credit union in its written statement filed in the suit on 22nd July, 1983 took the defence of a tenant holding over after the expiration of the lease. Credit Union during the pendency of the aforesaid suits in 1982 filed a suit against Dr. Deb in the City Civil Court at Calcutta being M.S. No.883 of 1982 for recovery of money amounting to Rs.75,000/- alleged to be due and payable by Dr. Deb in terms of the agreement dated 20th November, 1972. In the said suit Credit Union alleged that on the expiry of June, 1981 Dr. Deb did neither deliver possession of the nursing home nor paid the occupation charges from July 1981 to September, 1982 amounting to Rs.75,000/-. Dr. Deb filed a written statement denying the allegations. In the written statement Dr. Deb appears to have specifically contended that the nursing home was his proprietary concern and Credit Union had no right, title, interest whatsoever in respect of said nursing home. Credit Union has also no right, title and interest in the premises as its lease agreement with the landlady had already expired. The learned Trial Court inter alia on consideration of the agreement and the lease deed arrived at a finding that Dr. Deb was monthly tenant of Credit Union had paid rent to the Credit Union on and from 1st December, 1972 Dr. Deb started a new nursing home under the name and style St. Mary’s Nursing Home. Accordingly the defendant was not a lessee as alleged by Credit Union but Dr. Deb was monthly tenant in the suit premises where he had started his nursing home. The suit of Credit Union was dismissed on 23rd November, 1982. This finding is certainly not binding upon Durgabati and her successors inasmuch as it weakens the assertion of Dr. Deb that he is a monthly tenant under Durgabati.
During the pendency of the two suits in the High Court in C.S. No. 771 of 1981 and E.O.S. 15 of 1987 two applications were filed being G.A. No. 2754 of 1998 in E.O.S. 15 of 1987 and G.A. no. 1079 of 1998 in suit no. 771 of 1981. Justice Ansari as His Lordship then was by an order dated 15th October, 2001 disposed of the applications by giving certain directions with regard to payment by Dr. Deb of the occupation charges and rents arrears, present and future. While disposing of the said application it was stated that Dr. Deb was inducted by the Society on certain terms and condition as pleaded by him. Whether the Society is a proforma defendant merely because no relief is claimed against it in the suit is a matter which would require adjudication in the suit and in the light of the defence that might be taken by the Society under Section 116 of the Transfer of Property Act. With regard to the claim of the Society in G.A. no. 2754 of 1998 that Dr Deb shall pay to the Society occupation charges at the rate of Rs.2300/- per month, hiring charges for furniture fixtures etc. of Rs.5000/- per month and 2/3rd of the Corporation Tax from July, 1981 till date to the Society, it was held that whether the Society or Ghosh or Dr. Deb would be entitled to the said amount need to be adjudicated upon in the suit and depending upon the result of the suit the said amount together with its accretions would be paid to the party who would be found to be entitled to recover such amount in law thereof. Dr. Deb having come into possession as tenant is however, required to honour his part of the obligations until the suit is finally adjudicated upon. The filing of T.S. no. 1211 of 1981 since renumbered as E.O.S. 15 of 1987 cannot confer a right upon Dr. Deb not to pay the monthly rentals or the amounts, which are otherwise payable by the tenant, being the declaration claimed by him, in the suit and as per the averments in the plaint. Whether the tenancy of the Society has been determined or it still has any right in the suit premises are matters still to be adjudicated upon in the suit. Pending adjudication of the same certain rights of the Society need to be protected. In so far as the Corporation taxes are concerned admittedly Dr. Deb was in possession of the premises in question and such taxes being a statutory levy, Dr. Deb is bound to pay the same. With the aforesaid observations directions were passed upon Dr. Deb to pay Rs.5000, Rs.2000 and Rs.300 per month respectively to the joint receivers from October, 2001 as also the Corporation tax.
Immediately prior to the death of Dr. Deb on 27th July, 2007 an application was filed by St. Mary’s Nursing Home Private Limited being G.A. No.2342 of 2007 pray, inter alia, for addition of the present applicant as defendant in the suit. In the application it was alleged that the said company is a de facto tenant wherefrom St. Mary’s Nursing Home is presently functioning. With full knowledge of the fact that the company is the de facto tenant of the substantial portion of the said property and is running the said nursing home therefrom the suit was filed by the plaintiff only against Credit Union without impleading the company as party defendant. In the suit it has been deliberately suppressed that long prior to the filing of the suit, a suit was instituted by Dr. Deb against Durgabati, Vijay and Credit Union and it would be evident from the plaint filed in the said suit that Dr. Deb was inducted as a sub-lessee of the defendant and had agreed to run the St. Mary’s Nursing Home only upon an assurance given by the plaintiffs’ predecessor in interest that the nursing home would be run from the demise premises, even after the expiry of the lease granted in favour of the defendant and it was on the basis of such representation Dr. Deb had made huge investments. St. Mary’s Nursing Home was initially started by Dr. Deb as the sole proprietor thereof. The sub-lease of the demised premises was granted in his name. To the knowledge of the defendant and of the plaintiffs and their predecessor in interest in course of time St. Mary’s Nursing home was converted into a partnership with Dr. Deb and his family members as the partners thereof, which partnership was thereafter taken over by the petitioner company which was incorporated on 1974 for the purpose thereof by Dr. Deb and his family members. This will be evident from the Memorandum of Association of the petitioner. Since the inception of the sub lease and at all material times thereafter all rents corporation taxes and other charges and other statutory outgoings in respect of the demised premises has been paid by St. Mary’s Nursing Home and/or the petitioner. Dr. Deb in terms of the order dated 15th October, 2001 made payment of the outstanding and the current monthly rentals and other charges as well as corporation taxes to the joint receivers appointed in the suit. In terms of the order dated 15th October, 2001 the company as a de facto tenant had made payment of all the outstanding and present monthly rentals. Although in the suit the plaintiffs’ predecessor in interest and thereafter the plaintiffs have sought eviction of the defendant only on the ground of expiry of the lease of 10th August, 1960 by efflux of time, the defendant has filed a written statement in which it has been contended that having tendered rent for at least five months after the expiry of the lease which payment was accepted and cheques encashed by the plaintiffs and/or their predecessor in interest, the defendant has become a tenant holding over the demised premises and as such is not liable to be evicted therefrom.
