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Inder Sengupta v. Sm. Prova Rani Chakraborty And Another
Structured Summary of the Opinion (Banerjee, J.; appeal partly allowed)
Factual and Procedural Background
The plaintiffs purchased premises No. 139A, Rash Behari Avenue by a deed dated 5 June 1973. They alleged that the defendant was their tenant of a second-floor flat described in Schedule "A" (rent Rs. 675 per month), that the defendant defaulted in payment of rent from February 1975 onwards, committed nuisance and threats, sub-let part of the flat for business, and forcibly occupied certain western-side portions of the premises (one garage, one small mezzanine room and an open terrace) described in Schedule "B". The plaintiffs filed suit for recovery of Khas possession on 9 February 1976. On 28 April 1977 the plaintiffs applied to amend the plaint to add two grounds for eviction, including the plaintiffs' reasonable requirement for the flat. The defendant filed a written statement asserting, inter alia, tenant rights in respect of both Schedules A and B dating from the vendor, that rents for Feb. and Mar. 1975 had not been collected then later attempted to be sent by Money Order (refused), and that thereafter rent was deposited with the Rent Controller. Both courts below ultimately held in favour of the plaintiffs on the issues that gave rise to this appeal by the defendant.
Legal Issues Presented
- Whether the amendment of the plaint (made on 28-4-1977) introducing a ground of reasonable requirement could be allowed where the suit had been filed within three years after the plaintiffs' purchase, in view of S.13(3A) of the West Bengal Premises Tenancy Act, 1956.
- Whether the defendant's admitted non-payment of rent for February and March 1975 (two months within a 12-month period) entitled the plaintiffs to eviction, or whether the defendant was entitled to relief as a first defaulter under S.17(4) of the West Bengal Premises Tenancy Act.
- Whether the defendant's alleged forcible occupation of the Schedule B properties constituted nuisance/annoyance under S.13(1)(e) (or other applicable clauses) making him liable to eviction.
- Whether the Schedule B properties formed part of the tenancy (i.e., whether the defendant had tenant rights in respect of Schedule B) or whether those portions were trespassed and liable to be restored to the plaintiffs.
- Whether acceptance of costs when an amendment was allowed amounted to waiver by the defendant of any objection to the amendment.
Arguments of the Parties
Appellant (Defendant) — Mr. Ghosh
- Contended that the suit and amendment situation meant the decree was based solely on the ground of reasonable requirement introduced by amendment; under S.13(3A) of the West Bengal Premises Tenancy Act the amendment could not have been allowed, so the decree based on reasonable requirement could not be sustained.
- Did not dispute the admitted default for February and March 1975 and therefore did not argue there was no default at all.
Respondents (Plaintiffs) — Mr. Saktinath Mukherjee
- Argued the defendant was a defaulter for two months within 12 months and so liable on that ground.
- Argued the defendant had trespassed the Schedule B properties and therefore committed nuisance within the meaning of S.13(1)(e) of the West Bengal Premises Tenancy Act.
- Maintained that the amendment was allowed after 3 years from purchase though the suit had been filed within 3 years; argued that because the courts below allowed the amendment and directed payment of costs which was accepted, the defendant waived objection to the amendment.
