Mathura Mohan Goswami v. Jyotirmoy Chowdhury Opposite Party.

1. This Rule arises out of an order made by the Second Additional Munsif, Alipore, Sri S.P Dutta, on the 18th June, 1964, striking off the petitioner's defence against delivery of possession in the suit for eviction. This order striking out the defence was made under section 17(3) of the West Bengal Premises Tenancy Act, 1956. The Rule was issued on the 7th July, 1964. By that Rule ad interim stay of execution was granted.

2. The Second Additional Munsif at Alipore then took an extraordinary step. On the 10th July, 1964 he passed two orders—one refusing to stay the suit in spite of the fact that a petition was filed before him on the 8th July, 1964 with the usual Advocate's letter intimating that a Rule had been issued by this High Court and that an ad interim stay of further proceedings in the suit had been granted by this Court pending the hearing of the Rule on the 7th July, 1964. The learned Munsif did not stop by that order. He passes a second order on the same day calling the suit for hearing, and naturally as no one appeared he dismissed for default the plaintiff's Title Suit No. 151 of 1964 which was pending in his Court. When the matter came up before this Court, the learned Advocate on either side pointed out to the extraordinary step taken by this Munsif, whereupon this Court on the 25th August, 1964 by an order directed the District Judge of 24-Parganas, within whose jurisdiction this Munsif functions, to obtain and forward to this Court within a fortnight from date an explanation from this Munsif why he had refused to stay and why he had dismissed the plaintiff's suit.

3. Pursuant to that order from this Court the learned District Judge has furnished the Munsif's explanation to this Court.

4. The relevant portion of the explanation of the Munsif reads as follows:—

“The petition supported by an affidavit and a lawyer's letter, filed by the defendant was not moved. The matter as usual was taken up after recess when a good number of interlocutory matters are heard. Many petitions are filed, but some are not moved. As I am to dispose of many interlocutory matters then and there, it is not possible for me to go through the contents of a petition which is not moved. I did not, therefore, peruse the contents of the petition in question. I was under the impression that it was a simple petition for time. Further this is the solitary instance in my court where this type of petition was supported by an affidavit. As my attention was not drawn to this fact, so I had not the least idea about the affidavit sworn in this case. Consequently I was not aware of the issue of any Rule by the Hon'ble Court in this suit.

The suit was dismissed for default because both the parties were found absent on repeated calls. Whatever I did in this case I did so bona fide and in complete ignorance of the fact that a Rule was issued by the Hon'ble Court. I am extremely sorry for the orders which were passed by me unwittingly after the said Rule was obtained by the defendant. I once again express my sincere regret for what had happened through inadvertence and I beg to be excused therefor.”

5. The explanation quoted above shows a very sorry state of affairs. If petitions are dismissed without looking into them on the ground that many interlocutory matters are to be disposed of, then a halt has got to be put to this kind of practice. How can a Judge dismiss an application without looking into it and without even caring to know what is in the application? Is this speed in disposal of cases? Or is it travesty of justice? To dispose of an application only by “the impression that it was a simple petition for time” when in fact it was a petition conveying the High Court's order for stay has led to grave injustice. The Munsif should not dispose of an application without reading it and without knowing what it is about. This Court expresses its great disapproval of and displeasure at the mode in which the Munsif dismissed the suit and the application only by a fancied ‘impression’ and not by reading what it was about.

6. The Munsif's observation that this was a solitary instance in his court where this type of petition was supported by an affidavit does not make a good excuse. If anything, it shows that his experience is very limited. It has been almost the consistent practice for more than half a century. I shall refer to the decision of the Division Bench of this Court of Mookerjee and Caspersz, JJ. in (1) Sati Nath Sikdar v. Ratanmani Naskar, decided on the 7th April, 1911 and reported in 15 C.L.J 335. There an application was made by the judgment-debtor to the Munsif for adjournment of the proceedings for the determination of mesne profits pending before him and in support of that application, an affidavit was filed in which it was specifically stated that the High Court had already stayed proceedings. To the affidavit was annexed as an exhibit, a letter in original written by the Advocate of the High Court who had obtained the Rule to the pleader in charge of the case in the court of the Munsif. It was expressly stated in the letter that the High Court had issued a Rule and had also ordered an ad interim stay of the proceedings pending the hearing of the Rule. This was exactly the same procedure which was followed in this case before me. This is a sound practice and serves the ends of justice, apart from being sanctified by the long tradition that I have indicated.