In such circumstances the petitioner is entitled to continue in possession and occupation of the portion of the premises No. 2/1 Ho Chi Minh Sarani, Kolkata wherefrom it is running the St. Mary’s Nursing Home either on the basis of the independent agreement entered into by Dr. Deb as a direct tenant under the lessor or as a sub-lessee of the defendant as a tenant holding over after the expiry of the original term of lease of 10th August, 1960. The aforesaid material facts had been deliberately suppressed in the plaint. In the event the company is not added as a party in the above suit its interest in the demised premises would be irreparably jeopardized. The company has recently come to learn that the plaintiffs have entered into an agreement with one Merlin Developers and development of the said premises. The said Merlin developers is attempting to compromise the matter with the defendant in which event there is every likelihood that the parties to the above suit will attempt to compromise the same with the malafide intent and object of attempting to obtain a de facto decree of the applicant’s eviction from the premises behind the back of the applicant and without affording any opportunity to the applicant. In the application an interim order was prayed for which was rejected by an order dated 31st August, 2007. In an appeal against the said order the Hon’ble Division Bench by an order dated 12th September, 2007 disposed of the appeal without interfering with the order passed by the Learned Single Judge. The order reiterates that the interest of the applicant is amply protected by the provisions of the Code of Civil Procedure. If a decree is passed against the defendant the applicant still would have the right under the provisions of the Code of Civil Procedure to raise their objections if the decree is sought to be implemented against them.
The said application was finally disposed of by an order dated 7th April, 2009 by stating that the lessor/landlord had got his own discretion to decide as to who should be impleaded as defendants and unless the presence of the third party is found essential for proper adjudication of the dispute, the third party making out its own independent right and title cannot be made a party to the suit. It was recorded in the order that although the applicant claimed to be sub- lessee on the basis of a separate agreement with the landlord but no such document has been disclosed in the said petition wherefrom it would appear that the landlord had recognised the applicant company as sub-lessee. There is nothing on record to show that the landlord had entered into any settlement with the applicant either. If the applicant has got its independent right and interest over the property in question there are ways and means of protecting such right. This order is not under challenge.
In the meantime, Dr. Deb died in October, 2007 and none of his legal heirs or representatives took any steps for substitution in the suit filed by him. The suit accordingly abated. The only significant development that had taken place during this period is an application filed by Credit Union on September 13, 2011 for amendment of the written statement originally filed on April 6, 1989 and by an order dated December 2, 2011 the amendment was allowed. By way of amendment the defendant sought to bring on record correspondence alleged to have been exchanged between the parties after expiry of the said parent lease. The defendant wanted to incorporate certain events allegedly occurred prior to April 1984. The defendant disclosed such correspondence to show that notwithstanding the expiry of the lease the defendant continued to remain in possession and the present plaintiffs have assented to such continuation thereby the defendant became a tenant holding over. This claim of holding over, however, as noticed earlier was given a go bye in the terms of settlement filed in the suit.
In the additional written statement filed on 12th March, 2012 the plaintiffs reiterated that after expiry of the lease by efflux of time no amount was received or accepted by the original plaintiff from the defendant either by way of rent or otherwise the defendant being aware of the bank details of Smt. Durgabati being the original plaintiff had deposited money in such bank account without the consent and concurrent of the original plaintiff for few months. In any event, the conduct of the original plaintiff would clearly demonstrate that after expiry of lease by efflux of time the original plaintiff did not want the continuance of the landlord/tenant relationship. It was stated that in any event any payment received after determination of lease by efflux of time was not with any intention to create any fresh tenancy and the same would be evident from the conduct of the original plaintiff instituted the suit for eviction. With regard to plethora of documents sought to be introduced for the first time by amendment it was stated in the additional written statement that by letter dated 11th November, 2011 the Advocate on record of the plaintiff asked for inspection. However, no such inspection was offered of the original document disclosed in the amended written statement.
It appears that the legal heirs of Dr. Deb and not the applicants deposited “rent” to the Rent Controller for the month of May to October 2009 and March, 2013 in the capacity as legal heirs of Dr. Deb and not on behalf of the applicant company. Save and except these few challans, there is nothing on record to show that rents or occupation charges have been paid by the legal heirs of Dr. Deb either to Credit Union or to the plaintiff after the death of Dr. Deb in October, 2007. The deposits are not preceded by any valid tender is an inference which could be safely drawn having regard to the documents disclosed in this proceeding absence of any explanation for such deposit in the Rent Control which is again not continuous and regular. In any event such deposits are invalid as the legal heirs have not substituted them in E.O.S. No. 15 of 1987 and could not have deposited such amount to the credit of the suit without substitution. The observations made in the order dated April 7, 2009 that the present applicant could not disclose any document to show that any consent was given by the original owner or the subsequent owner of the property showing that they have consented to the sub-lessee or continuation of occupation by the present applicant in the premises still hold good as no document has been disclosed and/or come forward in this proceeding. There is also nothing on record to show that the rent in fact was paid by the company applicant and not Dr. Deb after October, 2001 or any consent in writing was given by the original owner to Dr. Deb or by the present owners to the present applicant agreeing to or asserting to such continuation. Dr. Deb continued to hold himself as the proprietor of St. Mary’s Nursing Home till his death is evident from the various pleadings filed by him in this court as well as City Civil Court. Dr. Deb had never asserted that the present company is in fact the real tenant and not Dr. Deb or that all payments were made by the company and not by him in the individual capacity. Although the applicant appears to have contended in the G.A. no.2342 of 2007 as well as in the instant application that they are the ostensible tenant by contending that all the expenses were paid by the applicant in terms of the orders of this Court including rent but not a single scrap of paper is disclosed in this proceeding to justify such statement.
The attempt of the applicant to establish privity of estate between the lessor and the applicant must also fail as the lessor has never accepted rent from the applicant or otherwise recognized the applicant as their tenant.
In view of the abatement of the suit the claim of Dr. Deb that Dr. Deb was monthly tenant under the original plaintiff perishes. Significantly the legal heirs of Dr. Deb did not file any application to revive the said suit. In any event the claim of tenancy by the legal heirs cannot extend beyond a period of 5 years from the death of Dr. Deb in terms of Section 2(h) of the West Bengal Premises Tenancy Act, 1997. The applicant now seems to rely upon the averments made in the amended written statement in which the defendant disclosed plethora of documents to establish their defence of holding over. However, there are contemporaneous documents to show that the present plaintiffs have denied the existence and validity of such letters and have called for production and inspection of all the original documents for inspection. The defendant did not provide inspection of any of such letters and appears to have conceded that there is no holding over.
The relevance of such letters would be discussed later.
It is, first, needs to be assessed if the applicant could establish any independent right, title and interest in the property or its claim is wholly dependent upon Dr. Deb.
