Gauhati High Court High Court

Biswanath Saha vs Gouri Karmakar And Ors. on 14 November, 2003

Gauhati High Court
Biswanath Saha vs Gouri Karmakar And Ors. on 14 November, 2003
Equivalent citations: (2006) 1 GLR 652
Author: T Vaiphei
Bench: T Vaiphei


JUDGMENT

T. Vaiphei, J.

1. This second appeal under Section 100 of the Civil Procedure Code is directed against the appellate judgment and decree dated 6.6.2001 passed by the learned Additional District Judge, South Tripura, Udaipur in Title Appeal No. 14/1998 setting aside the judgment and decree dated 30.5.1998 passed by the learned Civil Judge (Senior Division), Udaipur, South Tripura in Title Suit No. 31/1993 and decreeing the suit, valued at Rs. 15,000.

2. The facts relevant for the purpose of disposal of this appeal may be briefly stated as under :

The case of the plaintiffs is that on 13.05.1986 he leased out two rooms of a building situated at Udaipur town, described in the Schedule to the plaint, to the defendants on a monthly rent for a period of two years commencing from first day of Vaisakha of 1393 B.S. by a registered deed. On the expiry of the term of lease, and the request of the defendant No. 2, the plaintiffs allowed them to continue with the lease of the two rooms along with two more rooms in the first floor of the same building at the enhanced rate of Rs. 1,250 per month on the condition that the rent of each month should be paid within the 7th day of the following month according to Bengali Calendar and that the defendants should vacate the premises on 7 days notice. The plaintiffs alleged that the defendants defaulted in making payment of the rent from the month of Chaitra, 1399 B.S. and that the plaintiffs also required extension of their business for their grown up children for which the suit premises were required for their personal business. Therefore, the plaintiffs requested the defendants to vacate the premises verbally, but the defendants did not vacate the same. Consequently, the plaintiffs served ejectment notice through their counsel by post which was received by the defendant No. 2 in the suit on 16.06.1996 requiring them to vacate the premises on the expiry of 31st day of Asadha, 1400 B.S. but to no effect. Thereupon, the plaintiffs filed the suit for eviction of the defendants from the suit premises and for damage @ Rs. 60 per day from the date of expiry of the notice period, i.e. 1st day of Shrabana, 1400 B.S. till vacation.

The defendants contested the suit by filing a written statement of defence, wherein they admitted the tenancy between them and the plaintiffs till Chaitra 1394 B.S. According to them, after the expiry of first term of lease for two years, the defendant No. 1, namely, Sri Anil Kumar Saha retired from the partnership business and the defendant No. 2, Sri Biswanath Saha alone continued the business at Udaipur and entered into a new oral agreement with the plaintiffs for five rooms at a monthly rent of Rs. 1,250 for a period of 10 years. It is further stated that the defendant No. 2 advanced a sum of Rs. 15,000 to the plaintiffs at the time of first lease which was not adjusted against payment of rent. Again on the request of the plaintiffs, the defendant No. 2 further advanced Rs. 35,000 more at the time of second oral agreement of lease, thereby making a total advance of Rs. 50,000 which was to be adjusted against the rent @ Rs. 450 per month within 10 years. It is also asserted that the plaintiffs have not issued any receipt either for the advance or payment of the monthly rent despite request made by them. The defendant No. 2 admitted that he is still a tenant of the plaintiffs and is ever ready to pay the rent. The defendants also state that in the year 1992 the plaintiffs started a Foreign Liquor Shop near the suit premises for which the defendants raised objection for running the liquor business and out of grudge for the same that the plaintiffs instituted the instant suit for eviction against them. The defendants submit that there is no cause of action and prays for dismissal of the suit.

