The plaintiff filed this suit for eviction of the defendant No.1, Howrah Oil Mills Ltd. on inter alia grounds of default and illegal subletting. One Benimadhab Mehrotra, proprietor of Mehrotra Industries, has been added as defendant No.2 on his own application.
The defendant No.1 has not filed any written statement to contest the suit. The suit is being contested by the defendant No.2. The defendant No.2 has contended that the suit is collusive and the defendant No.1 has deliberately not filed any written statement to contest the suit.
Refuting the allegation of illegal sub-letting, the defendant No.2 has alleged that the premises in question has been sub-let by the defendant No.1 in favour of the defendant No.2 with the consent and approval of the plaintiff.
Mr. Sabyasachi Chowdhury appearing on behalf of the defendant No.2 submitted that the defendant No.2 was already a tenant under the plaintiff in respect of a part of premises No.33, 34 and 34/1 Bonbehari Bose Road, Howrah in 1969.
By a tripartite agreement as contained in a letter dated 22nd November, 1971, the defendant No.2 became a tenant under the defendant No.1 with the consent of the plaintiff, in respect of the rest of the premises.
Mr. Chowdhury submitted that this suit was collusive. In reply to question 64 the witness of the plaintiff Mr. Jagadish Prosad Bagri had admitted that the plaintiff and the defendant No.1 were under the control and management of Jatias.
In 1979, there was a change of management from the Jatias to the Bagris. The Bagris never demanded any rent from the defendant No.1 which was under lock out, till the present management took over in 1979 as admitted by Mr. Bagri in reply to Question No.68.
Mr. Chowdhury argued and rightly that the denial by Mr. Bagri of the suggestion that the letter dated 22nd November, 1971 was with consent and approval of Howrah Flour Mills, is of no consequence, since the Bagris became associated with the plaintiff only after 1980. Mr. Bagri has, in reply to question 61, admitted that his knowledge of incidents prior to 1981 is only from contemporaneous records.
Mr. Chowdhury pointed out and rightly that the case of the defendant No.2 that the plaintiff and the defendant No.1 were under the common management of the Jatias has been admitted and established.
Mr. Chowdhury pointed out that the document being the tripartite agreement dated 22nd November, 1971 was an exhibit in an earlier suit filed before the Assistant District Judge being Title Suit No.45 of 1981. In the judgment passed in the said Title Suit No.45 of 1981, the learned judge has recorded that at the time of peremptory hearing of the suit, the plaintiff’s document had been marked as Exhibits 1, 2, 2A and 3 upon proof, at the time of deposition of the plaintiff’s witness No.1.
Mr. Chowdhury pointed out that there was reference to the letter dated 22nd November, 1971 in the judgment in the said Title Suit No.45 of 1981, the relevant part whereof is set out hereinbelow:
'The plaintiff also took the tenancy under defendant no.2 of his some portion as a sub-tenant inside some holdings by a letter dt.22.11.71 with the consent and approval of the defendant no.1 in terms of the condition as recorded in a letter dated 22.11.71 issued by the added defendant no.2 to the plaintiff duly countersigned by the defendant no.1. Thereafter, in the said letter dt. 22.11.71 there was a condition to sink a tube well ……….'
Mr. Chowdhury argued that the tripartite settlement not only formed part of the exhibits of an earlier suit between the same parties, the witness of the defendant No.2 had also proved the same and identified each of the signatures in the document.
Mr. Chowdhury submitted that the tripartite agreement had not only been proved by way of primary evidence under Section 62 of the Evidence Act, but also there was a presumption as to the genuineness of the same which constituted part of the exhibits in earlier proceedings. Mr. Chowdhury pointed out that the witness of the plaintiff had admitted that the said letter had been exhibited in earlier proceedings.
Mr. Sarkar, appearing on behalf of the plaintiff, argued that the defendant No.2 had not been able to dispute default by the defendant No.1 in payment of rent. The defendant No.2 has taken the stand that the default was also collusive with intention to get rid of the defendant No.2.
Mr. Sarkar submitted that the defendant No.1 had defaulted in payment of rent for 10 years. Mr. Sarkar submitted that the charge of collusion might have been sustainable if the tenant had a good defence. However, in view of admitted default in rent for 10 years, the defendant No.1 has no defence at all.