It is significant to mention that in the application filed by the Credit Union in E.O.S. No.15 of 1987 being G.A. 2754 of 1998 the Credit Union in paragraph 10 has stated:
“10. After the expiry of lease made between the Defendant no.1 and the Defendant no.3 herein in respect of Premises No. 2/1, Ho Chi Minn Sarani, the defendant no.3 duly paid the monthly rent to the defendant no.1 herein and the same was duly accepted by the defendant no.1 herein and as a result of which the defendant no.3 herein became the tenant under the West Bengal Premises Tenancy Act, 1956.”
The said assertion was denied by Dr. Deb in paragraph 10 of the affidavit in reply by stating:
“10. With reference to paragraph 10 of the said petition, save and except what are matters of record I deny each and every allegation made contrary thereto. I specifically deny that upon expiry of the lease between defendant no.1 and the petitioner herein the petitioner has become a tenant under the West Bengal Premises Tenancy Act.”
It is clear from the document available on record that Credit Union recognised Dr. Deb alone as its tenant and Dr. Deb in the suit described himself as a monthly tenant under the defendant no.1. Mr. Jishnu Saha the learned Senior Counsel realising the difficulties likely to cause to the applicants in establishing an independent right as made out an alternative case of ostensible tenancy. Mr. Saha has extensively referred to the original written statement as well as amended written statement filed by the defendant Credit Union in the suit and submits that in the event the defendant becomes a tenant holding over it protects the under-lessee and the applicant squarely fits into the description of a under-lessee . This argument proceeds on the premise that the lessor duly assented to Dr. Deb as a sub lessee and the original plaintiffs and the present plaintiffs had continued to treat Dr. Deb as validly inducted sub-lessee into the premises. The applicant proceeds on an assumption that the applicant is an alter ego of Dr. Deb. Even if the assumptions held to be in favour of Dr. Deb, it does not help the applicant. The applicant was never recognised as a sublessee of the property. Irrespective of the change and status of the nursing home Dr. Deb in his individual capacity continued to remain in the property after expiry of lease of Credit Union and whenever any occasion arises he has asserted his individual right and not that of the applicant. There is a clear estopple operating against Dr. Deb and carefully upon the appellant. In all the pleadings filed by Dr. Deb since 1981 till his death there is not even any whisper that the applicant was inducted as a sub lessee of credit union and after expiry of the lease the original plaintiff or the present plaintiffs have recognised the applicant as sub lessee and accented to its continuation.
Mr. Saha has submitted that the subletting of premises, even without the consent of the landlord, is not per se illegal or unlawful and creates a valid estate as between the lessee and the sub-lessee. The same only affords the lessor a ground for seeking eviction of the lessee. In this context reliance was placed on the following decisions:-
(i) Debabrata Mukherjee -Vs- Kalyan Kumar Roy reported at 1981 (1) CLJ 339 (DB)[paras 16, 17, 21, 22, 23];
(ii) Panchu Gopal Saha -Vs- Smt. Usha Rani Modak reported at 1987 (II) CHN 18 (DB) [para 13] Mr. Saha submits that upon holding over as a tenant upon the expiration of the period of lease, the character of the lessee, Credit Union changed from that of a contractual tenant to a statutory tenant by virtue whereof, it became entitled to the protection of the West Bengal Premises Tenancy Act. In view of Credit Union holding over as a tenant of the suit premises, as a validly inducted sublessee of the same, after the expiration of the lease, the petitioner also came to assume the character of a statutory tenant and, as such, became entitled to the protection afforded to such a tenant.
In this context Mr. Saha has referred to the following decisions:-
i) Biswabani Private Limited -Vs- Santosh Kumar Dutta & others reported at (1980) 1 SCC 185 [paras 6, 7, 10, 11, 13]
ii) Indo Europa Trading Co. Private Limited -Vs- Anil Poddar and others reported at 2007 (2) CHN 303 [para 20] Mr. Saha tried to draw sustenance from paragraph 26 of the judgment of the Hon’ble Supreme Court in the case of Mahabir Prasad Verma -Vs- Surinder Kaur reported in AIR 1982 SC 1043 [para 26] where the Hon’ble Supreme Court has held that:-
“26. As a tenant, in spite of the determination of his tenancy continues the right to remain in possession as a statutory tenant and enjoys the protection against eviction by virtue of the provisions contained in the statute, a sub-tenant who is lawfully inducted, is also recognised by the statute to be a “tenant’ within the meaning of the Act and he must necessarily enjoy the protection against eviction afforded to a tenant by the Act. A lawful sub-letting on the basis of the provisions of the Act does not become unlawful merely because the contractual tenancy of the tenant comes to an end. A tenant incurs the liability to be evicted, if the tenant after the commencement of the Act sub-lets without the written consent of the landlord; and the tenant who has lawfully sub-let with the written consent of the landlord must necessarily enjoy immunity from the process of eviction on that ground. Subletting lawfully done with the written consent of the landlord does not become unlawful merely on the ground that the contractual tenancy has come to an end. Sub-letting to constitute a valid ground for eviction must be without the consent in writing of the landlord at the time when the tenant sub-lets any portion to the sub-tenant”. (emphasis supplied) Mr. Saha has referred to Section 116 of the Transfer of Property Act and submits that the key phrase in the said Section is “renewed from year to year or from month to month according to the purpose for which the property leased as specified in Section 116. It is submitted that in the instant case the rent payable under the lease of 1960 clearly brings such tenancy from year to year month to month within the purview of the West Bengal Premises Tenancy Act which was thus required to be determined by service of notice under the provisions of such Act which was never done. Mr. Saha submits that having regard to the nature of controversy a trial is indispensible and imminent in view of the provisions of Order 21 Rules 98 to 104 of the Code of Civil Procedure, which clearly provide that the orders passed in applications under the said provisions have the effect of a decree of Court, and that in the course of deciding such applications the Court must decide, inter-alia, all questions relating to the objector’s right, title and interest in the property.
The learned Senior Counsel in this context has referred to the following Division Bench decisions of our court:-
(i) French Agency -Vs- Smt. Jiwani Kumari Parakh& another reported at 1999 (2) CLJ 513;
(ii) Subhendu Gupta & another -Vs- Calcutta Vyapar Pratisthan Limited &Ors. reported at 1995(1) Cal LT. (HC) 427.
