Pannalal Dawn vs Akin Bux Molla

S.K. Mukherjea, J.—This appeal is directed against a decree dated March 28, 1963, passed in Ejectment Suit No. 2327 of 1961 by Mr. S.N. Mukherjee, a Judge of the City Civil Court.

The suit was brought by mutwallis of a wakf estate against Pannalal Dawn, the Defendant No. 1, for possession of two shop-rooms. The Commissioner of Wakfs was also made, a Defendant. The Plaintiffs allege that the Defendant No. 1 became a monthly tenant under the Plaintiffs in respect of two shop-rooms on the ground floor of premises No. 4 Madan Street, Calcutta, at a rent of Rs. 160 per month. They maintain that the said tenancy was determined by a notice dated October 27, 1961, duly served through their Advocate calling upon the Defendant No. 1 to deliver up vacant possession of the said rooms on the expiry of the month of November, 1961. The Defendant No. 1 failed to vacate the said premises in compliance with the said notice. The Plaintiffs contend that the said Defendant has wrongfully sublet and/or otherwise transferred a portion of the demised premises to M/s Air Carrying Corporation without the consent in writing of the Plaintiffs after the commencement of the West Bengal Premises Tenancy Act, 1956 and is not, therefore, entitled to any protection under the said Act.

In the written statement the Defendant No. 1 contended that the notice to quit was bad in law and therefore, invalid. He also denied that he had sublet or transferred any portion of the demised premises as alleged by the Plaintiffs. In para. 6 of the written statement he stated his case in these terms:

The fact is that this Defendant is doing agency business in one of the said rooms and the same was duly intimated to the said Plaintiffs through Shri S.P. Bagchi by a letter dated November 2. 1961, written on behalf of this Defendant.

The letter in question was written by the Defendants lawyer to the-Plaintiffs in answer to the notice to quit.

The learned trial Judge found that the notice to quit was valid and was duly served. It was not contended before us that the learned Judge''s finding on that Issue was wrong. The only question, therefore, which has to be decided in this appeal is whether the learned Judge was right in holding that the Defendant No. 1 had sublet or transferred his interest in any portion of the demised premises.

One Habibur Rahaman, one of the Plaintiffs, stated in his evidence that the Defendant No. 1 had arms shop in one of the rooms. The other room was formerly kept closed. Thereafter the Defendant No. 1 let out the other room to a firm carrying on business under the name and style of Sundar Radio. He deposes that the said business is no longer carried on in the said premises and the Defendant No. 1 has let out the room to the Air Carrying Corporation. In that room the Air Carrying runs its business. There is a big weighing machine in that room. There is a signboard outside and a smaller signboard inside. The Air Carrying Corporation has been in occupation, of the room for 2 or 3 years. No notice of subletting was given to the Plaintiffs by the Defendant; No. 1. Habibur stated that it was only after the notice to quit was served on the Defendant No. 1 that he informed the Plaintiffs that he was occupying the room in question as a commission agent of the Air Carrying Corporation and that the room had not been sublet by him. In cross-examination he said that on the signboard of the Air Carrying Corporation the name of the Defendant No. 1 did not appear as agent. He says that the Plaintiffs'' case, namely, that the room has been sublet to the Air Carrying Corporation, is based on the fact that the Air Carrying Corporation carries on its business in that room and displays its signboard outside.

One Sitaram Sukla, who described himself as the legal representative of the Air Carrying Corporation, by which perhaps he meant that he was a law officer, gave evidence at the trial. He said that the Air Carrying Corporation had its head office at Mahatma Gandhi Road and its city office at 4B Madan Street, in the premises in suit. The city office is managed by a son of one of the partners. The Air Carrying Corporation does not pay any rent for the room where the city office is situate but, in terms of an agreement with the Defendant No. 1, pays him a commission of Rs. 330 per month. He probuced two receipts granted by the Defendant No. 1 for commission for the months of December 1962 and January 1963. The commission, he said, was payable under an agreement with Sundar Radio under which Sundar Radio used to pay commission to the Plaintiffs at Rs. 50 per month. The Defendant No. 1, he said, was also a commission agent of Sundar Radio. He was then shown a photograph of the signboard of the Air Carrying Corporation. He said he did not notice the name of the Defendant No. 1 appearing on the signboard. He deposed that goods were booked at the city office of the Air Carrying Corporation. He, however, did not know whether the Defendant No. 1 worked in that office nor did he know whether any account books were available to indicate what business was done by the Defendant No. 1 as commission agent of the Corporation.