Mr. Sarkar further argued that the defendant No.2 could not avail of the ground of the suit being collusive as the defendant No.2 had failed to establish that he was a lawful sub-tenant with potential right to become a direct tenant under the superior landlord, that is the plaintiff.
Relying on the judgment of the Supreme Court in Burmah Shell Oil Company now known as Bharat Petroleum Corporation Ltd. vs. Khaja Midhat Noor & Ors. reported in AIR 1988 SC 1470, Mr. Sarkar argued that an illegal sub-tenant who knowingly took the risk of being evicted could not complain of the tenant having willingly suffered a decree by collusion or deliberate omission to defend the suit.
Mr. Sarkar submitted that the document dated 22nd November, 1971 on which the defendant No.1 is purporting to rely is in itself of dubious nature. Mr. Sarkar also argued that the fact that the document had been exhibited did not in itself establish that the contents of the documents were the conclusive evidence.
Mr. Sarkar next submitted that a fact could be said to be proved only when the Court held it to be true. In the context of aforesaid submission, Mr. Sarkar relied upon Section 3 of the Evidence Act which defines 'proved' as follows:
'A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.'
Mr. Sarkar submitted that a plain reading of the document dated 22nd November, 1971 itself shows that it was not an agreement at all. A single letter addressed by the
defendant No.1 to the defendant No.2 allegedly contained signature made on behalf of the plaintiff.
Mr. Sarkar submitted that there was nothing to show that the plaintiff endorsed or accepted the contents of the letter by any kind of acknowledgement. Mr. Sarkar emphatically argued that the fact that a letterhead of the 1950s had been utilized in 1971, showed that the letter had been manufactured.
Mr. Sarkar submitted that there could be no reason to utilize the letterhead printed in the 1950s in 1971 when newly printed letterheads of the 1970s were available. This was evident from the letter dated 6th July, 1979.
Mr. Sarkar also argued that the agreement was a one-sided agreement. There was no reason for the tenant to sub-let the suit premises nor any reason for the landlord to approve the same. Mr. Sarkar submitted that the document dated 22nd November 1971 refered to a plaint which forms part of the alleged tripartite agreement. The plaint was not tendered in evidence. What was tendered was a photocopy surreptitiously xeroxed from the records of some other court where apparently the plaint had been exhibited. In answer to question the defendant No.2 stated that none had signed the plaint on behalf of the defendant No.2.
Mr. Sarkar argued that under Section 16(1) of the West Bengal Premises Tenancy Act, 1956, three conditions had to be complied with for grant of a sub-tenancy that could be claimed to be legal. There had to be previous consent in writing of the landlord; the tenant was required to give notice to the landlord in the prescribed manner within one month from the date of such sub-letting; the sub-tenant was likewise required to give notice in the prescribed form to the landlord within one month from the date of such sub-letting.
Mr. Sarkar submitted that the manner of service of notice is prescribed in Rule 4 of the West Bengal Premises Tenancy Rules, 1956. Rule 4 specifies that relevant particulars including location and description of the premises let out are to be furnished.
Mr. Sarkar argued that the provisions of Section 16(1) read with Rule 4 were mandatory and not directory. In support of his submission Mr. Sarkar cited the Single Bench judgment in Manik Majumdar vs. Bhupendra Kumar Baksi reported in 94 CWN 915.
Citing the judgments in Dilip Narayan vs. Amarendra Kumar reported in 64 CWN 284 and in Smt. Krishna Devi vs. Shalimar Paint Colour & Varnish Company (P) Ltd. reported in 67 CWN 272 Mr. Chowdhury submitted that the provisions of Rule 4 of the West Bengal Premises Tenancy Rules, 1956 were not mandatory but only directory. Failure to give notice in the form of a letter by registered post with acknowledgement due would not invalidate a notice.