3. The learned trial Court framed 7(seven) issues, out of which Issue Nos, 1, 3 and 4 were not decided since the parties did not press for decision on those issues. The learned trial Court held that there was no cause of action and accordingly, decided the Issue No. 2 against the plaintiffs. In so far as the Issue Nos. 5, 6 and 7 are concerned, the learned trial Court decided these issues jointly holding that the defendants are not evictable for the reasons that notice served upon the defendants was invalid for want of bonafide requirement and that the plaintiffs failed to prove non-payment of rent by the defendants. Accordingly, the learned trial Court dismissed the suit. Aggrieved by the decision of the learned trial Court, the plaintiffs preferred first appeal before the learned Additional District Judge, South Tripura, Udaipur. The learned first appellate Court allowed the appeal holding, inter alia, that the plaintiffs had cause of action for the suit. In reaching this conclusion, the learned appellate Court is of the view that the plaint as well as the testimony of the P.W. 1 clearly show that the defendants were asked to quit the premises on the expiry of the period of notice on the 31st day of Ashad 1400 B.S. and the default of the defendants to respond to the notice gave rise to the cause of action to bring the suit for ejectment of the defendants from the suit premises. The learned appellate Court also takes note of the testimony of the P.W. 1 and the averments of the plaint that the defendants had defaulted in making payment of rent from the month of Chaitra 1399 B.S. the learned appellate Court also takes into consideration the fact that though the plaintiffs had not prayed for any relief for realisation of arrear rent from the month of Chaitra 1399 B.S., they claimed damages for holding the suit premises even after expiry of the notice period @ Rs. 60 per day. In so far as the finding of the learned trial Court that the defendants are not evictable from the suit premises on the ground that they are defaulter in making payment of rent with effect from Chaitra 1399 B.S. and as such the plaintiffs are not entitled to get a decree and also for damage @ Rs. 60 per day from the defendants, the learned appellate Court also did not agree with such findings and conclusions of the learned trial Court. It is the categorical finding of the learned appellate Court that the defendants admitted their tenancy under them in respect of the suit premises commencing from the first day of Vaisakha 1393 B.S. and there was an oral agreement with the plaintiffs and that the lease was created on monthly rent for more than one year. According to the learned appellate Court, as per the provision of Section 107 of the Transfer of Property Act (hereinafter called ‘the Act’ for short) a lease of immovable property from year to year or for a term exceeding one year or reserving yearly rent can be made only by registered instrument. The learned appellate Court is of the view that since the lease was for more than one year, the same should have been made by a registered instrument in terms of Section 107 of the Act and that having not done so the status of the defendants is that of a mere tenant at Will. According to the learned appellate Court, in a case of a tenant at Will it is not necessary to issue notice under Section 106 of the Act and a demand for possession is sufficient to determine the lease and that in view of the position of law stated above the conclusion of the learned trial Court that determination of the lease between the plaintiffs and the defendants without serving notice is invalid has become redundant. The learned appellate Court further held that even it notice under Section 106 of the Act on the part of the plaintiffs is considered to be necessary, it is not necessary to mention in the notice the purpose for which the lessor required the suit premises, nor is it necessary to mention in the notice the fact of default of the defendants to make payment of the monthly rent as a reason for forfeiture of the agreement of lease since the defendants were found to be tenant at Will.

Insofar as the finding of the learned trial Court that the plaintiffs had failed to prove default of non-payment of rent from the month of Chaitra 1399 B.S., as one of the reason for forfeiture of the agreement of the lease, the learned appellate Court takes the view that in view of the finding made by it that the defendants are tenant at Will, a simple demand on the part of the plaintiffs to deliver possession of the suit premises is enough for the defendants to vacate the possession of the suit premises and that it is not necessary for the plaintiffs to prove non-payment of the monthly rent by the defendants. It was on the basis of such finding that the learned appellate Court reversed the judgment passed by the learned trial Court and held that the defendants are liable to be evicted on the demand of the plaintiffs placed by way of serving notice and received by them on 16.6.1996. The learned appellate Court also proceeded to decide the claim made by the plaintiffs for damages, which was not decided by the learned trial Court. The finding of the learned appellate Court is that the defendant No. 2 had not been making payment of the rent till Chaitra 1399 B.S. since the plaintiffs refused to accept the same despite their offer. According to the learned appellate Court 7(seven) more year have elapsed after the institution of the suit during which the defendants have not been making any payment of rent and the tenancy at Will became terminated with effect from 1st Shrabana 1400 B.S., i.e. on the expiry of period of notice and as such the plaintiffs are right to claim damages for holding possession of the suit premises by the defendants with effect from 10.9.1993. However, the learned appellate Court negated the claim of the plaintiffs for damages @ Rs. 60 per day on the ground that no justification was furnished in support thereof. In the result, the learned appellate Court held that the defendants should pay damages @ Rs. 1,500 per month from the date of filing of the suit, i.e. on 10.9.1993 till delivery of possession on payment of Additional Court Fees. The learned appellate Court also considered the defendants, who would satisfy the decree to be passed. The plaintiffs had impleaded both i.e Anil Kumar Saha and Sri Biswanath Saha in the suit but the defendant No. 1, Shri Sri Anil Kumar Saha in the joint written statement with the defendant No. 2 has clearly pointed out that the defendant No. 2, Sri Biswanath Saha had taken the burden of taking lease of the suit premises alone. On the basis of this assertion made by Sri Anil Kumar Saha, the learned appellate Court held that the defendant No. 2, i.e., Sri Biswanth Saha alone was under obligation to satisfy the decree to be passed. It is on the above premises that the learned appellate Court over turned the judgment of the learned trial Court, allowed the appeal and decreed the suit.