Mr. Saha submits that in view surrender of tenancy by the tenant in favour of the plaintiff a privity is automatically established by reasons of Section 115 of the Transfer of Property Act 1882 between the plaintiff as lessor and the applicant as sublessee. It is submitted that Section 115 provides that the surrender, express or implied, of a lease of immoveable property does not prejudice an under-lease of the property or any part thereof previously granted by the lessee and that unless the surrender is made for the purpose of obtaining a new lease, the rent payable by, and the contracts binding on the under-lessee shall be respectively payable to and enforceable by the lessor. In the instant case, the clear assertion of Credit Union was that it had after the expiry of the period of lease of 1960 become a contractual tenant holding over, amounting to a renewal of the said lease from year to year or from month to month. Despite such assertion and the fact that the claim of Credit Union never came to be adjudicated in the course of almost 34 years since the filing of the suit, the sudden clandestine and clearly fraudulent compromise of the suit by Credit Union is clear surrender of the lease by the lessee, made with the object of prejudicing the rights of the petitioner as the under-lessee. Notwithstanding such surrender of the lease by Credit Union by clandestinely compromising the suit with a clear fraudulent object and intent, the petitioner’s right continued to be protected in view of the provisions of Section 115 of the Act, 1882, as by virtue thereof a direct privity has been established by and between the petitioner and the plaintiffs in respect of the suit premises. In this context reference is made to the decision of the Hon’ble Supreme Court in Tirath Ram Gupta vs. Gurubachan Singh & Anr. reported in AIR 1987 SC 770 (para 10).
The purported compromise decree has been passed in terms of a terms of settlement entered into by and between the plaintiffs and the defendant. It is significant to note that the said consent terms clearly recognise that “after being inducted into the suit premises as the lessee thereof, the defendant has from time to time inducted different persons into the suit premises in respect of diverse portions of the suit premises as sub-tenants and the said premises at present is in possession of the defendant and its sub-tenants.” The full particulars of such sub-tenants which have been provided in Schedule “A” to the consent terms record the name of Dr. A. K. Deb as a sub-tenant. This, in itself is evidence of the fact that the sub-lease in favour of Dr. A. K. Deb was validly granted.
That the compromise decree is manifestly fraudulent is evident from the fact that despite the express assertion by Credit Union that it was a tenant holding over the suit premises upon expiration of the lease, in the consent terms executed about 34 years after filing of the suit without any adjudication of such question, Credit Union has meekly agreed that it had in the suit taken the usual defence of creation and/or existence of monthly tenancy and that it in fact became liable to vacate the suit premises on the expiry of the term of the lease, for which the plaintiffs became entitled to not only to claim eviction of the defendant but also to damages for its wrongful occupation of the suit premises. This, notwithstanding the fact that Credit Union had asserted that it was a tenant holding over and that its continuance in possession of the suit premises had been duly assented to by the lessor/s upon it having tendered rent in respect of the suit premises by cheque and the lessor/s having accepted such rent by encashing such cheques for at least five months after the expiration of the term of the lease. Such fraud is also clearly apparent from the fact that despite its assertion that it was not in wrongful possession and occupation of the suit premises, even in the absence of any finding by any Court that its possession and occupation of the same was wrongful, in the consent terms, Credit Union agreed to suffer a decree for mesne profit for the sum of Rs.154,92,67,000/- with interest @18% per annum, and agreed to deliver vacant and peaceful possession of the suit premises in consideration for the plaintiffs’ waiving their claim on account of such mesne profit. In this context, it is significant to note that even though under the said consent terms Credit Union agreed to suffer a decree for eviction from the entirety of the suit premises, as a consideration for the plaintiffs not enforcing their decretal claim for mesne profits against it, Credit Union agreed to merely give up vacant and peaceful possession of the portions described in Schedule “B” to the consent terms.
Mr. Saha submits that it is now well settled law that a sub-lessee will not be bound by a decree against the lessee if he succeeds in showing that the judgement was vitiated by fraud or that the lessee collusively suffered the decree. The learned Senior Counsel in this regard has relied upon the decisions of this Court in Sailendra Nath Bhattacharya vs. Bijan Lal Chakravarty & Ors. reported in AIR 1945 Cal 283 (para. 14) and Jagat Enterprises vs. Anup Kumar Daw reported in AIR 1977 Cal 209 (paras. 8 and 9).
It is submitted that the Second limb of Section 115 of the Act of 1882 also provides that the forfeiture of a lease annuls all under-leases, except where such forfeiture has been procured by the lessor in fraud of the under-leases. Such fraud in the instant case is clear. There is a collusion between the plaintiffs/lessors and the defendant/lessee. As such the same cannot have the effect of affecting the right of the petitioners as an under-lessee.
Mr. Saha submits that the applicant in any event is an ostensible tenant as relied upon the Division Bench judgments of our court in the case of A.C. Bhattacharjee -Vs- Arun Krushna Roy & Others, reported in (1960-1961) 65 CWN 1175 and Jadu Nath Bose Vs.Srimati Premmoni Dasi (Paragraph 5) reported in (1909-10) 14 CWN 774, Dr. A. K. Roy Vs. J. C. Roy Choudhury & Anr. (Paragraph 10, 11) reported in AIR 1982 Cal 8.
Mr. Saha has also referred to Sections 226, 230 and 231 of the Indian Contract Act, 1872 and submits that the principles of agency may be applied in the instant case in support of the claim made by the applicant in the present proceeding. According to Mr. Saha it was known to all that the applicant is fulfilling all the obligations required to be discharged and such facts were known both to the plaintiffs and the defendant. Mr. Saha has referred to the Hon’ble Supreme Court decision in Niranjan Kumar & Others -Vs- Dhyan Singh and another reported in (1976) 4 SCC 89 and Bai Hira Devi & Ors. Vs- Official Assignee of Bombay reported in AIR 1958 SC 448 (Paragraph 3, 4, 5,) and submits that the description of a person in the lease as lessee or tenant does not necessarily negate agency and Section 99 of the Indian Evidence Act enables a person not a party to the document or his representative in the interest to give evidence of any fact tending to show a contemporaneous agreement varying the terms of the document. Person other than to those who are parties to a document are not preclude for giving extrinsic evidence to contradict, vary, add to or subtract from the terms of the document.
Mr. Saha submits that in Bai Hira Devi (supra) has clearly recognised a right of a third party to not only give evidence to show that there is a variation of the terms of the contract but he can also give evidence to show that there has been an addition or subtraction from the original terms. Mr. Saha also referred to the decision of Madras High Court in C. Venkatasubbiah Vs. T. Govindarajulu, reported in (1908) 18 MLJ 1 and submits that the court has recognized that oral evidence can be lead and the same shall not be barred under Sections 91 and 92 of the Evidence Act, 1872 even if there is a written contract, provided the same does not change the terms and conditions of the contract. The said decision was rendered on the basis that by leading oral evidence the names of the parties to the contract were changed, but the terms of the said contract remained the same.