The next witness was Shamlal Roy, a photographer, who proved the photograph of the room taken from the street and the relevant negative. His evidence is that the photograph was taken on July 4, 1962.

The next witness who deposed on behalf of the Plaintiffs was Hasim Abdul Halim. He said that he knew the Defendant No. 1 and his arms shop. By the side of the Defendant''s shop there is an office of the Air Carrying Corporation and he often sent goods through the Corporation. He produced a number of bills and consignment notes in support of his evidence that he had booked freight at the city office. These consignment notes are of October, November and December 1957, January and March 1959, November 1961 and January 1962. According to him, they were written by some of the clerks of the Corporation in his presence. He said that he knew the Defendant No. 1. He had never seen him working in the office. The Defendant No. 1 sits and carries on his business in his own arms shop. He also deposed that he saw the signboard of the Air Carrying Corporation but never saw the name of Pannalal Dawn on the signboard.

The Defendant No. 1, Pannalal Dawn, himself gave evidence. He called two witnesses in support of his case--one Tarun Mukherjee, a businessman and Sanat Sarkar, an assistant in the Irrigation Department, Writers'' Buildings. Tarun Mukherjee said that he used to make purchases from the arms shop of the Defendant No. 1 before 1957 when he left for the United Kingdom and also after his return in 1963. He knew the Defendant No. 1 and had seen him sitting in both the rooms, that is to say, in the arms shop as also in the office of the Air Carrying Corporation. He said that he was requested by Pannalal to secure some clients for his arms business as also for the business of the Air Carrying Corporation and in fact, he introduced some customers to the Defendant No. 1 before he left India. He said that on the signboard of the Air Carrying Corporation the name of Pannalal Dawn appeared as agent. He saw the name of Pannalal on the signboard definitely in December 1962. He said he never travelled by any plane of the Air Carrying Corporation nor did he despatch any goods through them. He said that he had introduced customers to the Defendant No. 1 for booking by Air.

The next witness Sanat Sarkar deposed that he was an assistant in the Irrigation Department, Writers'' Building. He knew the Defendant No. 1 through some of his friends who purchased, or repaired guns at his arms shop. He had been to the Defendant''s arms shop in 1958 and again in 1961 and 1962. He said there was a communicating door between the arms shop and the office of the Air Carrying Corporation and that the rooms were not separated by brick wall. He remembered to have seen the Defendant No. 1 in the office of the Air Carrying Corporation. He also saw the name of Pannalal Dawn on the signboard where he was described as agent.

