Sett Shome and Company vs Surendra Nath Ghosh and Company

P.N. Mookerjee, J.—This Rule was obtained by the Petitioner firm, which was the Defendant in the instant proceeding before the Small Cause Court, Calcutta. The proceeding was brought by the Plaintiff firm in the shape of a suit for ejectment u/s 41 (chap. VII) of the Presidency Small Cause Courts Act. The ejectment was sought for in respect of godown No. D-32, Jagannath Ghat Warehouse, Lohapatti. The Plaintiff''s case was that the Defendant was the tenant under the Plaintiff for the said premises at a monthly rent of Rs. 48-1-0 payable according to the Bengali calendar month; that the disputed premises belonged to the Commissioners for the Port of Calcutta; that the Defendant''s tenancy had been duly determined by an appropriate notice, dated Jaistha 4, 1354 B.S asking the Defendant to vacate on the expiry of the last date of Jaistha, 1354 B.S., but the Defendant not having complied with the said notice the instant suit or proceeding was brought.

The suit was contested by the Defendant and on its behalf the following points, inter alia, were urged; that the Plaintiff had failed to prove that the notice to quit had actually been served on the Defendant; that the Plaintiff had waived notice by accepting rent after the expiry of the same; that the disputed premises were not excluded from the provisions of the West Bengal Premises Tenancy Act, 1956, and accordingly the Defendant was entitled to protection under the Act and, no ground under the said Act for depriving the Defendant of that protection having been pleaded, the Plaintiff should be non-suited.

On the question of service of the notice to quit the Court below has come to a positive finding that it was duly served. That finding has to be accepted in this Revision.

On the question of applicability of the West Bengal Premises Tenancy Act, 1956, to the instant case the parties are at variance. According to the Plaintiff the disputed premises will be outside the scope of the said Act in view of the second proviso to Section 1(3) of the the same. That proviso runs as follows:

Provided further that this Act shall not apply to any premises belonging to or taken on lease by the Government or any local authority or requisitioned by the Government.

There is no dispute before us that the Commissioners for the Port of Calcutta would come within the description of ''local authority'' in view of the definition of the same in the Bengal General Clauses Act which, obviously, applies to the instant case. The contention of the Defendant, however, is that the exclusion contemplated under the above proviso is only in regard to tenancies under the local authority in question. In support of this view, reference was made to an unreported decision of J.P. Mitter, J., as he then was, in Civil Rule No. 1202 of 1960, and also to the decision of the Bombay High Court in the case of Laxmipat Singhania Vs. Larsen and Toubro Ltd., . There might have been something to be said in favour of the above view but for the Supreme Court''s decision in the case of Bhatia Co-operative Housing Society Ltd. Vs. D.C. Patel, . Indeed, the learned single Judge, Chatterjee, J., when the matter appeared before him, felt some doubt on the point and referred the matter to a Division Bench and that is why it is now before us.

The above decision of the Supreme Court on an analogous statute and an analogous provision make it clear that the exemption made by that provision attaches to the premises and, in view of this authoritative exposition of the law on a statutory provision, substantially similarly worded, we are bound to hold that the instant premises would be excluded from the operation of the West Bengal premises Tenancy Act, 1956. Upon that view the Petitioner''s objection on the point must be deemed to have been rightly overruled by the learned trial Judge.

The special Act being thus out of the way the proceeding has to be decided under the general law, namely, the Transfer of Property Act, and the question of waiver also has, accordingly, to be judged under and in the light of the said law. The relevant section then would be Section 113 of the Transfer of Property Act.

It is not disputed here that rents were deposited by the Defendants with the Rent Controller and were withdrawn by the Plaintiffs, at least for sometime after the expiry of the notice of ejectment. The learned trial Judge has held that this was under a mistake, and upon that ground the Defendant''s plea of waiver has been overruled.

On this question of mistake, however, there does not appear to be either sufficient pleadings or sufficient evidence before the Court below. If it was a case governed by the West Bengal Premises Tenancy Act, the withdrawal of rents in question would not by itself have amounted to waiver of the notice to quit. If, however, the matter has to be decided under the Transfer of Property Act, the question of waiver has to be judged on a different footing. Prima facie, acceptance of rent which must be the consequence of such withdrawal would lead to an inference of waiver of the notice to quit. This, however, can be rebutted by showing that there was some mistake or some other valid ground which would relieve the Plaintiff of the consequences of such withdrawal as waiver.

Mr. Mukherjee in opposing the above contention of the Defendant argued that, when a suit has been brought, withdrawal of rents must be judged on a different footing, and he referred us in this connection to the express statutory provision u/s 112 of the Transfer of Property Act, namely, the second proviso to the said section.

In our opinion, however, absence of such a proviso in Section 113 may well lead to a different inference or conclusion, but we will express no final opinion on these points as we are inclined to send down the matter to the Court below for full consideration of the question of waiver on the materials already on record, and such further materials as the parties might choose to produce in support of their respective cases on the point and, in the light of the entire law, which will be applicable to the same and relevant for consideration.

In the above view, while affirming the decision of the learned trial Judge to the extent that the Defendant is not entitled to claim protection under the West Bengal Premises Tenancy Act, 1956, we would make this Rule absolute, set aside his final order of ejectment and send the matter back to him for a fresh consideration of the question of waiver of the notice of ejectment in accordance with law in the light of the observations made in this judgment.

There will be no order as to costs.

A.K. Dutt, J.

I agree.