Shop Tenant Avoids Eviction As Calcutta HC Rejects Landlord’s Attempt To Switch From West Bengal Premises Tenancy Act To Transfer Of Property Act

The appellant-landlord brought an eviction suit concerning a shoproom in Bankra, Howrah, alleging rent default, damage to the premises, and reasonable requirement.

The tenant applied under Sections 17(2) and 17(2A) of the West Bengal Premises Tenancy Act, 1956.

The Trial Court determined that the tenant relationship existed, fixed the rent and arrears, and directed payment in instalments; the landlord did not challenge that order.

The Trial Court later decreed eviction, treating the tenancy as governed by the Transfer of Property Act, 1882. On the tenant’s appeal, the First Appellate Court set aside the decree.

Section 105(1) of the Code of Civil Procedure permits an error, defect, or irregularity in an interlocutory order that affects the decision of the case to be raised as an objection in an appeal from the decree.

In Satyadhyan Ghosal v. Deorajin Debi, 1960 SCC OnLine SC 15, the Supreme Court explained that an interlocutory decision may, in appropriate circumstances, be challenged in an appeal from the final decree, even if no separate appeal was taken.

The court also considered the West Bengal Premises Tenancy Act, 1956, including Sections 17(2) and 17(2A), under which the tenant’s application had been determined, and the Transfer of Property Act, 1882, which the landlord argued governed the tenancy.

On the facts, the court treated the landlord’s pleadings and conduct—including his description of the defendant as a monthly premises tenant and his failure to challenge the order under the Tenancy Act—as material to whether he could pursue the contrary position in the second appeal.

The court noted that the landlord had consistently described the defendant in the eviction notice and plaint as a monthly premises tenant and had sought termination of the landlord–tenant relationship.

The tenant’s application under Sections 17(2) and 17(2A) had resulted in an order determining the tenancy relationship and arrears; the landlord did not challenge that order and accepted the tenant’s compliance with it.

Although Satyadhyan Ghosal recognises that certain interlocutory orders may be challenged in an appeal from the final decree, the court concluded that the landlord could not, in these circumstances, rely on the Transfer of Property Act after having proceeded on the basis of a premises tenancy and accepted the benefit of the earlier order.

It therefore found no basis to interfere with the First Appellate Court’s decision.

The court dismissed the second appeal, SA 114 of 2022, without costs.