Mr. Saha has referred to a decision of the Bombay High Court in Laxmibai Vs. Keshav Aungji Pokharkar reported in 33 Ind Cas 396 (Bom), in a case of benami transaction and agency, oral evidence was held to be permitted to be lead and that shall not be barred under Section 91 and 92 of the Evidence Act, 1872.
In the instant case, the property was under occupation from the very beginning by St. Mary’s Nursing Home. It was as such the Nursing Home which was from the very inception is in the relationship as a tenant of the property. Even after change in the constitution of the Nursing Home, it is the Nursing Home alone which continued to occupy, use and enjoy the property to the exclusion of others. Dr. Achinta Krishna Deb never occupied the property himself in view of the fact that it was always the Nursing Home which used, occupied and enjoyed the property, he clearly acted as the agent of the Nursing Home.
Mr. Saha submits that although the Nursing Home carried on business openly from the premises in question and although it clearly advertised its presence at the premises, no objection was raised by the plaintiffs or their predecessors to the Nursing Homes use occupation or enjoyment of the property, whether before or after the expiry of the period of lease dated 10th August, 1960. It can as such be said that even the plaintiffs and their predecessors at all material times accepted that it was the Nursing Home which was entitled to use, enjoy and occupy the property to the exclusion of all others.
Mr. Surajit Nath Mitra, learned Senior Counsel appearing on behalf of the decree holder submits that the applicant has failed to establish any independent right in respect of the premises in question. It is submitted that a bare perusal of the application and the documents relied upon by the applicant would show that the applicant had failed either to aver or to prove any such independent right in respect of its claim of possession of a portion of the demised premises. It is submitted that from the application it would appear that one Dr. Achintya Krishna Deb had agreed to obtain and has obtained sub-tenancy of a portion of the said premises on certain terms and conditions and on that basis had entered into an agreement with the defendant on 20th November, 1972. The predecessor- in-interest of the plaintiffs was not a party to the said agreement and as such any term or condition contained in the said agreement was not and is not binding either on the predecessor of the plaintiffs or on the plaintiffs. Moreover, the registered deed of lease dated 10th August, 1960 prohibits sub-letting.
The learned Senior Counsel has referred to the agreement dated 20th November, 1972 and submitted that the alleged agreement pleaded in the petition as to the consent of the then landlord for alleged continuation of tenancy by Dr. Achintya Krishna Deb after the expiry of the deed of lease did not find any place in the alleged agreement dated 20th November, 1972. There is not even a whisper in the said agreement that the defendant had taken consent of the landlord for creation of such sub-lease in favour of Dr. Deb. Such alleged consent as introduced in this application did not find place in the suit filed by Dr. Deb against the predecessor-in-interest of the plaintiffs in the City Civil Court at Calcutta being Title Suit No. 1211 of 1981. In any event, there was no previous consent in writing from the predecessor-in-interest of the plaintiffs authorizing the defendant to sub-let or sub-lease any portion of the said premises to Dr. Achintya Krishna Deb and in absence of such previous consent in writing was mandatory under the provisions of the West Bengal Premises Tenancy Act, 1956 in Calcutta on account of sub-tenancy must fail and has to fail. Moreover, no notice of creation of such sub-tenancy was also given by Dr. Deb or by the applicant to the predecessor-in-interest of the plaintiffs as was required by the West Bengal Premises Tenancy Act, 1956.
It is argued that although a tall claim was made by the applicant that Dr. Achintya Krishna Deb has established St. Mary’s Nursing Home at the said premises and has started the same which was subsequently converted into a partnership firm and ultimately taken over by the applicant company. There is nothing on record to show that either the proprietorship or the partnership firm or the applicant made any payment towards the rent or other charges. Even if it is assumed for the sake of argument that such payment is made either by the proprietorship concern or by the partnership firm or by the applicant, such payment was made on behalf of Dr. Achintya Krishna Deb and on the basis of such alleged payment no right was or could be created, either in favour of the partnership firm or in favour of the applicant. The rent control challans relied upon by the applicant at pages 90 to 98 would reveal that rents were deposited in the office of the Rent Controller on behalf of the legal representatives and successors of Dr. Achintya Krishna Deb, the son of the deceased and not by the present applicant.
The suit filed by Dr. Deb before the City Civil Court, Calcutta being Title Suit No. 1211 of 1981 was subsequently transferred to this Hon’ble Court and renumbered as Extra Ordinary Suit No.15 of 1987. During the pendency of the said suit, Dr. Achintya Krishna Deb died in or about October, 2007. Since thereafter, the said suit and the claims made therein have abated. It is, thus, argued that the application is barred by the principles of res judicata and/or principles analogous thereto.
On the contrary, the defendant had filed a suit against Dr. Achintya Krishna Deb in the year 1982. The said suit was dismissed on contest by a judgment and order dated 23rd February, 1992. From a perusal of the judgment, it would appear that in the said suit Dr. Achintya Krishna Deb did not assert that there was a fresh tenancy in his favour by the plaintiff or their predecessor in title or any such tenancy was created in favour of the applicant. In respect of the several letters disclosed in this proceeding, it is submitted that the applicant did not give inspection of the original documents although initially it had agreed to offer. The advocate-on-record of the applicant subsequently contended that the original documents are not in the custody of the applicant since the correspondence relied upon were between the plaintiffs or their predecessor-in- interest and the defendant. According to the learned Senior Counsel these documents are fabricated and/or forged and created for the purpose of this litigation. In any event, it is submitted that it is a settled law that a sub-tenant is bound by the decree passed against the tenant and he has no independent right to resist the execution of a decree passed against the tenant.
Mr. Mitra has referred to the series of letters disclosed in the amended written statement filed by the defendant in April, 2011 and submits that although inspection was sought for of the original letters but no inspection was given by the defendant. Several letters are all fabricated and the plaintiffs have never accepted the existence and factum of the said letters. Mr. Mitra submits that even if it is assumed that the said letters were, in fact, issued by Tarun Kumar Ghosh, the contents of the said letter would not show that the plaintiffs have accepted any rent from Mr. Deb or has accepted the status of Mr. Deb as sub-tenant of defendant No.1.
This argument of Mr. Saha is not acceptable in view of the facts narrated in the earlier part of this judgment.