Distinguishing the judgments in Dilip Narayan vs. Amarendra Kumar reported in 64 CWN 284 and in Smt. Krishna Devi vs. Shalimar Paint Colour & Varnish Company (P) Ltd. reported in 67 CWN 272 cited on behalf of the defendant No.2, Mr. Sarkar argued that the judgments are not an authority for the proposition that service of notice on the landlord could be dispensed with. The requirement had substantially to be adhered to and that had not been done in the instant case.
The materials and evidence on record establish beyond any iota of doubt that the plaintiff and the defendant No.1 were under the same management, at the time when the letter dated 22nd November, 1971 was written.
On behalf of the defendant No.1, the letter was signed by Mr. D.P. Mutsuddi, who had also been a Director of the plaintiff since 28th May, 1952. On behalf of the plaintiff Mr. S.P. Jatia, who was admittedly a Director of the plaintiff, signed the said letter. The signature of the signatories of the letter dated 22nd May, 1971 are not in dispute.
The defendant No.1 had been tenant of a part of the premises No.33, 34 and 34/1 Bonbehari Bose Road, Howrah, under the plaintiff since 1969. In 1971, the defendant No.2 became a tenant under the defendant No.1 of the rest of the premises.
As emphatically argued by Mr. Sarkar, the defendant No.2 had defaulted in payment of rent for 10 years, after which an eviction suit being Title Suit No.75 of 1981 was filed by the plaintiff against the defendant in the Court of the Assistant District Judge, First Court, Howrah. The suit was filed only after the change of management.
The fact that notwithstanding default of rent for 10 years, no suit was filed till after the change of management shows that if the corporate veil is lifted it will be seen that before the change in management of the plaintiff, the persons behind the plaintiff and the defendant No.1 were the same.
The sub-tenancy of the defendant No.2 was created in 1971, that is, about eight years before the change of management. The evidence adduced on behalf of the plaintiff with regard to the incidents, which took place prior to the change of management, cannot be accepted for want of personal knowledge. On the other hand, as submitted by Mr. Chowdhury, the letter dated 22nd November, 1971 had been exhibited in an earlier suit without any objection.
On a meaningful reading of Section 16 and the various sub-sections thereunder, a tenant renders himself liable to eviction on the ground of sub-letting, if the subletting is done without the consent of the landlord. Any premises may be sublet by the tenant with prior permission of the landlord in writing.
Once permission of the landlord is obtained in writing for sub-letting of any premises, the requirements of Section 16 (1) of the West Bengal Premises Tenancy Act, 1956 are complied with.
As observed above, the letter dated 2nd November, 1971 had been signed on behalf of the Defendant No.1 by one D.P. Mutsuddi, who had been the Director of the plaintiff since 1971. The plaintiff has made no attempt to prove that the signature was not that of D.P. Mutsuddi. Nor has any attempt been made to prove that S.P. Jatia did not sign the letter on behalf of the plaintiff. No Hand-writing Expert was examined. Obviously, the signatures were those of Directors of the plaintiff.
The fact that the letterhead was printed in the 1950s, does not in itself, establish that the letter was fabricated. It is reiterated that the plaintiff has made no attempt to prove that the signatures were forged or the stamps on the letter dated 22nd November, 1919 were fabricated.
Use of old letterheads cannot and does not give rise to inference of fabrication, more so, when the plaintiff has not disclosed contemporaneous letters on letterheads printed in the 1970s. Correspondence in 1979 on letterheads printed in the 1970s do not even remotely suggest that the letter written in 1971 on letterheads printed earlier were forged or fabricated.
The plaintiff and the defendant No.1 being under the same management till the end of the 1990s, the preponderance of probabilities tends to support the case made out by the defendant No.2 that the defendant No.2 was inducted as tenant with the consent and approval of the plaintiff.
It is true, as argued by Mr. Sarkar that an illegal sub-tenant who knowingly takes the risk of being evicted cannot complain of the tenant having willingly suffered a decree by collusion or deliberate omission to defend the suit.
The proposition laid down in the judgment in Bharat Petroleum Corporation Ltd. vs. Khaja Mithad Noor & Ors. (supra) is unexceptionable. However, subletting in itself is not illegal where a sub-tenancy is created with knowledge and prior consent of the landlord.