4. It may be noted that this second appeal has been admitted for hearing on two substantial questions of law, namely, (1) Whether the first appellate Court committed error in reversing the decree without making the original defendant No. 1 as a party in the appeal; (2) Whether tenancy of the defendant was not determined as per provision of law.

5. I have heard Mr. A.K. Bhowmik, learned senior counsel, assisted by Mrs. K. Dab, learned counsel for the appellant and Mr. H. Sarkar, learned counsel for the respondents.

6. Mr. A.K. Bhowmik, learned senior counsel for the appellant has streneously urged that the learned appellate Court committed illegality in passing the decree against the defendant alone without considering the fact that the suit was filed against two defendants and that the name of the other defendant was not struck off from the plaint by the learned trial Court. His contention is that the defendant namely, Sri Anil Kumar Saha was a necessary party in the appeal and in his absence the judgment and decree passed by the learned trial Court could not be set aside or interfered with. He submits that the principle of abatement will apply in the case of this nature and that without impleading the defendant No. 1 in the original suit, the appeal cannot survive. In support of his contention, he cited the following decisions ; Invest Import v. Watkin Mayors and Co. reported in AIR 1978 NOC 213 (Delhi), Din Narain Singh and Ors. v. Kedar Nath Singh and Ors. , Harihar Prasad Singh and Ors. v. Balmiki Prasad Singh and Ors. and Sri Chand and Ors. v. Jagdish Pershad Kishan Chand and Ors. reported in AIR 1966 SC 1427.

7. In the instant case the defendant No. 1 has been admittedly not impleaded in the appeal but the question is whether on the facts and circumstances of this case he is a necessary party. Necessary parties are those in whose absence the Court cannot pass any effective decree at all. The learned appellate Court has substantially dealt with this issue at para -17 of the judgment which may be reproduced hereunder :

17. The appellants-plaintiffs impleaded both Anil Kr. Shah and Biswanath Saha as to have taken the lease of the suit premises but respondent-defendant Biswanath Saha himself has taken the burden of taking the lease of the suit premises alone. The defendant No. 1 Anil Kr. Saha by submitting joint written statement with the defendant No. 2 has also supported the contention of the letter. So the respondent-defendant Biswanath Saha is under obligation to satisfy the decree to be passed.

8. Moreover, in Para-4(a) of the joint written statement, the defendants have jointly admitted that after the expiry of the first lease period, the defendant No. 1 left Udaipur after retiring from the partnership firm of the defendant No. 2 and started a new business in the year 1395 B.S. and he is till now continuing his separate and independent business at Agartala till today permanently. To appreciate the position better, I also reproduce herein the aforesaid paragraph :

4(a) The defendant No. 1 along with defendant No. 2 created tenancy with the plaintiff as stated in para 3 of the plaint no doubt, by a registered deed for 1393 and 1394 B.S. But after the expiry of the said period the said defendant No. 1 left Udaipur after retiring from the partnership Firm of defendant No. 2 and started a new business at Agartala in the year 1395 B.S. and he is uptill now continuing his separate and independent business at Agartala uptill today permanently. On and from 1395 B.S. he has no relation with the business of defendant No. 2 and tenancy of defendant No. 2 under the plaintiffs uptill today. He is a separate person at every respect. So he has been falsely and maliciously implicated in this case for personal loss of him and for no reasons. His name be struck off from the suit.

9. From the above paragraph of the joint written statement there can be no doubt that the defendant No, 1 is not necessary party and the suit can be decreed against the defendant No. 2, i.e., the appellant herein alone. At this stage it may be noticed that the appellant had already surrendered possession of the suit premises to the plaintiffs and as such the question of evicting him from the suit premises is no longer in issue. In so far as the damages awarded by the learned appellate Court is concerned, the liability for payment for the same is to commence only with effect from 10.9.1993 i.e. from the date of filing the suit. The joint written statement shows that the defendant No. 1 has separated from the partnership of the defendant No.2 and left Udaipur after the expiry of the first lease period and is continuing his separate and independent business at Agartala till today. It is thus obvious that the appellant cannot have legitimate grievance in respect of the damages imposed upon him by the learned appellate Court when such damages are in respect of the period after the defendant No. 1 left the suit premises.

10. I have carefully gone through the aforesaid decisions cited by the learned senior counsel for the appellant but they are not applicable to the facts of this case. In the view that I have taken, I do not find any infirmity much less substantial question of law in the findings and conclusion of the learned appellate Court in respect of this question.