To summarize, applicant has failed to prove any independent agreement between R.C. Ghosh and Dr. Deb and produce any cogent evidence to show that Late R.C. Ghosh or his successors have ratified such sub-tenancy of Dr. Deb, notwithstanding the specific bar of sub-letting contained in the lease deed. Moreover, no notice either under Section 16 of the West Bengal Premises Tenancy Act, 1956 or under Section 26 of the West Bengal Premises Tenancy Act, 1997 read with rule 12 of the West Bengal Premises Tenancy Act, 1999 was ever given to Durgabati or the present plaintiffs. In any event the sub-lessee is bound by the decree passed against the lessee. (See. Rup Chand Gupta vs. Raghu Banshi reported at AIR 1964 SC 1889 Para 12, Suresh Chand Jain vs. III Rd. Addl. District Judge, Mathura & Others reported at (2001) 10 SCC 508, Para 6 and H. Seshadri vs. K.R. Natarajan & Anr. reported at (2003) 10 SCC 449 Para 13).
A sub-tenant is bound by the decree for eviction of the tenant if the decree is based upon a ground which determines the sub-tenancy and he may then be removed in execution of the decree. However if a sub-tenant claims a statutory right to occupy a property independently of the tenant under the Rent Control laws, he is not a representative of the judgment-debtor tenant and is not bound by the decree of ejectment and he may not therefore be removed in execution of the decree against the tenant. He is therefore entitled to resist execution of the warrant and if he is dispossessed, he may apply under Order 21, Rule 100 for restoration of possession.
The mere fact that the Judgement-debtor has filed the written statement but did not ultimately contest the suit does not mean that the decree is obtained by collusion. A similar situation occurred in Rupchand Gupta (supra). In that case, the landlord brought a suit against his lessee for ejectment after serving a valid notice to quit but without impleading the sub-lessee as defendant. The lessee did not contest the suit in pursuance of his agreement with the plaintiff landlord and an ex parte decree was passed. The sub-lessee thereupon brought a suit against the landlord and the lessee for a declaration that he was not bound by the decree which had been obtained by collusion between the defendants in order to injure the plaintiff and to evict him from the premises without a decree being passed against him. The suit was dismissed on the ground that the plaintiff failed to establish collusion.
On such facts it was held that the suit was rightly dismissed. The mere fact that the sub-lessee was not impleaded or that the lessee did not actually contest the suit did not render the decree passed in the suit as collusive especially when it is clear that the defendant No.1 had even a plausible defence to the claim for ejectment. Collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose.
Where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub-lessee, but this is a position well understood by him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act. The mere fact that the defendant agrees with the plaintiff that if a suit is brought he would not defend it, would not necessarily prove collusion. It is only if this agreement is done improperly in the sense that a dishonest purpose is intended to be achieved that they can be said to have colluded.
Rupchand Gupta (supra) has been followed in a fairly recent decision of our High Court in Birla Corporation Limited Vs. Basant Properties Limited reported at 2011 (3) CHN (Cal) 193.
Although under the general law, the tenant enjoys the right to sublet without the landlord’s consent but such sub-tenant is bound by the decree for eviction passed against the tenant and cannot resist such eviction. However, both under the West Bengal Premises Tenancy Act, 1956 and under the present Act, the tenant cannot sublet without the written prior permission of the landlord. Section 26 of the 1997 Act is the same as Sections 14 and 16 of the old Act of 1956. Sections 14 and 16 of the 1956 Act reads:-
“S.14.Restriction of subletting.- (1) After the commencement of this Act, no tenant shall, without the previous consent in writing of the landlord, –
(a) sublet the whole or any part of the premises held by him as a tenant; or
(b) transfer or assign his rights in the tenancy or in any part thereof.
(2) No landlord shall claim, demand or receive any premium or other consideration whatsoever for giving his consent to the subletting of the whole or any part of the premises held by a tenant.
S.16.Creation and termination of sub-tenancies to be notified. – (1) Where after the commencement of this Act, any premises are sublet either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant and every sub-tenant to whom the premises are sublet shall give notice to the landlord in the prescribed manner of the creation of the sub-tenancy within one month from the date of such subletting and shall in the prescribed manner notify the termination of such sub-tenancy within one month of such termination.
(2) Where before the commencement of this Act, the tenant with or without the consent of the landlord, has sublet any premises either in whole or in part, the tenant and every sub-tenant to whom the premises have been sublet shall give notice to the landlord of such subletting in the prescribed manner [within six months] of the commencement of this Act and shall in the prescribed manner notify the termination of such sub-tenancy within one month of such termination.
(3) Where in any case mentioned in sub-section (2) there is no consent in writing of the landlord and the landlord denies that he gave oral consent, the Controller shall, on an application made to him in this behalf either by the landlord or the sub-tenant within two months of the date of the receipt of the notice of subletting by the landlord or the issue of the notice by the sub-tenant, as the case may be, by order declare that the tenant’s interest in so much of the premises as has been sublet shall cease, and that the sub-tenant shall become a tenant directly under the landlord from the date of the order. The Controller shall also fix the rents payable by the tenant and such sub-tenant to the landlord from the date of the order. Rents so fixed shall be deemed to be fair rent for purposes of this Act.”
There is practically no difference between the new law and the old law as regards statutory requirement of giving notice for creation and termination of sub-tenancies except that the notice is to be given within two years of the commencement of the Act of 1997. Section 14 of the 1956 Act and Section 5 sub-section 5 of the present Act, the requirement of a written prior permission of the landlord is essential. It has clearly provided that no tenant shall sublet premises without the consent of the landlord in writing. Over and above, this prohibition of Section 16 of the 1956 Act made specific provision for giving notice both by the tenant as well as by the sub-tenant as well as the creation of sub- tenancy after the introduction of the 1956 Act. In respect of sub-tenancy created prior to 1956 sub-section 2 of Section 16 of 1956 Act also provided for giving notice both by the tenant as well as by the sub-tenant. Rule 4 of the West Bengal Premises Tenancy Act, 1956 requires the notice under Section 16 to be given by registered post with acknowledgement due and such notice is to contain the particulars specified in the said rule giving of such a notice is mandatory.
The factum of actual possession in the absence of any legal basis could only mean an occupation as a trespasser or a sub-lessee. A sub tenant, whose sub-tenancy has been created without the consent in writing of the superior landlord, would have no rights in law so far as that landlord is concerned. Section 115 of the Transfer of Property Act proceeds on the basis that there is a valid lease. If the basis of the lease goes, section 115 of the Transfer of Property Act would not be available to the sub-tenant. (Bhagbati Builder Vs. Karim Bux, AIR 1971 Cal 319 (321) In Biswanath Poddar vs. Archana Poddar reported at 2001 (8) SCC 187, the Hon’ble Supreme Court held that unless requirement of 1956 Act is complied with the provision of Section 16 and the mandatory requirement of a notice under Section 16(1) was issued, the sub-tenant has no right to challenge the decree of eviction passed by the Court even if such sub-tenant has not been impleaded.