- Relied upon earlier authorities (including AIR 1947 Lah 296 and AIR 1966 Punj 509 — Niader Mal v. Ugar Sain) to support the contention that encroachment or acts preventing use of common facilities may constitute nuisance sufficient for eviction.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| AIR 1947 Lah 296 | Held that not every inconvenience or annoyance amounts to nuisance; however, acts such as stopping other occupants from using bath/latrine could amount to nuisance; mere encroachment may in certain circumstances amount to nuisance. | The plaintiffs relied on this authority to argue that the defendant's trespass of Schedule B could amount to nuisance; the court observed the reliance but held the appellant could not obtain a decree in this second appeal by raising a new case not put before the lower courts. |
| AIR 1966 Punj 509 (Niader Mal v. Ugar Sain) | Similar principle: certain acts that prevent use of essential common facilities may constitute nuisance/annoyance warranting eviction. | Invoked by the plaintiffs' counsel to support a nuisance argument arising from alleged encroachment; the appellate court noted the reliance but declined to convert that into a new ground for decree not pleaded below. |
| (1982) 86 Cal WN 841 : AIR 1982 Cal 407 (Sudha Mukherjee v. Sankar Chatterjee) | Where an amendment is sought solely to circumvent the legal bar imposed by sub-sec. (3A) of S.13 of the West Bengal Premises Tenancy Act, the amendment should not be allowed; the date of original presentation of the plaint remains the date of the suit for such amendments that do not change nature/character attracting s.21 Limitation Act. | The court expressly followed and agreed with this Division Bench decision, holding that the amendment in the present case could not properly be allowed to introduce a ground that was barred by S.13(3A) when the suit had originally been filed within three years of purchase. |
| AIR 1975 SC 1146 (B. Banerjee v. Anita Pan) | The Supreme Court discussed the position of suits pending and the treatment of amendments and pleadings where certain clauses were introduced by amendments to the statute, and directed, in context, that plaintiffs be allowed to file fresh pleadings in certain circumstances to avoid multiplicity of litigation. | The court reviewed this authority and distinguished it: the Supreme Court's observations related to suits pending at the time of the statutory amendment and were not applicable to a suit instituted after the effective date of the relevant amendment; the court therefore did not accept the plaintiffs' reliance on it as permitting the amendment in this case. |
| (1910) 12 Cal LJ 556; AIR 1964 Pat 275; AIR 1933 Mad 410 | Older authorities cited by the court as covering points argued by counsel (the opinion does not elaborate the principles from these reports in detail in the text). | The court stated it was not necessary to refer to these cases further but indicated they cover points argued; no new application of principle from them was elaborated in the judgment. |
Court's Reasoning and Analysis
The court's analysis proceeds in structured steps based on facts and statutory provisions recited in the record:
- Default in rent: The defendant admitted non-payment of rent for February and March 1975. The court held that the defendant is therefore a defaulter for two months within a twelve-month period. However, because this was a first default, S.17(4) of the West Bengal Premises Tenancy Act prevents a decree for eviction on that ground; the defendant is therefore entitled to the relief contemplated by S.17(4). The appellant did not contest the admitted default.
- Nuisance and trespass (Schedule B): Both lower courts had found that the defendant was a tenant of Schedule A only and that Schedule B properties were not part of the tenancy; the defendant had trespassed on Schedule B. The plaintiffs attempted to rely on authorities that encroachment or preventing use of facilities can amount to nuisance. The appellate court observed that Issue No. 5 on nuisance had been decided against the plaintiffs by the courts below, and held that the plaintiffs could not obtain a decree in this second appeal by making out a new case (i.e., relying on nuisance based on the trespass to B) which had not been put forward in the Courts below.
- Amendment of plaint and statutory bar (S.13(3A) and S.13(1)(ff)/(f)): The pivotal legal question was whether an amendment to the plaint (filed after purchase) introducing grounds that would have been barred by S.13(3A) could be allowed where the suit itself had been instituted within three years of purchase. The court followed the Division Bench decision in Sudha Mukherjee v. Sankar Chatterjee, which held that where an amendment is sought merely to circumvent the statutory bar in S.13(3A), the amendment should not be permitted and the original date of presentation stands. The court declined the plaintiffs' attempt to treat the suit as if instituted at a later date to avoid the statutory prohibition, and rejected reliance on the Supreme Court decision (B. Banerjee v. Anita Pan) as distinguishable because that dealt with suits pending at the date of amendment to the statute.
- Waiver argument: The plaintiffs argued that because the amendment had been allowed and costs awarded (and accepted), the defendant had waived objection to the amendment. The court rejected this, holding that the statutory prohibition under S.13(1)(ff) read with S.13(3A) embodies public policy designed to protect tenants from eviction by transferee landlords within three years; such a statutory protection is not a mere personal right that can be waived by agreement between the parties. Accordingly, acceptance of costs did not validate an amendment that is otherwise barred by the statute.