11. It is next contended by Mr. A.K. Bhowmik, learned senior counsel for the appellant that the learned appellate Court has committed illegality in coming to the conclusion that there was no necessity of service of notice under Section 106 of the Act and by ignoring the admitted case of the plaintiffs that the tenancy of the defendants were purportedly determined by the plaintiffs by notice under Section 106 of the act. The learned counsel for the appellant submits that the learned appellate Court wrongly came to the conclusion that the status of the appellant is tenancy at Will. The point for determination therefore, is that whether the appellant is a tenant at Will. There is no dispute that the lease was created on monthly rent for more than one year. It may be noted that after the expiry of two years terms of the initial lease the defendant continued the lease of two rooms along with two more rooms at enhanced rate of Rs. 1,250 per month under a fresh term and condition that rent of each month shall be paid within the 7th day of the following month and the defendant shall vacate the premises on 7 day notice. The defendant continued to pay rent till Falguna 1399 B.S. for more one year and discontinued payment of rent from the month of Chaitra 1399 B.S. it is also admitted position that the tenancy under the plaintiffs in respect of the suit premises commenced from the month of Baishaka 1395 under an oral agreement with the plaintiffs and further that the defendant had paid an advance of Rs. 50,000 in two instalments which according to the terms of lease, was to be adjusted against payment of rent @ Rs. 450 per month for 10 years. From this finding, the learned appellate Court has held that the lease was created on monthly rent for more than one year and that as per provision of Section 107 of the Act a lease of immovable property from year to year or for a term exceeding one year or reserving a yearly rent can be made only by registered instrument. The learned appellate Court on the basis of this finding had concluded that since the lease was not created by a registered instrument, the possession of the defendant of the suit premises under an unregistered deed which is compulsorily registerable by law is that of mere tenant at Will.

12. Placing strong reliance on the decision of the Allahabad High Court in Shib Nath v. Shri Ram Bharosey Lal (FB) the learned senior counsel for the appellant submits that the facts of the case are that B was the original lessee of the disputed shop. The original lease was for eleven months. It was stated in the document that on the expiry of the period the lessee would vacate the shop and hand over possession to the lessor without notice. B was also liable to be ejected in case of default in payment of rent for any one month. There was no provision for extension of the lease. B continued to be in possession after the stipulated period was over. After the death of B his son the defendant remained in possession of the shop for several years. There was also evidence that the rate of rent was increased subsequently. It was under such circumstances the Allahabad High Court held that B was not a tenant at Will at the time of his death. Either he was a tenant under a specific renewed lease or he was a tenant holding over. In either case, the Court continues, he was a tenant from month to month and consequently the defendant was also a month to month tenant and not a tenant at Will. The facts of this case are somewhat different from the facts of the above cited case, in that in this case there is a categorical finding by both the Courts below that the plaintiffs refused to accept the offer of rent from the defendants after service of notice to quite upon the defendants. On this admitted position, I do not find any perversity in the findings of the learned appellate Court that the defendant-appellant is a tenant at Will.

13. The next question is whether it is necessary for the plaintiffs to issue notice under Section 106 of the Act to the defendant for eviction. This question has been elaborately discussed by the learned appellate Court in which it held that in a case of tenant at Will a demand for possession is sufficient to determine the lease and no notice under Section 106 of the Act is necessary. Consequently, it decided that for determination of the lease between the plaintiff- respondents and the defendant-appellant, service of notice upon the defendant – appellant . was not required. The learned appellate Court also held that even if notice under Section 106 of the Act is necessary, the aforesaid provision does not require the mentioning in the notice of the purpose for which the plaintiff – respondents require the suit premises and that it is also not necessary to mention in the notice the fact of default of the appellant – defendant in paying the monthly rent as a reason for forfeiture of the agreement of lease since he is a tenant at Will. The common ground in this case is that notice under Section 106 of the act was served by plaintiff- respondents to the defendant – appellants, which was received by the defendant No. 2 on 16.6.1993. In view of the findings that notice was duly received by the defendant – appellant and that the defendant – appellant is a tenant at Will, there is no requirement under Section 106 of the Act for mentioning the purpose for which he was asked to vacate the suit premises. All that it requires is a mere demand of possession of the suit premises by the plaintiff-respondents, which will have the effect of putting an end to the tenancy at Will.

14. In the result, I do not find any illegality in the impugned judgment and decree of the learned appellate Court for interference by this Court. Therefore, the appeal is dismissed being devoid of merit. However, there shall be no order as to costs. Interim order, if any, stand vacated.