Section 26(2) deals with pre-Act sub-tenancy whether such sub-tenancies were with or without the landlord’s consent. Both the tenant and the sub-tenant were to give notice of the creation of pre-act sub-tenancies. Such notice has to be issued within two years of the date of commencement of the 1997 Act. The manner of service of notice has been prescribed in Rule 12 of the West Bengal Premises Tenancy Rules, 1999. There is no basic difference between Rule 12 of the 1999 Rules and Rule 4 of the 1956 Rules. The Rules are identical. Rule 12 has been divided into two laying down the duties to be complied with when the cases come within the fold of Section 26(1) and the cases coming within the ambit of Section 26(2) of the Act of 1997. It has to be sent by registered post with acknowledgement due. The requirement of the first part of sub-section (2) of Section 26 of the new Act is that there must be notice of subletting once again to the landlord within two years of commencement of the new Act. The second part of sub-section 2 requires that tenant and sub-tenant shall notify the termination of sub-tenancy within one month of such termination. The reading of the said two sub-sections shows that it is obligatory for every sub-tenant to give notice to the landlord of the creation of sub-tenancy. Unless this is done a sub-tenant has no locus standi to come forward and challenge the legality of eviction decree passed against the tenant unless he alleges fraud. It has to be a fraud going to the extent of suppression of fact of notice given by him and keeping him in dark intentionally about the ejectment suit. Then and then only sub-tenant can oppose the execution of the decree.
In Biswanath Poddar (supra), it was contended that the bilateral agreement between the tenant and the sub-tenant creating sub-tenancy which contained clause that the landlord had given consent to sub-let would bind the landlord and the sub-tenant cannot be evicted and the sub-tenant is a necessary party in a suit for eviction by the landlord against the tenant was negative. The decision of our High Court, in Paspur Travels Pvt. Ltd. Vs. Biswanath Poddar & Anr. reported at 2000 (2) CLJ 204 was reversed by the Hon’ble Supreme Court. It is stated in Biswanath Poddar (supra) that under provisions of the Act the requirement of previous consent of the landlord as also intimation in writing in the manner prescribed under the Act by the tenant as well as the sub-tenant within the time stipulated thereunder being a mandatory requirement, the creation of sub-tenancy without fulfilling these requirements becomes opposed to S.14 of the Act. If it is a sub-tenancy created contrary to the provisions of the Act then as could be seen from S. 13(2) of the Act, it becomes unnecessary for the landlord to implead the sub-tenant when he seeks to evict the original tenant on the ground of unlawful tenancy.
In the aforesaid case based on evidence the trial Court had come to the conclusion on facts that neither of the twin requirements, namely the previous consent of the landlord and notice in writing by the tenants is fulfilled. Therefore, it came to the conclusion that there was no obligation on the part of the landlord to have impleaded the second respondent as a party to the original eviction petition because the said respondent did not have a legal right to be heard in view of S.13(2) of the Act. A bilateral agreement between the tenant and the sub-tenant to deprive the owner of a statutory right of eviction by a contract inter se between themselves cannot be relied upon and on basis of clause in agreement “and whereas the first party by virtue of the consent of the tenant in respect of the said premises is otherwise empowered to sublet and/or part with possession and/or to let out the said premises or any portion thereof to any person or persons”, it cannot be contended the landlord had given previous consent to the original tenant to sublet or part with possession of the premises to any person (s), and therefore, a separate previous consent of the original landlord (the appellant) is not essential. The landlord was not a party to the above agreement. Any statement made in the said agreement would not be binding on the landlord and there being no other evidence to show that in fact there was such written previous consent given by the landlord to create a sub-tenancy. This being a mandatory requirement of law, it was held that the sub-tenant has failed to establish this mandatory requirement of the Act, i.e., S.14 of the Act.
The language of S.14 clearly bars creation of any sub-tenancy without the previous consent in writing of the landlord. This requirement of notice is further qualified by the prescribed method of issuance of notice which is found in R.4 of the West Bengal Premises Tenancy Rules. The Section also prescribes the time limit within which such notice has to be given. Under R.4 the notice has to be sent by registered post. It also statutory prescribes the contents of the notice and the place to which it should be addressed. All these conditions coupled with the use of the word “shall” both in Section and the Rules indicate that the Legislature intended this requirement of notice under S.16 of the Act to be mandatory. Therefore, the requirement of S.16 is mandatory and not directory.
At the time of filing of suit by Dr. Deb, the provisions of West Bengal Premises Tenancy Act, 1956 was applicable. Under Section 16 of the West Bengal Premises Tenancy, 1956 clearly recognizes that although under the general law tenant enjoys the right to sublet without the landlord’s consent, the sub-tenants position is nonetheless precarious; he is not a necessary party in ejectment suit and is bound by decree against eviction passed by the tenant. Under Section 14 of the 1956 Act, the tenant’s right to create sub-tenancy was curtailed. He could not do so without the previous written consent of the landlord. Even this was not being considered enough; creation and termination of sub-tenancies were to be notified to the landlord. Dr. Deb had the opportunity to seek declaration as a direct tenant under the Ghosh’s as the same was available to him under Section 16 of the 1956 Act as a suit for ejectment against the defendant No.1 was pending but he did not pursue the said suit and the suit is abated. Under Order 22 Rule 9 of the Code of Civil Procedure, no fresh suit shall lie once a suit is abated.
It has been the consistent view both under the 1956 Act and the subsequent rent legislation in 1997 that in the suit by a landlord against tenant for ejectment, the sub tenants are not necessary parties and, therefore, they cannot object to the delivery of possession on the ground that the decree is not binding as they were not made parties to it. Therefore, the decree for ejectment of the lessee can be executed against the sub-lessees although he was not made a party. The aforesaid discussion is made in order to show the status of the present applicants.
Even it is assumed that Dr. Deb was a sub-tenant with the death of Dr. Deb, the legal heirs of Dr. Deb at best could have claimed the tenancy right for a period of 5 years from the date of death of Dr. Deb provided they fulfill the requirement of Section 2(h) of the West Bengal Premises Tenancy Act, 1997. It is significant to mention that the legal heirs of Dr. Deb had asserted their right as sub-tenant in the capacity as the legal heirs of Dr. Deb is would be evident from the rent control challans mentioned above which would show that deposits have been made by the widow and son of Dr. Deb as legal heirs of Dr. Deb. The applicants have failed to prove any independent right.
