Full Judgment Text
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CASE NO.:
Appeal (civil) 2380 of 2001
PETITIONER:
PABITRA KUMAR ROY & ANR.
RESPONDENT:
ALITA D’ SOUZA
DATE OF JUDGMENT: 27/09/2006
BENCH:
A.K. Mathur & Altamas Kabir
JUDGMENT:
J U D G M E N T
ALTAMAS KABIR, J.,
The appeal raises an interesting question of law relating
to the interpretation of Sub-section (2) of Section 3 of the West
Bengal Premises Tenancy Act, 1956 (hereinafter referred to as
’the 1956 Act’) which does not appear to have been considered
earlier for its full scope and effect. The question relates to the
applicability of Sub-section (2) of Section 3 of the 1956 Act to
leases which were executed for periods of over twenty years
but containing a clause allowing prior determination at the
instance of either the lessor or the lessee. Prior to 1965, the
said Section was comprised only of one Section which is now
numbered as Sub-section (1). Sub-section (2) was added by
Amending Act XXIX of 1965. Since we shall be considering
the provisions of Section 3 in this appeal, at some length, the
same as it stands, after amendment, is reproduced
hereinbelow for reference:-
"3. Certain provisions of the Act not to
apply to certain leases.\027(1) The
provisions relating to rent and the
provisions of sections 31 and 36 shall
apply to any premises held under a lease
for residential purpose of the lessee
himself and registered under the Indian
Registration Act, 1908, where--
(a) such lease has been entered into
on or after the 1st December
1948, and
(b) such lease is for a period not
more than 20 years, and save
as aforesaid nothing in this Act
shall apply to any premises held
under a lease for a period of not
less than 15 years.
(2) Notwithstanding anything to
the contrary in sub-section (1) but
subject to sub-section (3) of section 1,
this Act shall apply to all premises held
under a lease which has been entered
into after the commencement of the West
Bengal Premises Tenancy (Amendment)
Ordinance, 1965:
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Provided that if any such lease is for
a period of not less than 20 years and the
period limited by such lease is not
expressed to be terminable before its
expiration at the option either of the
landlord or of the tenant, nothing in this
Act, other than the provisions relating to
rent and the provisions of sections 31
and 36, shall apply to any premises held
under such lease."
As will appear from the facts involved in this appeal, by
a registered deed of lease dated 13th January, 1969, the
predecessor-in-interest of the appellants let out the ground
floor flat with one garage, measuring 1200 sq.ft., in premises
No.29/1, Bondel Road, Calcutta \026700019, to the respondent
on a rental of Rs.450/-per month. The lease commenced
with effect from 1st January, 1969, and was for a period of 21
years. The lease deed contained a clause which permitted the
parties to terminate the lease prior to its expiry with notice
from either side.
On 29th September, 1972, when the lease was subsisting,
the lessor served a notice determining the lease under Section
111 (g) of the Transfer of Property Act, 1882. The lessee was
asked to quit and vacate and deliver possession to the lessor
on the expiry of the notice period. Inasmuch as, the lessee did
not vacate the premises, the lessor filed a suit, being Title Suit
No.3/1973, for eviction of the lessee from the suit premises
and for recovery of arrear rents and damages. The said suit
was decreed by the 2nd Subordinate Judge at Alipore under
Section 111 of the Transfer of Property Act, 1882, on the
ground of default. However the lessee made an application for
protection under Section 114 of the Transfer of Property Act,
1882, and on payment of the arrear rents, he was entitled to
retain his possession of the suit premises.
Subsequently, on completion of the period of 21 years
reserved in the lease deed, in 1990, the lessor, who is
represented by the appellants herein, called upon the lessee
(the respondent herein) to hand over peaceful and vacant
possession of the suit premises. On the failure of the
respondent to do so, the lessor filed another suit, being Title
Suit No.71/1990, in the court of the Second Munsif, Alipore,
for ejectment. In his written statement the respondent took a
stand that the suit was not maintainable since the
respondent was a tenant protected under the provisions of the
1956 Act. The Trial Court by its judgment and decree dated
29th June, 1996, negated the defence taken by the respondent
herein that she had been inducted as a monthly tenant and
decreed the suit upon holding that the respondent had failed
to establish her claim of monthly tenancy.
Apart from the above, the trial court also took note of the
fact that the earlier suit had been filed under the provisions of
the Transfer of Property Act, 1882, and at no point of time
had the respondent taken the plea that her tenancy was
governed by the provisions of the 1956 Act. The trial court
took note of the fact that, on the other hand, the respondent
had herself obtained relief against eviction under Section 114
of the Transfer of Property Act, 1882.