The Defendant in his evidence said that he was one of the proprietors of textile business of Jawharlal Pannalal. He is also the sole proprietor of the arms shop styled as Armoury. He carried on business as a stockist of Syrups. He also carries on business as a commission agent of the Air Carrying Corporation. He tendered a trade licence for the year 1961-62, marked as Ex. C, where there is an endorsement to the effect that he carried on agency business. He said that he carried on all the businesses of which he was the sole proprietor at premises No. 4B Madan Street, that is to say, the premises in suit; he said he took premises No. 4 Madan Street on rent 13 years ago. Since, the inception of the tenancy he has been using the same for carrying on his arms business. Moreover, he was formerly a commission agent of Das Lock and Company which business he carried on in the same premises. At that time he put up a signboard describing himself as Das Lock''s agent. He worked as an agent of Das Lock and Company for three years. Thereafter, he came in contact with Abheram Aria who wanted to carry on business in the northern portion of the demised premises on payment of commission to him. An agreement in writing was then entered into between'' Sundar Radio and the Defendant No. 1. The document in which the agreement is contained was marked as Ex. B/1. The agreement was signed by the Defendant No. 1 Pannalal and by Jawala Prosad Aria. He said that when the business of Sundar Radio was carried on, he used to sit there, secure customers arid supervise whether the customers were being attended to. Sundar Radio, according to him, had carried on business in the premises for 8 or 9 months. Thereafter, Jawala Prosad carried on, at the same premises, the business of the Air Carrying Corporation. This, he said, Jawala Prosad did on the understanding that the Defendant No. 1 would secure customers for the Air Carrying Corporation for which he was to receive commission. Subsequently, letters were exchanged between the parties incorporating the terms which were verbally agreed to. The agreement was tendered and marked as Ex. B. It was signed by Abheram Aria for Jawala Prosad. According to the Defendant No. 1 his duty as commission agent was to secure customers for the Air Carrying Corporation from amongst his friends and acquaintances. He was also to supervise, the work of the staff in the office. Apart from him the office has one clerk and one coolie. Jawala Prosad attends the office only when he is in Calcutta, but for the most part he lives in Gauhati in connection with his business. His business in arms is looked after by his son. The keys of the office of the Air Carrying Corporation are left with him. He confirms that there is a communicating door between the arms shop and the office of the Corporation. The signboard of the Air Carrying Corporation, he said, contained his name where he was described as agent. While the trial was in progress he discovered that his name on the signboard had been scraped off. He denied that he had let out the northern portion of the demised premises to the Air Carrying Corporation. He said that he was carrying on his own business in that portion of the premises as agent of the Corporation. He had his own furniture in the office of the Corporation. His evidence is that he was paid Rs. 330 per month by the Air Carrying Corporation as his commission with effect from August 1962. He deposed that no trade licence was required for the work of a commission agent. He admitted that the trade licence was taken after the suit was brought. He could not find the trade licences for the year� 1956 to 1961 nor was he sure whether those licences bore any reference to his business of commission agency. He said that the office of the Air Carrying Corporation was established at the premises in suit 9 or 10 months after the agreement with Jawala Prosad was entered into. He agreed that he was a tenant in respect of two rooms being rooms Nos. 3 and 4, as would appear from the rent receipts but maintained that in reality there was only one room which was divided into two by improvised partition walls. He admitted that the arms shop and the office of the Air Carrying Corporation had separate electric meters and separate telephones. He said if he did not work for the Air Carrying Corporation for months he would not be entitled to any commission. Abheram Aria, a partner of the Air Carrying Corporation, could testify to the fact that he was actually working for the Corporation. On being asked if he could identify the signatures on the consignment notes, exs. 7 to 7(h), he said he could not. In some cases he remembered the persons, though not their names.

As for documentary evidence the Plaintiffs relied on the photograph, i.e. Ex. B(a), bills arid consignment notes, i.e. exs. 7 to 7(h), the rent receipts, i.e. exs. 8 to 8(d) and the forwarding note of the Air Carrying Corporation, i.e. Ex. 10. The Defendant relied on the agreement dated August 15, 1956, i.e. Ex. B/1 and another agreement dated July 25; 1962, i.e. Ex. B. The Defendant No. 1 also relied on the trade licence for the year 1961-62, i.e. Ex. C. Apart from those documents the Defendant No. 1 relied on certain receipts for commission granted by the Defendant No. 1 to Jawala Prosad Aria being exs. 4, 4(a) and 4(d). On the evidence on record, oral and documentary, it is clear that the Air Carrying Corporation has its city office in the northern portion of the demised premises. T-hat is the evidence of Sitaram Sukla, the law officer of the Air Carrying Corporation. That is also the evidence of the Plaintiff-landlord Habibur Rahaman. There is also the unimpeachable evidence of Hasim Abdul Halim who, in fact, booked freight at, the city office of the Air Carrying Corporation in 1957, in 1959 and in 1961 in support of which he tendered consignment'' notes and bills. The forwarding note, i.e. Ex. 10, also records that the city office of the Air Carrying Corporation was at premises No. 4 Madan Street. The Defendants'' witness Tarun Mukherjee also said that the office of the Air Carrying Corporation was in premises No. 4 Madan Street although he also deposed that he was asked by the Defendant No. 1 to secure customers for his air carrying business. The Defendants other witness Sanat Sarkar also admits that the office of the Corporation is in the demised premises. Moreover, the agreement of July 25, 1962, records that the Air Carrying Corporation is carrying on business at premises No. 4 Madan Street, Calcutta. There Jawala Prosad Aria says:

We are carrying on business at premises No. 4 Madan Street Calcutta.

The photograph of the signboard, which was taken before the suit was filed, also shows that the Air Carrying Corporation was carrying on business in the demised premises. It may be added that neither the name of the Defendant No. 1 nor any indication of his agency business is to be found on the signboard as appears from the photograph. That the Corporation is also in-exclusive possession of a portion of the demised premises is borne out by the fact that the office of the Corporation is situated in a separate room which is divided from the arms shop by some kind of partition wall, improvised it may be and that the Corporation has a separate electric meter, a separate telephone and a separate entrance. Even if there is an inter-communicating door between the arms shop and the office of the Corporation that will not-make the possession or occupation of the Corporation any the less exclusive. The question then arises, in what capacity is the Air Carrying Corporation in occupation of the demised premises? The Defendants case is that the agreement dated August 15, 1956, was varied by the agreement dated July 25, 1962. The agreement of July 25, 1962, expressly confirms that the agreement dated August 15, 1956, will subsist subject to variation made by the latter agreement. As the terms of the former agreement of August 15, 1956, are still subsisting except insofar as those terms have been expressly or impliedly varied by the latter agreement, it will be necessary to consider the terms of the former agreement and determine whether that agreement creates a lease or not. It is true that in that agreement Jawala Prosad Aria, carrying on business under the name and style of Sundar Radio Works, is styled as supplier and the Defendant No. 1 is described as selling agent. The agreement not only does not provide that the selling agent shall sell, but on the contrary it provides that the supplier shall be entitled to sell his goods at premises No. 4 Madan Street. The selling agent is not to be responsible for goods supplied or for cash shortage or for damages to the goods. Moreover, the selling agent is under no duty to maintain any account relating to stock or sale. It is, therefore, clear from the agreement itself that the Defendant No. 1 was under no duty to sell under the agreement. That it never was the intention of the parties that the Defendant should exercise any control or dominion over the goods is amply borne out by the clauses which provide that he will not be liable, for any damage done to the goods, or for any shortage of goods and that he will not be required to maintain any accounts. It is, therefore, a pretended selling agency agreement under which the alleged agent is not required to sell.

The duties cast on the selling agent are also not a little unusual in the context of relationship of principal and agent. The Defendant was to set up and fix at his own cost a partition wall with corrugated sheets between the office of the Armoury and the room set apart for the radio business. Some of the clauses of the agreement are clearly calculated to ensure exclusive occupation of a part of the demised premises, for the business of Sundar Radio. Under the agreement the Defendant No. 1 is also to provide not only storage space for stock of radios and accessories but also to provide furniture to be used for the purpose of the radio business. It is clearly laid down that the Defendant No. 1 is to provide a furnished office at 4B Madan Street, Calcutta. These provisions in the agreement read with the other provision that the supplier will pay the selling agent a fixed monthly commission of Rs. 250 per month for 5 years with opition for renewal for a further period of 2 years at a rate of commission to be increased upto 25 per cent appear to partake of the character of a lease of furnished apartments for a fixed term with provisions for renewal at the lessee''s option at an enhanced rent. Certain additional features of the agreement seem to conclude the matter. Clause 11 of the agreement provides that if there be any change in the proprietorship of either Armoury or Sundar Radio Works the parties hereto shall recognise the change and the agreement shall be binding on their respective successors in office and assignees and no such change shall affect the agreement. Moreover, the agreement provides that the agreement shall remain, binding on the heirs, administrators and assignees of the respective parties. The agreement, therefore, in effect seeks to create a privity of estate in the guise of keeping the agreement in force irrespective of the changes in the constitution of the contracting parties. This is a feature of the agreement which is alien to all notions of contract and particularly of contract where a party relies on the personal ability, skill and qualification of the other contracting party. The agreement appears to be a strange visitor in the accused circle of agency agreements. The learned Judge was fully justified in highlighting these peculiar aspects of the agreement. It is true that in para. 7 of the agreement there is a provision for payment of an extra commission varying with the volume of sale which was never to be less than Rs. 50 per month. There is no evidence that this provision was given effect to. In any event, it is interesting to note that this provision which is the only provision germane to a selling agency agreement and alien to a lease was given a go-by in the later agreement where it was provided that a fixed monthly commission was to be paid irrespective of the quantity of sale.