- Concurrent findings on Schedule B and limited rights of defendant: The appellate court agreed with the concurrent findings of the courts below that Schedule B properties were not part of the tenancy and that the defendant had trespassed upon them. The court recognized, however, that the defendant retained rights of ingress and egress through passages and staircases necessary for enjoyment of the Schedule A premises.
Holding and Implications
APPEAL PARTLY ALLOWED
Holding (core rulings):
- The defendant is declared to be a defaulter for two months (February and March 1975) by admission, but the plaintiffs are not entitled to a decree for eviction on that ground because S.17(4) affords relief to a first defaulter.
- The amendment to the plaint that introduced the ground of reasonable requirement (and thereby sought to invoke S.13(1)(ff)/(f)) could not be allowed so as to circumvent the bar in S.13(3A); consequently the plaintiffs cannot obtain a decree for recovery of possession in respect of the Schedule A flat on that ground.
- The plaintiffs' suit is decreed insofar as it concerns the Schedule B properties (one garage, one small mezzanine room and open terrace on the second floor): the defendant is to deliver vacant possession of the Schedule B properties to the plaintiffs within three months from the date of the judgment, subject to the defendant's right of ingress and egress through those parts as necessary for enjoyment of the Schedule A premises.
- There will be no order as to costs.
Implications:
- Direct effect on the parties: The defendant retains tenancy rights in respect of the Schedule A flat (eviction on reasonable requirement not allowed due to the impermissible amendment), is recognized as a first defaulter but is protected from eviction under S.17(4), and must vacate Schedule B portions found to have been trespassed within three months, subject to ingress and egress rights. The plaintiffs recover possession of Schedule B only.
- On the law: The court followed existing authority (notably the Division Bench in Sudha Mukherjee v. Sankar Chatterjee) that an amendment cannot be used to evade the statutory bar in S.13(3A); the opinion does not purport to establish a new legal principle beyond applying and following those precedents. The judgment emphasizes that statutory protections for tenants under S.13(1)(ff) read with S.13(3A) are matters of public policy and cannot be waived by the parties.
- No new precedent was announced beyond the application of cited authorities and the affirmance of concurrent factual findings of the courts below regarding trespass of Schedule B properties.
Disposition recorded in the opinion: "Appeal partly allowed." (Sharma, J. agreed.)
Banerjee, J.:— This appeal by the defendant arises out of a suit for recovery of Khas possession. The plaintiffs are the owners by purchase of premises No. 139A, Rash Behari Avenue by a deed of conveyance dated 5th June, 1973. The defendant, it is alleged, is a tenant under the plaintiffs in respect of a flat on the second floor of the suit premises described in Schedule “A” to the plaint at a rental of Rs. 675/- per month. It is further alleged that the defendant did not pay rents from February, 1975 onwards and he is guilty of committing nuisance and annoyance by using abusive languages and of threatening the plaintiffs and the family members. It is stated further that the flat was let out to the defendant for residential purposes but he has sub-let a portion to Kunjalal Mahabir Prasad for carrying on business in the suit flat. The defendant, it is alleged, forcibly occupied one garage on the western side of the suit premises, one small mezzanine room and open terrace on the second floor as described in the Schedule “B” to the plaint. On these grounds the plaintiff's filed the suit on 9th Feb. 1976. The plaintiff's applied for amendment of the plaint on 28-4-1977. The plaintiffs had purchased the suit premises on 5th June, 1973. On 28th April, 1977 the plaintiffs filed an application for amendment of the plaint introducing two new grounds for eviction of the defendant from, the said flat. One of the grounds is that the plaintiffs required the suit flat for their own use and occupation as their present accommodation is insufficient as also the defendant without their consent converted the English type of privy commonly known as “commode system” into an Indian style by raising pucca construction. The defendant contested the suit by filing written statement, contending inter alia, that he is a tenant in respect of both the Schedules, “A” and “B” to the plaint, since the time of the vendor of the plaintiffs. It is further stated that “B” Schedule property, including the garage, is a part of the tenancy. The plaintiffs, it is alleged, did not collect rents for the months of Feb. and Mar. 1975. Thereafter the defendant sent the rents for those two months by Money Orders but the plaintiffs refused to accept rents by Money (Orders. Hence the defendant went on depositing the rent with the Rent Controller since April 1975. It is further alleged that the notice to quit is bad, invalid, illegal and insufficient. The defendant denied the allegations of sub-tenancy. On these grounds both the Courts below held in favour of the plaintiffs. Hence the appeal by the defendant.
