The Commissioner of Police, Kolkata vs Sudipta Mukherjee

Jyotirmay Bhattacharya, J.—This second appeal is directed against the judgement and decree dated 22nd December, 2015 passed by the learned Additional District Judge, Fast Track Court, 1st Court, Sealdah in Ejectment Appeal No. 1 of 2014 affirming the judgement and decree dated 21st August, 2008 passed by the learned Civil Judge (Junior Division), Additional Court, Sealdah in Ejectment Suit No. 490 of 2004 at the instance of the defendants/appellants.

Let us now consider the merit of the appeal to find out as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure or not.

Here is the case where we find that an eviction suit was filed by the plaintiff against the defendants on the ground of default in payment of rent as well as on the ground of reasonable requirement. It is stated in the plaint that the Commissioner of Police was inducted as tenant in respect of the suit premises by the plaintiff. The plaintiff requires the suit premises for the reasonable requirement of herself and the members of her family. It is stated by the plaintiff that she has no other reasonable suitable accommodation elsewhere to stay and/or to accommodate the members of her family. She claimed that previously she was staying in a rented accommodation for about eleven years and subsequently she shifted her family to an accommodation provided by her brother-in-law as licensee.

Since the tenancy was created in favour of the Commissioner of Police, the Collector was also impleaded as defendant no. 2 in the said suit by abundant caution. Notice under Section 80 of the Code of Civil Procedure was also served upon the Collector in addition to the notice served under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 upon the defendant no. 1 and the copy thereof was also sent to the Collector.

The defendants appeared in the said suit and contested the same by filing written statement denying the allegations made out by the plaintiff in the plaint. The defendants claimed that relationship of landlord and tenant does not exist between the plaintiff and the defendant no. 1. The defendants prayed for dismissal of the suit for non-joinder of necessary party. They also prayed for dismissal of the suit for non-service of notice under Section 80 of the Civil Procedure Code upon the tenant. Defendants did not categorically deny the ownership of the plaintiff in the suit premises and/or plaintiff�s requirement of the suit premises.

The parties led evidence in support of their respective claims in the suit. The learned Trial Judge after considering the pleadings of the parties and their evidence, ultimately held that relationship of landlord and tenant exists between the parties. Such conclusion was drawn by the learned Trial Judge by relying upon the evidence of the defendant who stated in the cross-examination that rent was collected by the plaintiff from the defendant in respect of the suit premises. Learned Trial Judge, however, found that the defendant was not defaulter in payment of rent as the defendant has complied with the provision contained in Section 17(1) of the said Act. Learned Trial Judge, however, held that the plaintiff reasonably requires the suit premises for her own accommodation and also for accommodating the other members of her family. Learned Trial Judge also held that the plaintiff is the owner of the suit premises and she has no other reasonable alternative suitable accommodation elsewhere. Holding as such, the learned Trial Judge was pleased to pass a decree in favour of the plaintiff.

Challenging the said judgement and decree passed by the learned Trial Judge, the defendants filed an appeal before the learned first Appellate Court. Learned first Appellate Court dismissed the said appeal by affirming the findings of the learned Trial Court.

The instant second appeal is directed against the said appellate decree passed by the learned Appeal Court.

Let us now consider as to how far the learned Appeal Court was justified in passing the impugned judgement and decree in the facts of the present case.

Mr. Banerjee, learned counsel appearing for the appellants submits that since the rent was paid in respect of the suit premises from the Government exchequer, the State of West Bengal should have been impleaded as party in the suit. According to him, the Commissioner of Police being not a body corporate and/or any juristic person cannot enter into contract. He, thus, contended that the tenancy was, in fact, created in favour of the State of West Bengal for the purpose of providing accommodation to the police staff under the Commissioner of Police, Kolkata.

Mr. Banerjee further submitted that service of notice under Section 80 of the Civil Procedure Code upon the Collector by the landlord goes to indicate that the tenancy, in fact, was created in favour of the Government. As such, the courts below ought to have dismissed the suit by holding that the suit is bad for non-joinder of necessary party.

In this context, we have examined the pleadings of the parties and their evidence led in the said suit. No such defence was set up by the defendants in their written statement in the said suit. As such, no such issue was framed by the courts below. Thus, we hold that this is a foreign issue which is sought to be introduced by Mr. Banerjee in course of hearing of this appeal. In our view, since no such dispute was raised by the defendants in the said suit, such foreign issue cannot be raised for the first time in the second appeal as adjudication of disputed question of fact, which was neither raised at the trial stage before the Trial Court nor raised before the first Appellate Court in course of hearing of the first appeal, cannot be raised before this Court for the first time while deciding the second appeal.

Had it been a question of law which could have been decided by the court on the basis of the materials available before the court such pure question of law could have been decided by this Court. But the question which the appellants are now seeking to raise is not a pure question of law and as such, in our view, the appellants cannot raise such question for the first time before this Court, particularly when we find that the privity of contract existed between the plaintiff and the defendant no. 1 and in the eviction suit, the plaintiff and the defendant no. 1 were parties. The witness of the defendant no. 1 also admitted in his evidence that rent was collected from the defendant by the plaintiff in respect of the suit premises. Such evidence of the defendant clearly indicates that relationship of landlord and tenant existed between the plaintiff and the defendant no. 1.

Service of eviction notice upon the defendant no. 1 has not been denied. The court found that eviction notice was duly served upon the defendant no. 1. However, we find that the Collector of the district was joined as defendant no. 2 in the said suit. Notice under Section 80 of the Civil Procedure Code was also served upon the Collector before filing the said suit. In our view, in a simpliciter suit for eviction under the West Bengal Premises Tenancy Act, notice under Section 80 of the Civil Procedure Code upon a tenant is not necessary.

We are also of the view that for maintaining such a suit for eviction, the Collector need not be made a party in the suit, as there was no privity of contract between the plaintiff and the Collector and/or the State. However, for mis-joinder of any party, suit cannot be dismissed under Order 1, Rule 9 of the Civil Procedure Code. Service of notice under Section 80 of the Civil Procedure Code is merely surplusage in the facts of the present case. As such, we do not find any merit in the contention of Mr. Banerjee, particularly in view of the fact that the defendant has neither pleaded nor proved that the tenancy was taken by the State of West Bengal or there was any privity of contract between the plaintiff and the State of West Bengal.

We, thus, find that both the courts below were absolutely justified in passing a decree for eviction against the defendants/appellants in respect of the suit premises as the plaintiff reasonably requires at least one bed room for herself and her husband, one bed room for her elder son, one bed room for her youngest son, one bed room for her mother-in-law, one thakur ghar, one drawing room, one dining room, one guest room, one store room, a space room for servant, a kitchen and bath and privy. The premises where the plaintiff is now staying under her brother-in-law as a licensee therein, cannot be treated as a reasonably suitable alternative accommodation as the possession of a licensee under the licensor is always precarious.

In the facts and circumstances as stated above, we do not find involvement of any substantial question of law in this appeal for which the appeal is required to be admitted for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure. We, thus, decline to admit this appeal. The appeal, thus, stands dismissed.

Re: CAN 3807 of 2016 (Injunction):

Since we have not admitted the appeal under the provision of Order 41, Rule 11 of the Code of Civil Procedure, no further order need be passed on the interim application for injunction. The said application being CAN 3807 of 2016 is, thus, deemed to be disposed of.