7. I shall now quote here from the judgment of the Division Bench given by Mukerjee, J., in that case at page 336 of the report already quoted (15 C.L.J 335) in order to show what the Division Court did in that case:

“It is beyond controversy that the Munsif has laid himself open to the gravest censure for the manner in which he has conducted himself and the explanation he has submitted is wholly unsatisfactory. His act plainly amounts to a contempt of the authority of this Court, and we trust, he will profit by the warning now given that the arm of this Court is long enough to reach any person who may behave in this manner. As regards the order he has made, we need only observe that it is wholly without jurisdiction and must be cancelled.”

8. I regret to have to say that the learned Munsif in this case also has laid himself to the gravest censure and that his explanation is certainly not satisfactory. His explanation only shows that he must mend his ways in dealing with petitions presented before him. Having regard to the regret that he has expressed I propose not to make any further order except to say that the Munsif is warned that in future he should not dismiss suits and petitions without reading them. The learned District Judge is directed to convey this warning to the learned Munsif.

9. Following the decision of the Division Bench of this Court I propose to take the same step as taken there and I set aside both the orders of the Munsif made on the 10th July, 1964 refusing to stay the suit and dismissing the suit. The suit is restored.

10. Coming now to the merits of the order of the Munsif dated the 18th June, 1964 whereby he struck off the petitioner's defence against delivery of possession a few relevant facts may be set out. The defendant petitioner was a monthly tenant in respect of a portion of the ground floor flat of premises No. 110, Ballygunj Gardens, Calcutta-19 under the opposite party Jyotirmoy Chowdhury at a rental of Rs. 150/- per month according to English Calendar month. The tenancy was created on the 1st December 1960, but there was an agreement in writing of the terms of that tenancy on the 2nd December, 1960. A term of that agreement was that the petitioner would vacate the premises on the expiry of the 30th November, 1961. On the expiry of the first year the landlord Chowdhury, the opposite party required the petitioner to sign another letter of agreement in similar terms. That letter was dated the 2nd December, 1961, recording the agreement in terms of the tenancy which started from 1st December 1961.

11. Trouble began in November, 1962. At that time the petitioner on official duty was in U.S.S.R His wife and two children continued in the said premises. It is the petitioner's case that one gentleman Mr. T.D Gupta used to reside on the second floor of the above premises and it was he who carreid on negotiation for the petitioner's tenancy and gave the petitioner possession of the tenancy. According to the petitioner this Gupta used to collect rent and hand over to the petitioner rent receipts purported to have been signed by the landlord opposite party Sri Chowdhury. According to the petitioner the landlord Chowdhury did not reside at 110, Ballygunj Gardens and the petitioner was not aware of the place where the plaintiff resided. The rent receipts granted to the petitioner did not bear any address of the plaintiff.

12. The petitioner's case is that there was an agreement between him and the landlord Chowdhury acting through T.D Gupta of 110 Ballygunj Gardens who is said to be the authorised agent of the landlord, to the effect that the petitionre's tenancy would continue for a further period up to the end of June 1963, on the same terms and conditions. In accordance with the agreement rent for the month of November, 1962, was tendered to Chowdhury through Sri Chowdhury's authroised agent Sri T.D Gupta as usual on the 4th November, 1962, but that tender was refused. This was the beginning of the trouble. This 4th November, 1962, was a Sunday. As the petitioner was away, his wife remitted the rent for November, 1962, immediately the next day, being Monday, the 5th November, 1962, by money order. This money order was sent, according to the submission of the learned Advocate for the landlord opposite party under registered cover, c/o. T.D Gupta, 110 Ballygunj Gardens and was redirected to 21.A, Raja Basanta Roy Road, which is supposed to be the address of the landlord Chowdhury. It may be stated here also that according to the terms of the tenancy the rent of Rs. 150/- was to be paid on or before the 4th day of the month from which the rent would be due in advance and that was the reason why it was tendered on the 4th November, 1962. Now this money order which was sent on the 5th Nov., 1962, was received by the landlord Chowdhury on the 14th November, 1962, and was refused. On the refusal the petitioner's wife deposited the same with the Rent Controller within five days thereafter i.e, on the 19th November, 1962. Since then the deposit had been made regularly within 3rd or 4th of each month with the Rent Controller. That was the position at the time when the suit was filed.