2. On behalf of the defendant, Mr. Ghosh contended that the suit was filed within 3 years after the purchase of the premises by the plaintiffs on the ground of default and committing nuisance. Application for amendment was made on 28-4-77 and granted on 27th June, 1977. The decree was passed on that ground alone. It is argued that in view of S. 13(3A) of West Bengal Premises Tenancy Act, 1956 the amendment could not have been allowed and therefore the decree on the ground of reasonable requirement cannot be sustained.
3. Mr. Saktinath Mukherjee on behalf of the respondents-plaintiffs contended firstly that the Courts below ought to have held that the defendant was in default in payment of rent for two months within the period of 12 months. Secondly it is argued that the Courts below have held that the defendant is a trespasser in the part of the prmises, and therefore the defendant has committed nuisance within the meaning of S. 13(1)(e) of the West Bengal Premises Tenancy Act. Thirdly it is contended that the amendment was granted beyond 3 years after the purchase though the suit was filed within 3 years from the date of purchase. Mr. Mukherjee contended that the amendment was made, the Courts below directed to pay the costs and the cost was accepted and as such there was a waiver of objection regarding the amendment of the plaint.
4. In so far as the plaintiffs plea of default is concerned, it must be stated that in the written-staternent filed by the defendant it has been admitted that the defendant has not paid rent for the months of February and March 1975, and therefore there is no question that the defendant is a defaulter for two months within the period of 12 months but being a first defaulter, no decree for eviction on that ground can be passed in view of the provision of S. 17(4) of the West Bengal Prermises Tenancy Act.
5. Mr. Ghosh very fairly did not argue that there was no default at all even after the admission of the defendant about the default for the months of Feb. and Mar. 1975. We have, therefore, no option but to hold that the defendant has failed to pay the rent of two months within the period of 12 months and, therefore, must be held to be a defaulter but is entitled to the relief under S. 17(4) of the West Bengal Premises Tenancy Act. Next question mooted by Mr. Mukherjee is nuisance coming under S. 13(1)(e) of the Act. It is argued by Mr. Mukherjee that both Courts below held that the defendant has taken forcible possession of the suit premises. Therefore they are trespassers in respect of the “B” Schedule properties and the “B” Schedule properties are not part and parcel of the defendant's tenancy. Mr. Mukherjee however contended that if this finding is correct then this constitutes nuisance and annoyance within the meaning of S. 13(1)(e) of the West Bengal Premises Tenancy Act. Issue No. 5 framed in the suit regarding the nuisance and annoyance is as follows: Is the defendant guilty of committing nuisance and annoyance as alleged? Is that the defendant and his men used filthy languages and threatened the plaintiffs and husband of the plaintiff No. 2 with dire consequences. Both the Courts below, however, held against the plaintiffs on this issue.