The second agreement which was of July 25, 1962, states that the agreement of August 15, 1956, will subsist except insofar as it is varied in the manner specified in that agreement. Not only does the agreement commence with the prefatory note that M/s Air Carrying Corporation are carrying on business at premises No. 4 Madan Street, Calcutta, but Clause 2 specifically provides that the said firm will be entitled to do business in that portion of premises No. 4 Madan Street where business is being carried on for the last five years. This presumably means that Jawala Prosad Aria, who was carrying on business under the name and style of Sundar Radio, was to carry on business, may be in co-partnership under the name and style of Air Carrying Corporation in the same premises, It will, therefore, be going against the clear tenor of documentary evidence to contend, as the Defendant Pannalal Dawn did though haltingly in his cross-examination, that it was he and not the Air Carrying Corporation which was carrying on business in the portion of the demised premises in question. Another provision of the agreement is revealing. It says:

You shall be paid a fixed commission of Rs. 330 per month payable within 15 days of the next succeeding month for acting as booking agent, irrespective of the volume and apart from the said remuneration, you shall have ho further and other claim for commission on me or the said Air Carrying Corporation.

This clause is intended to have the effect that even if no booking of freight takes place the Defendant No. 1 will be entitled to a fixed commission of Rs. 330. This is a provision which shows up the document to be unmistakably a lease. Such a provision is certainly odd and even repugnant in the context of an agency agreement. It might be added without comment, because no comment is necessary, that under the agreement the fixed monthly commission of Rs. 330 is payable within 15 days of the next succeeding month, a period of time prescribed under the law of the land for payment of rent by the lessee to the lessor. In our opinion, apart from oral evidence, on a fair construction of the agreement of July 25, 1962, the learned trial Judge was right in coming to the conclusion that the relationship between the parties which is contemplated under the agreement is in reality that of lessor and lessee and not of principal and agent. It is common learning that the description by the parties of their legal relationship is not conclusive on the question of nature of the relationship. The Court has to look into the substance of the transaction and the essence of the agreement and in that context determine the character of the document and the jural relationship which it brings into exitence. The earlier agreement of August 15, 1956, recited in Clause 17 that the agreement was not to be deemed to constitute any partnership or tenancy between the parties. However, if the Court is satisfied that on a proper construction and consideration of the terms of the agreement a tenancy came into existence, the declaration of the parties that it is not a tenancy will be of little consequence.