13. The suit was not filed until the 7th August, 1963, although according to the landlord Chowdhury, the opposite party, the tenancy expired as early as the 30th November, 1962. The suit whcih was instituted by the landlord Chowdhury was a suit on the ground, not of default in the payment of rent, but for breach of the condition of the tenancy to vacate and deliver up possession on the 30th November, 1962. In other words, the suit was a suit for ejectment on the ground mentioned in section 13(1)(j) and (k) of the West Bengal Premises Tenancy Act, 1956.

14. The summons in this suit was served on the 4th September, 1963, and the present application for striking out the defence under section 17(3) of the Act was made by the landlord opposite party on the 7th February, 1964.

15. These facts will be sufficient for the purposes of appreciating the merits of the points raised.

16. The main and the only reason for which the learned Munsif struck off the defence against delivery of possession is the finding there was no personal tender of the rent to the landlord on the 4th November, 1962, so that the sending of the money order and the subsequent deposits of rent with the Rent Controller on the 19th November, 1962, were beyond time and illegal. The only ground on which he comes to this conclusion that there was no tender is that T.D Gupta was not the authorised agent of the landlord Chowdhury. The learned Munsif in giving his reasons says that T.D Gupta was a stranger third party and the plaintiff landlord could not be bound by any act of such a third party. The petitioner's wife who gave evidence rightly stated that she did not meet the plaintiff nor did the plaintiff landlord admit to her that T.D Gupta was the plaintiff's authorised agent. What the learned Munsif fails to notice is that this was not the only instance in the month of November, 1962, but the whole case of the petitioner is that it was T???. Gupta who really carried on the negotiations of the petitioner's tenancy and gave the petitioner possession of the tenancy and used to collect rent from the petitioner and also got rent receipts from the landlord. The learned Munsif overlooked all that course of conduct. But the more serious thing that be overlooked was that this T.D Gupta was not a so-called third party or a stranger to the house in the above premises. The Corporation Assessment Register which is annexed to the affidavit-in-reply of the petitioner shows that one Sm. Suprava Gupta, C/O. Tarak Das Gupta is the owner of the premises No. 110, Ballygunge Gardens. It is this Tarak Das Gupta, who is T.D Gupta. T.D Gupta, therefore, is not a third party or a stranger in the above premises.

17. In that view of the matter the learned Munsif apparently went wrong entirely when he said—

“Admittedly the plaintiff did not authorise T.D Gupta to accept any rent from the defendant, so any tender to T.D Gupta, made suo motu by the defendant is a nullity and it is not sufficient compliance with law. The defendant even did not examine T.D Gupta.”

18. How was it possible for the petitioner to examine T.D Gupta when it is alleged by the petitioner that Sri Gupta was the authorised agent of the plaintiff landlord.

19. Serious allegations are made by the petitioner in his affidavit-in-reply before this Court suggesting almost a well-planned device to get tenants out by the peculiarly skilful method followed by the landord in this case. It is said that one Dr. Satya Narain Garg was a tenant in respect of the very same premises at a monthly rent of Rs. 175/- from December 1958, to September 1962, and that to him also the said T.D Gupta represented that one Mr. M.K Sen was the landlord and though the rents were paid to Sri T.D Gupta he used to give receipts for the same purported to be signed by Mr. M.K Sen and ultimately the said Dr. Garg was made a defaulter in payment of rents from April 1962 to July 1962 which were sent by Money Orders addressed to Mr. M.K Sen by the acts of the same T.D Gupta. In fact an affidavit has been fled by Dr. Satya Narain Garg in these proceedings, who is an Assistant Director, Central Forensic Science Laboratory, Calcutta and Ex-Officio Assistant Chemical Examiner to Government of India. His affidavit also suggests that this T.D Gupta used to collect rents in the same premises. There also in his case Money Orders came back refused and the landlord's address was a mystery. Dr. Garg's tenancy was also accompanied by excatly the same type of agreement in writing which is produced here.