6. Mr. Mukherjee relied upon the cases reported in AIR 1947 Lah 296 and AIR 1966 Punj 509 (Niader Mal v. Ugar Sain) on that score. It must be stated that the defendant claimed to be a tenant in respect of A and B Schedule properties. Both the Courts below held that the defendant is a tenant of “A” Schedule properties and the defendant has no right in respect of the “B” Schedule properties. In the cases reported in AIR 1947 Lah 296 and AIR 1966 Punj 509 (Niader Mal v. Ugar Sain) it was held, inter alia, that every inconvenience, discomfort or annoyance is not, however, sufficient to constitute a nuisance and the act of a tenant in stopping the other occupants of the premises from using the bath-room and the latrine which they are entitled to use would constitute both nuisance and annoyance within the meaning of S. 13(1)(j) of the Delhi and Ajmer Rent Control Act making such tenant liable to be evicted. In para 6 of the said judgment, it was held that a mere encroachment of a part of the building may in certain circumstances amount to a nuisance. On the basis of this judgment, Mr. Mukherjee contended that here, both the Courts below held that the defendant is a trespasser in respect of the “B” Schedule properties and as such committed nuisance under S. 13(1)(e) of the West Bengal Premises Tenancy Act. In our opinion, in this second appeal, Mr. Mukherjee cannot get a decree by making out a new case which was not put forward in the Courts below.
7. Most important point, however, in this case was that the amendment of the plaint in a suit which was filed within 3 years after the purchase can be allowed or not on the ground on which a decree was not obtainable had the suit been filed within the said period. It appears to us that the amendment of the plaint could not be allowed in view of the Division Bench judgment reported in (1982) 86 Cal WN 841 : (AIR 1982 Cal 407) (Sudha Mukherjee v. Sankar Chatterjee) with which we respectfully agree. Their Lordships of the Division Bench speaking through Anil Kumar Sen, J: held inter alia as follows:
“Where the amendment sought for was solely for the purpose of circumventing the legal bar imposed by sub-sec. (3A) of S. 13 of the West Bengal Premises Tenancy Act, 1956, which well barred the suit on the date it was instituted if the real ground in support of such a suit had been pleaded in the plaint, the amendment should not have been allowed.”
It has been further held that “it is well settled that even in cases of such amendments, the date of original presentation of the plaint continues to remain the date of the suit. In cases of amendments which do not change the nature and character of the suit or do not attract section 21 of the Limitation Act, there is no resultant change of the date of the suit”.
8. Mr. Mukherjee, however, contended that this case was decided in a revisional application preferred against an order of amendment itself and therefore this will not apply in the present case. Their Lordships of the Division Bench considered the effect of the case reported in AIR 1975 SC 1146 (B. Banerjee v. Anita Pan (Smt)). Mr. Mukherjee, however, relied heavily on the judgment of the Supreme Court reported in AIR 1975 SC 1146 (B. Banerjee v. Anita Pan) in particular paragraphs 19 and 28 of the said judgment. In our opinion, the said judgment sought to say about litigation then pending and the date of the amendment and not in respect of the suit filed after the date of amendment of the West Bengal Premises Tenancy Act, 1969. It will appear from the said judgment that the Supreme Court is of the opinion that since the new Cls. (f) and (ff) are included by the Amendment Act in S. 13 of the basic Act and since the suit in question, as they stood, do not seek eviction on those grounds they will have to be dismissed on account of the omnibus inhibition on recovery of possession contained in S. 13 itself. However, as far as possible the Courts must avoid multiplicity of litigation. Therefore the Supreme Court directed the plaintiff to file fresh pleadings setting out their grounds under Cls. (f) and (ff) of sub-sec. (1) on that date.
9. It must be remembered that the Supreme Court has made that observation in respect of the suit filed before the amendment of S. 13(1)(f) and (ff) of the West Bengal Premises Tenancy Act, in order to save the numerous litigations which were filed before the amendment and the Supreme Court judgment saved them from being dismissed. This question was considered by this Hon'ble Court in a Division Bench judgment in (1982) 86 Cal WN 841 : (AIR 1982 Cal 407) (Sudha Mukherjee v. Sankar Chatterjee). Their Lordships of the Division Bench considered the effect of the Supreme Court judgment that the amendment of the plaint by addition of grounds coming under S. 13(1)(ff) is not permissible if the suit has been filed within 3 years from the date of the purchase by the landlord. We respectfully agree with the view expressed by the Division Bench and hold that Mr. Mukherjee's contention on this score that the Court has power to treat a suit to have been instituted at a subsequent date in order to shorten the litigation is not permissible.
