IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Original Side
Present :
THE HON'BLE MR. JUSTICE BISWANATH SOMADDER
AND
THE HON'BLE MR. JUSTICE SANKAR ACHARYYA G.A. No. 887 of 2017
with
APD No. 310 of 2016
C.S. No. 221 of 2013
Marco Polo Restaurant Pvt. Ltd ................. Appellant
-Vs.- Amit Tiwari & Others .............. Respondents For the Appellant : Mr. Hirak Kumar Mitra, Senior Advocate, with
Mrs. Suchishmita Chatterjee(Ghosh)
Mr. Kamalesh Bhattacharya
Mr. Aninda Bhattacharya …..Advocates
For the Respondents : Mr. Jishnu Saha, Senior Advocate, with
Mr. Srenik Singhvi
Ms. Sananda Ganguli
Ms. Srinanda Bose
Mr. Shubradeep Roy
Mr. Ishan Saha ……Advocates
Heard on : 22.03.2017, 03.04.2017, 05.06.2017, 12.06.2017,
21.06.2017, 03.07.2017, 05.07.2017, 10.07.2017,
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12.07.2017, 17.07.2017, 26.07.2017, 27.07.2017,
28.07.2017, 07.08.2017, 08.08.2017 & 10.08.2017.
Judgement on : 23.08.2017. The Court :
Moot question for consideration in the instant Letters Patent Appeal is whether the summary judgement of eviction of tenant under Chapter XIIIA of the Original Side Rules and decree dated 12thApril, 2016 passed by the learned Single Judge is sustainable or not. Ancillary question is whether the appellant / defendant has substantial defence for an arguable case in case of trial in the suit. Plaintiffs filed C.S. No. 221 of 2013. In that suit they filed G.A. 2205 of 2013 for passing of a final judgement of eviction of defendant in favour of plaintiffs under Chapter XIIIA of the Original Side Rules as they believed that the defendant had no defence against the plaint case.
The suit property is 2731 square feet in the ground floor on the northwest side of a building known as "Anuj Chamber" situated at 24, Park Street, Kolkata. It belongs to Magma Leasing Limited which has been renamed as Magma Fincorp Limited. Magma leased out the suit property to twenty Trusts by virtue of twenty registered deeds of lease on two different dates. The Trusts inducted the defendant in the suit property as tenant at a monthly rent of Rs.1,50,000/- which was subsequently enhanced to Rs.1,98,375/- per month. The suit property still remains undivided. These facts are undisputed. The defendant took the defence that it has been occupying the suit property under twenty separate tenancies created by twenty Trusts. What is the effect of such defence? If there are twenty tenancies, monthly rent for each tenancy will be less than Rs.10,000/- and the suit for eviction will be governed by the provision of The West Bengal Premises Tenancy Act, 1997 and consequently, the notice to quit under section 106 of the Transfer of Property Act will be improper and the ordinary original civil jurisdiction of this High Court to entertain the suit shall be ousted.
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Is it a substantial defence for going to trial or a 'no defence' for passing of a final judgement in favour of the plaintiffs?
Although an inadequately stamped and unregistered paper was prepared by the parties at the time of creation of tenancy, the said paper is not admissible in evidence for any purpose whatsoever. As such, proving the fact of creation of tenancy depends upon oral evidence as well as circumstantial evidence, which also require trial. This matter also involves intricate question of law.
Creation of tenancy forms a lease. Lease is transfer of right and possession in immovable property against consideration. Lease has been defined under section 105 of the Transfer of Property Act, 1882 as -
"105. Lease defined. - A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
Lessor, lessee, premium and rent defined. - The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent". As such, it squarely attracts the definition of 'transfer of property', which has been defined in section 5 of the Transfer of Property Act, 1882. Such definition is as follows:-
"5. "Transfer of property" defined. - In the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more
other living persons, or to himself, or to himself and one or
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more other living persons; and "to transfer property" is to perform such act.
In this section "living person" includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals." [Emphasis supplied by us].
On a plain reading of the definition of 'transfer of property' we find that in case of a transfer of property, the transferor shall be a singular person or an entity but a transferee may either be singular or plural. As such, it may not be ruled out that though multiple persons, as transferors, can enter into transaction(s) of transfer of property by a single document or agreement, such transfer of property may be treated as separate transfers by each of the transferors. In the instant case, whether a single tenancy was created by twenty different Trusts or they created twenty separate tenancies in favour of the defendant is an important triable issue of fact as well as law, which cannot be decided in a Chapter XIIIA proceeding.
Interestingly, in the impugned judgement, the learned Single Judge has not come to any clear finding that the defendant has no good defence to the claim of the plaintiffs on merit or discloses such facts as may be deemed sufficient to entitle him to defend. However, the learned Judge has been pleased to adjudicate on the disputed questions on merit by determining preponderance of probability, which could have been done only after a full-fledged trial of the suit. Clear finding that a defendant has no defence to the plaintiff's claim is sine qua non for pronouncement of a judgement in favour of a plaintiff in a summary procedure under Chapter XIIIA of the Original Side Rules following the ratio of a recent judgement rendered by this Court on 13.06.2017 in the case of W. Newman & Company Limited vs. Apollo Zipper India Limited (APD No.510 of 2015).
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In the light of our observations made in the foregoing paragraphs, we have no hesitation to hold that in C.S. 221 of 2013 the appellant / defendant has a good defence with an arguable case made out for trial. Findings of the learned Single Judge made in the impugned judgement - contrary to what has been observed by us hereinbefore - are not approved. Consequently, the impugned judgement and decree under Chapter XIIIA of the Original Side Rules are liable to be set aside and therefore, set aside accordingly.
Before concluding, we like to mention that learned senior counsel for both the parties referred to several citations which may have some effect in a judgement after conclusion of a full trial, but the same cannot have any effect in a summary procedure under Chapter XIIIA of the Original Side Rules.
This appeal is accordingly allowed. C.S. 221 of 2013 shall be placed before the Court having determination for its disposal after full trial in accordance with law. G.A. No. 2205 of 2013 is dismissed. Since we have not considered the application for amendment of the cause title of the memorandum of appeal (being G.A. No. 887 of 2017) on its merit, the same is disposed of with liberty to the applicants to take out a fresh application seeking amendment of the cause title of the plaint for consideration of the same before the learned Single Judge on its merit.
No order as to costs.
Urgent photostat certified copy of this judgement and order, if applied for, be supplied to the parties on priority basis.
(SANKAR ACHARYYA, J.) (BISWANATH SOMADDER, J.)
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