There is no statutory form for notice of creation of sub-tenancy. Rule 4 of the West Bengal Premises Tenancy Rules, 1956 provides that notice under sub-section (1) of Section 16 of the West Bengal Premises Tenancy Act, 1956 of subletting should be given by the tenant and the sub-tenant to the landlord by registered post with acknowledgment due and should contain the following particulars: a) sufficient description of the location of the premises let to the tenant for identifying the same; b) name of the tenant; c) name of the subtenant; d) details of the portion sublet; e) rent payable by the subtenant; f) date of creation of the sub-tenancy and g) any other relevant information.
The object of notice by registered post with acknowledgement due is only to ensure proper service of notice. The notice is not required to be in the form of a letter addressed to the landlord. Forwarding to the landlord correspondence between tenant and sub-tenant containing sufficient details for identification of the portion of the premises intended to be sublet, the name of the tenant, the name of the sub-tenant, the rent payable and the date of creation of tenancy, would suffice.
The letter dated 22nd November, 1971 has been endorsed by the Director of the plaintiff. The plaintiff cannot get a decree of eviction against the defendant No.2 on the ground of subletting, in a suit instituted about 10 years after the date of subletting. The consent of the landlord to sublet is also not required to be given in any particular form.
The landlord can validly give consent in writing to creation of a sub-tenancy by endorsing a letter from the tenant to the sub-tenant which contains sufficient details of the portion proposed to be let out for identification along with other requisite particulars.
The Single Bench judgment in Manik Majumdar vs. Bhupendra Bakshi (supra) cited by Mr. Sarkar is clearly distinguishable on facts. In the aforesaid case, there was no written document to show that the landlord had acquiesced in the creation of sub-tenancy. On the other hand, even after Rabindra Bakshi left the premises and shifted elsewhere, the landlady continued to issue notice in the name of the tenant. In such circumstances, this Court refused to add the sub-tenant as party in a suit for eviction of the tenant.
There can be no doubt that for creation of a valid sub-tenancy, notice has to be given to the landlord and the consent of the landlord has to be obtained. The notice is not required to be in any particular form, as observed above. Nor is the notice rendered invalid merely because the notice was not served by registered post with acknowledgement due, if it can otherwise be established that the landlord was put to notice of creation of the subtenancy.
In Krishna Devi vs. S.P.C.V. & Company (supra) the Division Bench of this Court held that Rule 4 of the West Bengal Premises Tenancy Rules 1956 was directory and substantial compliance with the particulars mentioned in the said Rule in issuing the notice under Section 16 sub-section (2) of the said Act, would suffice.
In Debabrata Mukherjee vs. Kalyan Kr. Roy (supra) the Division Bench of this Court h
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eld that Section 14(1) does not expressly lay down that subletting in violation of Section 14(1) shall create no legal relationship as between the landlord and the sub-tenant. The effect of Section 14(1) is that a subletting after commencement of the Act without previous consent in writing of the landlord is not binding upon the superior landlord and the superior landlord has a right under Section 13(1)(a) to recover possession by evicting his tenant, who has sublet, transferred or assigned any part of the premises held by him. The letter dated 22nd November, 1971 has apparently been endorsed by J.P. Jatia, Director of the plaintiff at the material time. The signatory on behalf of the defendant No.1 was also a Director of the plaintiff at the material time. The plaintiffs have not made any attempt to prove that the letter had not been signed by the Directors of the plaintiff. The letter has been admitted in evidence in an earlier suit. In P.C. Purushothama Reddiar vs. S. Perumal reported in AIR 1972 SC 608 the Supreme Court held that once a document is properly admitted, the contents of that document should also be admitted in evidence even though the contents may not be conclusive evidence. As held above, the plaintiffs and the defendants having been under the same management till the end of the 1970s, the preponderance of probabilities also tends to support the case made out by the defendant No.2 that the defendant No.2 was inducted as sub-tenant with notice to and with consent and approval of the plaintiff. For the reasons discussed above, this Court holds that the defendant No.2 was validly inducted as sub-tenant upon notice to and with consent of the plaintiff. There will be a decree in terms of prayers (a), (b) and (c) of the plaint in favour of the plaintiff, as against the defendant No.1. The suit is, however, dismissed as against the defendant No.2.