On the said two grounds, the trial court decreed the suit
for eviction against the respondent herein.
The respondent preferred an appeal against the said
judgment and decree of the trial court, being Title Appeal No.
246/1996. The first appellate court also rejected the
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respondent’s claim of having been inducted as a monthly
tenant and affirmed the judgment of the trial court by holding
that the decision in Title Suit No.3/1973 attracted the
provisions of Section 11 of the Civil Procedure Code, 1908,
relating to the applicability of the Transfer of Property Act to
the leasehold premises and held further that the said
question could not be reopened. It was also held by the 1st
appellate court that the tenancy created by the deed of lease
dated 13th January, 1969 would not be governed by the 1956
Act in view of the provisions of Section 3 (2) thereof. In
arriving at such conclusion, the 1st appellate court referred to
and relied upon the decision of this Court in Savita Dey vs.
Nageswar Majumdar and Anr., reported in AIR 1996 SC 272.
Aggrieved by the said order, the respondent preferred a
second appeal before the Calcutta High Court which was
numbered as Second Appeal No. 595/1997. By judgment
and order dated 10th September, 1999, the High Court
allowed the second appeal upon reversing the finding of the
courts below regarding the applicability of the 1956 Act to
the deed of lease executed by the lessor on 13th January,
1969. The High Court also disagreed with the finding that the
decision in the earlier suit (T.S. No.3/1973) operated as res
judicata as far as the plea of protection under the 1956 Act
is concerned.
This appeal has been preferred against the said judgment
of reversal of the Calcutta High Court.
Appearing in support of the appeal, Mr. P.S. Mishra,
Senior Advocate, reiterated the stand of the appellant before
the courts below and submitted that the defendant-respondent
was precluded by the principle of res judicata from contending
that her tenancy was protected under the provisions of the
1956 Act. He urged that since the respondent had obtained
the benefit of Section 114 of the Transfer of Property Act in the
earlier suit, she was estopped from raising a defence in the
later suit that her tenancy was protected under the proviso to
Sub-section (2) of Section 3 of the 1956 Act.
It was also contended that apart from the question of res
judicata, the High Court had erroneously reversed the findings
of the courts below regarding the applicability of the 1956 Act
to the tenancy created by the lessee having regard to the
clause which entitled both the lessor and the lessee to
terminate the lease during its subsistence. It was submitted
that since the lease was for a fixed period of twenty one years
and was allowed to run for the full length of its term and the
respondent remained in possession of the demised premises
throughout the period of lease, the High Court had erred in
holding that such clause brought the lease within the
protection of the 1956 Act.
Mr. Mishra submitted that the decision of this Court in
Savita Dey vs. Nageswar Majumdar and Anr.(supra), fully
supported the case of the appellant and the High Court had
erroneously reversed the judgments of the courts below.
The application of the principles of res judicata and
estoppel was denied by Mr. Rana Mukherjee, learned advocate,
appearing for the respondent. According to him, the
respondent was not precluded from claiming that the lease
granted in her favour was protected under Section 3 (2) of the
1956 Act, merely because the provisions of Section 114 of the
Transfer of Property Act had been invoked in the earlier suit.
It was contended that the object of Section 114 of the Transfer
of Property Act, 1882, was similar to the object of Section 17
(4) of the 1956 Act and it was immaterial which of the two
provisions was invoked in a given case and, in any event, the
question was a pure question of law to which the rule of res
judicata would not apply as was held by this Court in
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Mathura Prasad Bajoo Jaiswal and Ors. vs. Dossibai N.B.
Jeejeebhoy, (1970) 1 SCC 613.
Mr. Mukherjee submitted that the language of Section
3(2) of the 1956 Act made it clear that on account of the prior
determination clause the lessee enjoyed the protection of the
1956 Act. It was urged that the lease had, in fact, been
determined during its subsistence by a notice issued by the
appellants on 29th September, 1972, followed by a suit for
eviction on the basis thereof. The exercise of the option of
prior determination brought the lease within the ambit and
protection of the 1956 Act. It was not, therefore, a case of
uninterrupted continuance of the lease for a fixed period of 21
years on account of the break that had been effected by the
determination of the lease within three years from the date of
its execution. There was, therefore, no error in the High
Court’s finding that on account of the clause relating to prior
determination, the lease would be governed by the provisions
of the 1956 Act notwithstanding the fact that the earlier suit
had been filed and conducted under the provisions of the
Transfer of Property Act.