10. Mr. Mukherjee further contended that when the amendment was allowed giving costs to the defendant, the defendant waived this objection to such amendment. It is argued by Mr. Mukherjee that due to the waiver of this plea the landlord cannot now argue that the amendment cannot be allowed because according to Mr. Mukherjee this right is for the benefit of the landlord/tenant and the benefit can be waived by the landlord/tenant. In our opinion this is a public policy of the legislation between the landlord and the tenant in order, as the Supreme Court has said, to minimize this speculative suit by the landlord who cannot maintain a suit under S. 13(1)(ff) of the Act and by some transferee landlord who can very well get the advantage of S. 13(1)(ff) of the Act, this plea being against the public policy cannot, in our opinion, be waived by a particular tenant or landlord. It is a right and obligation of the landlord and the tenant alike coming within the mischief of S. 13(1)(ff) read with S. 13(3A) of the West Bengal Premises Tenancy Act. The provision protects the tenant from the eviction suit brought by a transferee landlord within 3 years from the date of purchase and prohibits a suit by a transferee landlord on the ground of S. 13(1)(f) and (ff) of the Act within the said period. The view we take it is not necessary for us to refer to the cases reported in (1910) 12 Cal LJ 556, AIR 1964 Pat 275 and AIR 1933 Mad 410. This according to us covers all the points argued by Mr. Mukherjee on the main aspects of the case. Mr. Mukherjee further argued that Schedule “B” properties were not the subject-matter of the tenancy. From the Exhibit being “Rent Receipts” it is quite clear that the defendant is a tenant in respect of properties mentioned in “A” Schedule to the plaint. It has been held by both the Courts below that “B” Schedule properties are not the subject-matter of the tenancy. Both the Courts below held concurrently that “B” Schedule properties have been trespassed by the defendant. We agree with the finding of both the Courts below that “B” Schedule properties have been trespassed by the tenant-defendant. Therefore the landlord-plaintiff is entitled to the possession in respect of the “B” Schedule properties. “B” Schedule properties are not the subject-matter of the tenancy of the defendant. We are of the opinion, therefore, that except that the defendant has a right of ingress and egress to the staircase and the passage from the road side to the staircase and the staircase leading to the second floor of the defendant to which the defendant has right of ingress and egress common with the others, the defendant is not a tenant in respect of “B” Schedule properties. In that respect, therefore, the appellant is a trespasser in respect of the “B” Schedule properties. The plaintiff is, therefore, in the occupation of western side of the suit premises, namely, one garage, one small mezzanine room and open terrace on the second floor as described in the “B” Schedule properties, subject to the right of the defendant of the ingress and egress through the passage and staircase, leading to the suit premises as described in Schedule “A” property, the defendant is a monthly tenant at the rate of Rs. 675/- per month. We are not, however, going to the merits of the case of the plaintiff in so far as the reasonable requirement is concerned. In view of our finding that the suit under S. 13(1)(ff) is not maintainable on the reason stated hereinbefore and we have not gone into the merits of the contentions that whether the plaintiff has reasonably suitable accommodation or not and/or that the plaintiff does not require the premises for his own use and occupation.
11. In the result, the appeal succeeds in part to the extent that the plaintiff cannot get a decree for recovery of possession in respect of the flat on the second floor of the suit premises as described in Schedule “A” properties. It is further declared that the defendant is a defaulter in payment of 2 month's rents within the period of 1 year being February and March, 1975 on admission but the plaintiff is not entitled to a decree in view of S. 17(4) of the West Bengal Premises Tenancy Act being first default. The plaintiff's suit for eviction in so far as the Schedule “B” properties are concerned is decreed and the defendant also deliver the vacant possession thereof to the plaintiff within 3 months from date subject to the right of ingress and egress through the said Schedule “B” properties as is necessary for the enjoyment of the Schedule “A” properties.
12. The appeal, therefore, succeeds in part to the extent hereinbefore stated.
13. There will be no order as to costs.
Sharma, J.:— I agree.
Appeal partly allowed.
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