In any case, it is necessary to remember that the agreement of July 25, 1962 and the Corporation licence, i.e. Ex. C, came into existence after the institution of the suit and were disclosed at a late stage. In our opinion, nothing turns on the municipal trade licence, because even if it mentions the words ''agency business'', it cannot by itself establish that the Defendant No. 1 was carrying on his own business as an agent against the mass of evidence, documentary and oral. Be that as it may, the Defendant has not been able to produce any municipal licence prior to the institution of the suit. The Plaintiffs have fully established that the Air Carrying Corporation and not the Defendant is carrying on business in a portion of the demised premises and that the said Air Carrying Corporation is in exclusive possession of the said portion which is confirmed by the signboard, the separate electric meter, the separate telephone and the provision in the agreement of August 15, 1956, that the room will be divided by a partition so as to set apart a portion of the premises for the radio business. The Plaintiffs have also established, which is also the common case, that the Air Carrying Corporation is paying to the Defendant No. 1 a fixed monthly commission payable on or before the 15th day of the next succeeding month. We cannot hold against the weight of evidence of the photograph that the name of the Defendant No. 1 appeared on the signboard as contended by him and supported by some who gave evidence on his behalf. The Defendant No. 1 has failed to adduce any direct evidence whatsoever of his having had anything to do with the business of the Air Carrying Corporation. He could have if he so desired, called customers whom he had introduced to the Air Carrying Corporation or given evidence of any freight which he had booked or for the booking of which he was responsible. He could have also called any partner or any officer of the Air Carrying Corporation in support of his case that he was a booking agent of the Air Carrying Corporation and was carrying on his own agency business in the demised portion. The fact that the Plaintiffs had called a law officer of the Air Carrying Corporation who gave evidence in a straight-forward manner and confirmed that the Air Carrying Corporation was carrying on business in the said premises and was paying a fixed monthly commission to the Defendant No. 1 does not absolve the Defendant No. 1 from the duty of adducing evidence in that behalf. We are, therefore, of the opinion that the fixed monthly commission paid by Jawala Prosad Aria to the Defendant No. 1 is in reality rent and the relationship between the Defendant No. 1 and Jawala Prosad Aria is that of lessor and lessee in respect of the portion of 4B Madan Street where M/s Air Carrying Corporation has their city office and where they have been carrying on business for some time past.

A point was taken by counsel appearing on behalf of the Defendant No. 1 that the suit is not maintainable because no notice was served on the Commissioner of Wakfs u/s 70(1) of the Bengal Wakf Act, 1934. Reliance was placed on a Bench decision in the case of Benoy Kumar Acharjee v. Ahammad Ali (1942) 75 C.L.J. 33, where it was held that the service of notice u/s 70(1) was mandatory. In that case the Commissioner of Wakfs was not a party to the suit. Here he is and has been duly served with summons. The question, therefore, arises whether having regard to the fact that Commissioner of Wakfs has been made a party to the suit, it is necessary to serve any notice u/s 70(1). The point is covered by a decision of P.B. Mukharji, J., in the The Commissioner of Wakfs Vs. Sm. Ayesa Bibi and Others, , where it was held that in a suit in respect of wakf property in which the Commissioner of Wakfs is himself a party Defendant, notice u/s 70, Sub-section (1), need not be given. Where the Commissioner is a party, notice is in fact given to the Commissioner through the summons which is served on him notifying the filing of the suit and the contents of the plaint. We do not see any reason why we should take a contrary view in the appeal before us. We therefore hold that no notice u/s 70(1) was required to be served. The, learned trial Judge, if we may say so with respect, has dealt with the matter fully and fairly and has delivered an admirable judgment which has commended itself to us by its clarity, force of logic and attention to details. In one respect, however, we regret to say the learned Judge has gone wrong. He has passed a decree with costs against the Defendant No. 1 and the Commissioner of Wakfs. The Commissioner did not enter appearance at the trial nor did he contest the suit. In any case no decree for possession could have been passed against him. Be that as it may, the decree does not prejudice the Commissioner of Wakfs except in the matter of costs. We felt inclined to set aside the decree against the Commissioner, but having regard to the fact that the Commissioner has not preferred any appeal we are unable to set aside the decree. We can, however, in disposing of this appeal, revise the order for costs made by the learned Judge and we propose to do so.

In the result, the judgment and decree of the learned trial Judge are upheld except as regards costs and the appeal is dismissed. The Appellant will pay the costs of this appeal and the costs of the trial in the Court below. The Commissioner of Wakfs will not be liable for any portion of the coats of the trial or of the appeal.

Arun K. Mukherjea, J.

I agree.