On a construction of the provisions of Sub-section (2) of
Section 3 of the 1956 Act, we are unable to subscribe to the
view expressed by the High Court. The intention of the
Legislature in amending Section 3 appears to have been to
prevent landlords from using long term leases as a camouflage
for excluding them from the protection of the 1956 Act and yet
retaining the right of prior determination. Sub-section (2)
appears to have been enacted to prevent such abuse,
inasmuch as, once the lease was determined before the fixed
period, it attracted the proviso thereof.
This aspect of the matter was noticed by a Division
Bench of the Calcutta High Court in Mahindra & Mahindra
Ltd. vs. Kohinoor Debi, 93 C.W.N. Page 773, while considering
the applicability of Sub-section (2) of Section 3 of the 1956 Act
to a lease governed by Sub-section (1) thereof and it was
observed therein as follows :-
"A lease for, say, 21 years would not cease to
be, but would remain, such a lease in the eye
of law even if the lessee has been given an
option to terminate it earlier. If a lease for a
fixed term with the right or option for removal
in favour of the lessee remains a lease for that
fixed term only, until the option is exercised, a
lease for a fixed term with the right or option
in favour of the lessee of earlier termination
should also remain a lease for a period fixed,
as the option in each case creates, enlarges,
limits or extinguishes no right, title or interest,
until exercised."
Although, ultimately the matter was decided on other
considerations, the aforesaid exposition appears to us to be a
correct appreciation of the law.
A somewhat similar question came up for consideration
before this Court in Savita Dey vs. Nageswar Majumdar and
Anr. (supra) which had been cited before the High Court.
While considering the said decision the High Court merely
observed that in the said case what had been decided was that
the lease for a fixed period of twenty one years was not
governed by Section 3(2) of the 1956 Act having been entered
into prior to the enforcement of the amendment made to the
provision. The High Court did not take into consideration the
decision relating to the precariousness of a tenure which was
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terminable prior to its full duration and the observation that
such suggested precariousness of the tenure did not arise in
the facts of the case because the lessee/tenant had fully
enjoyed the period of lease of twenty years, which is also the
case in the instant appeal. Although, in the instant case, the
tenancy was terminated by notice during the fixed period of
lease, the lessee continued to occupy the demised premises
without interruption for the full period of twenty one years.
The decision in Savita Dey’s case makes the position
clear that the mere inclusion of a clause for prior
determination of a lease, which is otherwise for a fixed period
of more than twenty years, will not ipso facto bring it within
the exception contemplated in the proviso to Sub-section (2) of
Section 3 of the 1956 Act. The inclusion of such a clause may
be taken by the tenant as a defence in the event the option
under the said clause is exercised. Such a defence was not set
up by the lessee in the earlier suit when it was available to her
and the same is not available to her after the lapse of the fixed
period of the lease.
As was indicated by the Calcutta High Court in the
Mahindra and Mahindra case (supra) a lease for a fixed period
does not cease to be so by the inclusion of a clause entitling
either the lessor or the lessee to determine the lease prior to
its expiry, unless such option is actually exercised.
In the impugned judgment under appeal, the High Court
went wrong in holding that it had been found that the lease in
question was governed by Section 3(2) of the 1956 Act. To the
contrary, both the trial Court and the 1st Appellate Court held
that the deed of lease was not governed by the provisions of
the 1956 Act under Section 3(2) and such finding was reversed
by the High Court on a misapplication of the decision in Savita
Dey’s case.
The law is clear that lease deeds for periods of twenty
years or more would stand excluded from the operation of the
1956 Act except in matters relating to Sections 31 and 36
thereof, unless the same were terminable before their
expiration at the option either of the landlord or of the tenant.
In other words, if such a lease is terminated before its fixed
period expired, the proviso to Section 3(2) would be attracted
as a defence against eviction. If, however, the lease was
allowed to run its full course, both the lease and the
conditions contained therein would come to an end and would
cease to be operative and the clause for prior determination
would no longer be available as a defence against eviction.
The appeal must also be allowed on the question of
estoppel. Having submitted to the jurisdiction of the Court
under the Transfer of Property Act and having obtained relief
thereunder, the respondent cannot in the present suit claim
protection under the provisions of the West Bengal Premises
Tenancy Act, 1956 to which she is not, in any event, entitled,
in terms of the lease deed dated 13th January, 1969.
The appeal is accordingly allowed. The judgment and
decree of the High Court is set aside and that of the trial Court
is restored. The respondent is granted time till 31st December,
2006, to vacate the premises and make over peaceful
possession thereof to the appellants subject to filing of the
usual affidavit within fifteen days.