A tenant’s heir’s five-year protection in a commercial tenancy depends on proof of dependency.

The plaintiff’s suit sought possession of a commercial shop room from the defendants, treating them as trespassers.

The room had been let to the first defendant’s mother, Rani Agarwal, who carried on an electrical business there with the defendants. She died on 27 September 2019; the plaintiff withdrew an earlier eviction suit in February 2021 and instituted the present suit in 2021.

The first defendant, her son, contended that he was entitled to the five-year protection under Section 2(g) of the West Bengal Premises Tenancy Act, 1997 (“1997 Act”), and that Section 44 barred the High Court’s jurisdiction. The plaintiff disputed his entitlement and defended its valuation of the suit as one for possession from trespassers. The defendants applied under Order VII Rule 11 CPC to reject the plaint and dismiss the suit.

1. Whether the first defendant was entitled to protection under Section 2(g) of the 1997 Act.

2. Whether the plaintiff’s valuation was palpably absurd or inflated to attract the High Court’s jurisdiction.

3. Whether the suit, concerning premises used for commercial purposes and valued above the specified threshold, was required to be framed as a commercial suit.

On an application under Order VII Rule 11 CPC, the court considers the plaint’s averments and documents annexed to it, assumes the pleaded facts to be true, and does not decide the defence on its merits.

Section 2(g) of the 1997 Act provides a five-year period of protection to qualifying legal heirs of a deceased tenant; the provision applies to non-residential tenancies mutatis mutandis.

The court considered Prasun Chakraborty v. Smt. Indira Jaiswal, which identified residence with and dependence on the deceased tenant as conditions in the context of residential tenancy, and observed that those conditions could not simply be transposed to a commercial tenancy.

It also considered Nasima Naqi v. Todi Tea Company Ltd., Ratna Bose @ Basu v. Jharna Mullick, and Rajesh Mitra @ Rajesh Kumar Mitra v. Karnani Properties Ltd. concerning the status and statutory protection of a deceased tenant’s legal heirs.

For the commercial-suit question, the court referred to Ambalal Sarabhai Enterprise Ltd. v. K.S. Infraspace LLP and T.E. Thomson & Co. Ltd. v. Swarnalata Chopra in considering the commercial use and letting purpose of the premises.

The plaint itself alleged that the first defendant carried on business with his mother from the shop room during her lifetime. Given that the tenancy was commercial, the court considered that the residential-tenancy requirement of ordinary residence could not apply in the same way; whether the first defendant was dependent on his mother required evidence and could not be determined on the plaint alone.

The court therefore could not conclusively treat him as either protected or a trespasser when the suit was filed within five years of the tenant’s death. That uncertainty also prevented a final determination, at the demurrer stage, that the suit had been correctly valued and framed as one against a trespasser.

Although the commercial use and valuation raised a further question about the Commercial Courts Act, the court noted that it could be argued the dispute arose from statutory protection rather than a tenancy agreement, and did not decide the point conclusively.

It disposed of the application by relegating all issues raised to trial; the plaint was not rejected and the suit was not dismissed.