Now turning on to the plethora of letters annexed to the written statement filed by the defendant in the amended written statement, apart from the fact that the authenticity of such letters were questioned by the plaintiffs and inspection of the original letters were demanded neither the defendant nor the present applicant has offered inspection of the said document. Initially the applicant agreed to offer inspection but later such inspection was denied presumably on the ground that these documents were exchanged by and between the plaintiffs and the defendants and the applicant could not be possession of any such documents. None of the said letters even if, assumed to be in existence could make out a case of fresh tenancy. Both prior and after the period covered by the said letters pleadings have been filed by the defendant and Dr. Deb and in none of such pleadings such letters at all were referred to or relied upon. Moreover, having regard to the fact that Dr. Deb died before establishing the right as a monthly tenant under the Ghosh’s and the said suit having not been pursued, it is a fait accompli for the present applicant to ride over such claim. The only person could have thrown any light was Durgabati or Dr. Deb. Both the persons are dead. The assertion by Dr. Deb today in his plaint could not be proved by anyone else in the suit.
Section 116 of the Transfer of Property Act contemplates a bilateral contract between the erstwhile landlord and the erstwhile tenant. On the one hand there should be an offer of taking a new lease evidenced by the lessee remaining in possession of the demised premises after his term was over and on the other hand there must be a definite consent of the landlord to the continuance of possession by the tenant expressed by the acceptance of rent or otherwise. The expression “holding over” is used in the sense of retaining possession. In a case of tenancy holding over, there is no relationship of landlord and tenant. The twin requirements are absent in the present case. The very fact that Durgabati instituted a suit for eviction shows that she never intended to continue the lease. In fact Dr. Deb complained that Durgabati had acted in breach of her premises in seeking to induct a third party to develop the property. There are clear indications to show the dissent of Durgabati and her successors to continue with the lease. It is unbelievable and unacceptable that the Credit Union in possession of such letters would not take benefit of these letters for all these years. Credit Union made a last attempt after almost thirty years to rely on such alleged correspondence. The said letters cannot be proved by the present applicant. They were not parties. He who alleges must prove. The onus is not discharged. The authenticity of such letters in any event is in serious dispute. The present applicant in any event was not an under lessee. Durgabati had never intended to create any fresh tenancy either in favour of Dr. Deb or Credit Union and their appears to be a conflict between Dr. Deb and Credit Union as to who become a monthly tenant under Durgabati after the expiry of the lease. It is evident from the two suits filed by Dr. Deb and Credit Union. The payments for few months of rent as alleged appears to have been paid without the knowledge and consent of Durgabati and such payments cannot elevate the status of Credit Union as a tenant holding over. The earlier court proceedings between the parties would show that Dr. Deb was asked to pay occupation and Municipal taxes and charges being the person in actual occupation and not as a tenant holding over. The court had never accepted that Dr. Deb was lessee under Ghosh. However there is a prima facie finding that Dr. Deb was a monthly tenant under Credit Union. There is no finding that Dr. Deb was inducted as a sub-tenant with the consent of Ghoshes.
The question of holding over is one of animus and the real intention of the parties. There cannot be a valid contract without consensus ad idem of the terms of the contract between the parties. (Munavar Basha v. Nrayanam reported in AIR 1961 Mad 20).
It is equally well settled that mere payment of rent without anything else does not automatically leads to an inference of holding over. (See. Shila Roy Choudhury And Ors. vs Nimai Charan Rakshit reported at 2006 (4) CHN 7 and C. Albert Morris vs. K. Chandrasekaran and Others reported at 2006(1) SCC 228). The assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. Merely because the lessors accept rents for few months after the expiry of lease without immediately initiating any action for recovery of possession would not be a factor against the lessors and is not indicative of the fact that they had accepted the erstwhile lessees as contractual tenants. In Smt. Minati Sen alias Smt. D.P. Sen Vs. Kalipada Ganguly & Ors. reported in AIR 1997 Cal 386 it has been held that mere knowledge of the landlord about occupation of the tenanted premises by a sub-tenant and acceptance of rent for the tenanted premises tendered by the tenant in the name of the sub-tenant will not create sub-tenancy unless induction of such tenant is made with the written consent of the landlord as required under the West Bengal Tenancy Act 1956. The payment of rent by Dr. Deb along with rates and taxes were under order of Court as Dr. Deb was found to be in occupation. In fact the Credit Union paid rent for five months after the expiry of lease and thereafter no amount was recovered by the landlord. The landlord never treated such payment as rent inasmuch it was contended that such payment was made without the knowledge of Durgabati. As soon as Durgabati became aware of such fraudulent conduct immediately she refused to accept any sum from the defendant. There is no continuous uninterrupted act on the part of Durgabati soon after determination of the lease assenting to the tenancy of Credit Union after expiry of the lease and the defendant realising the weakness of its defence did not pursue its claim of holding over. The defendant was also not in a position to prove the alleged letters disclosed almost thirty years after the original written statement was filed. The original letters were never offered for inspection although asked for by the plaintiffs.
The doctrine of holding over does not apply to a person who has never been in occupation as a tenant. Dr. Deb was never recognized as a tenant by Durgabati or her successors. The applicant never had asserted such right until 27th July, 2007 but claimed through Dr. Deb.
The cumulative effect of all these discussions leads to a conclusion that the applicants have no right to resist the execution of the decree. The application fails. G.A.No.1074 of 2015 is dismissed.
The amount deposited by the applicants during the pendency of this proceeding shall be adjusted towards mesne profits and if any further sum is found to be due and payable, the decree-holder may proceed for execution of such sum on account of mesne profits for any subsequent period if within two weeks from date the applicant does not make over peaceful possession of the area under their occupation to the court appointed receiver.
The Receiver shall not for a period of two weeks take actual physical possession of the premises in question.
In view of dismissal of G.A. No.1074 of 2015, the other two applications being G.A. No.3723 of 2015 and G.A. No.3725 of 2015 are dismissed.
However, there shall be no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties on usual undertaking.
(Soumen Sen, J.)
Counsel for the parties :
For the Applicants : Mr. Jishnu Saha, Sr. Adv.,
Mr. Arindam Banerjee, Adv.
Mr. Ashis Kumar Mukherjee, Adv.,
Mr. Sourojit Dasgupta, Adv.,
Mr. Zeeshan Haque, Adv.,
Mr. Srinanda Bose, Adv.,
Ms. Surabhi Banerjee, Adv.
For the Plaintiffs/Decree-holders : Mr. Surajit Nath Mitra, Sr. Adv.,
Mr. Aniruddha Roy, Adv.,
Mr. Sankarsan Sarkar, Adv.,
Ms. Arundhati Mukherjee, Adv.