20. Mr. Lala Hemanta Kumar for the petitioner has drawn my attention to this typical letter of tenancy which according to him is a part of the device adopted by the landlord. These letters of tenancy began always on the 2nd of the month for instance on the 2nd December 1961 in this case, although the tenancy started from the 1st December 1961. The idea obviously is to bring the tenant within the mischief of section 13(1)(j) and (k) of the West Bengal Premises Tenancy Act, 1956, and to deprive him of the statutory protection against eviction. Section 13(1) of the Act inter alia provides the following two grounds in clauses (j) and (k) for eviction.

“(j)… where the tenant has given notice to quit, but has failed to deliver vacant possession of the premises to the landlord in accordance with such notice,

(k)… where subsequent to the creation of the tenancy, the tenant having agreed in writing with the landlord to deliver vacant possession of the premises to the landlord has failed to do so.”

21. Therefore, it is said in clause 6 of the letter of tenancy of the 2nd December 1961, in this case that one of the conditions is to quietly and peaceably yield and deliver up possession by the the 30th November, 1962, and it adds the significant words “It may be noted that no separate notice of vacancy will be given to you and this may be treated as an irrevocable notice of vacancy.” This is criticised as the clever trick of the landlord. But the whole difficulty for the clever landlord in this case is that the notice to quit in clause (j) or the agreement in writing in clause (k) is to be construed strictly and it is intended to be a notice to quit or an agreement in writing which is genuinely after and bona fide subsequent to the tenancy. A clause like this deprives the tenant from the statutory protection and it must be strictly construed against the landlord and in favour of the tenant. But the landlord opposite party's difficulty in this letter of tenancy is created by the opening words:— “This is to place on record that I have agreed to continue tenancy for 12 months from 1.12.61 in respect of the ground floor flat at the above mentioned address as per schedule set out below, under you on the following terms and conditions” which inter alia includes the above condition 6. No doubt it is true that the letter is dated the 2nd December, 1961 which is a date subsequent to the date of the tenancy. But then on the construction of the above it is plain that it is not a “subsequent” agreement in writing to deliver vacant possession nor a genuine notice to quit but is truly and really a subsequent written record of the terms of the tenancy that had already started operating from the 1st December, 1961. It will not be necessary further at this stage to finally decide this question of interpretation as that will await the decision at the trial.

22. For the reasons and the facts stated above I am satisfied that the deposits were not beyond time or illegal in the facts and circumstances of this case.

23. I hold that T.D Gupta was an agent of the landlord in the facts and circumstances of the case and on the evidence of the petitioner's wife and I am not at present prepared to accept the denial of the landlord opposite party, specially in the absence of T.D Gupta's evidence and in the face of the Assessment Register of the Corporation. The defence against delivery of possession in the circumstances and in the facts of this case cannot, therefore, be struck off now. Admittedly there has been no default in the payment of rent. The rent was tendered on the 4th November, 1961, to the authorised agent of the landlord within the meaning of section 21 of the West Bengal Premises Tenancy Act and was, therefore, rightly deposited with the Rent Cnotroller and that subsequent deposits were also made within time on the facts of this case. Neither under section 21 nor under section 22 of the Act can it be said that in the facts and circumstances of this case any deposit with the Rent Controller was beyond time or illegal.

24. The Rule issued by this Court on the 7th July, 1964, is therefore, made absolute with costs and the learned Munsif's order No. 25 dated the 18th June, 1964, striking out the petitioner's defence against delivery of possession is set aside. The learned Munsif's further two orders made on the 10th July, 1964, as mentioned above are also set aside.

S.K.B