TMI Blog1958 (1) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-ordinate Judge on 10-8-1956, and, from the said decree, the defendant filed this appeal in this Court on September 11, 1956. 3. The relevant facts lie within a short compass and they may be stated as follows: 4. Premises No. 33, Rowland Road, which is the premises in suit, belonged to the Maharaja of Burdwan. Under the Maharaja, there was a lessee whose interest passed by successive transfers to the Hindusthan Co-operative Insurance Society Ltd. Under Hindusthan, the Great Indian Motor Works Ltd. held the suit premises as monthly tenant at ₹ 450/- per month according to the English calendar. 5. On 23-7-1951, an order was made by this Court on its Original Side for the winding up of the Great Indian Motor Works Ltd, (vide Ext. F), and, in the said liquidation proceedings, an order (Ext. F2) was eventually made by the Court on 4-5-1954, for sale of the property and assets of the Company (including its tenancy right in the disputed premises) by public auction through Messrs. Mackenzie Lyall and Co. 6. The sale was duly held on 12-6-1954, and the defendant appellant became the purchaser therein for ₹ 1,42,500/- (vide Exts. G and Fl). The sale was confirmed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Motor Works Ltd. was the tenant in respect thereof at ₹ 450/-- p. m.; (iii) that the said Company had gone into liquidation; (iv) that, in the said liquidation proceedings, the Company's business was sold by an order of Court and it was purchased by the defendant; (v) that the said sale and purchase was without the plaintiff's consent or concurrence; (vi) that the defendant was in occupation of the disputed premises; (vii) that the plaintiff was in imperative need of building and rebuilding the said premises for his own occupation; and (viii) that the defendant did not vacate the suit premises in spite of a proper notice to quit, expiring within the month of May 1955. 13. In the plaint, the date of the cause of action of the suit was stated to be 1-6-1955. 14. The defence inter alia was- (a) that the Great Indian Motor Works Ltd. was a tenant for manufacturing purposes; (b) that the defendant duly acquired the said tenancy at the auction sale, held in the liquidation proceedings under an order of Court, and became the tenant of the disputed premises; (c) that, the said sale having been held in public auction under the order of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge answered all the above issues in the plaintiff's favour. He also answered the 5th issue, relating to mesne profits, in the plaintiff's favour except as to the rate where he accepted the defence contention that it should be on the rental basis of ₹ 450/- per month, the period, of course, starting with 1-6-1955, which was stated in the plaint to be the elate of the cause of action for the suit. All the above findings of the learned Subordinate Judge, including the decree for mesne profits, were challenged by the defendant. In this appeal, the substance of his contention being that the plaintiff was not entitled to a decree for ejectment and, necessarily, therefore, his claim for mesne profits must also fail, the plaintiff being entitled only to rent at the rate of ₹ 450/- per month, which had been duly deposited by the defendant with the Rent Controller. The propriety of this contention in its several branches or phases, as appearing in the issues, set out above, we shall presently examine. 20. We shall take up first the question of notice or, in other words, Issues Nos. 1 and 2, framed by the trial court. But, before we do that, it is necessary to say a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes. 23. Before we take up the above question on its merits, it is necessary to consider two preliminary points, raised by the learned Advocate General. Relying on the decision of P. B. Mukherji, J. in Sati Prasanna Mukherjee v. Md. Fazal, , and of the English Court of Appeal in the case of Green v. Marsh, (1892) 2 QB 330, he argued that Section 106 of the Transfer of Property Act must be held to be subject to Section 107 and that, in view of the latter section, in the absence of a registered instrument, no lease can be deemed or regarded to be for manufacturing purposes under Section 106 so as to get the benefit of its deeming provision about notice and duration of the tenancy. This argument has been developed in the following manner. 24. Under Section 106, a lease for manufacturing purposes is to be deemed to be a lease from year to year. Under Section 107, however, a lease from year to year can be made only by a registered instrument. Where, therefore, there is no registered instrument, the lease cannot be a valid lease from year to year and the deeming provision in Section 106 cannot affect or alter that position. To hold, therefore, where there is no registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice, in the absence of a contract or local law or usage to the contrary. The lease will be a lease from year to year for they limited purpose of Section 106, that is, for the limited purpose of its duration and period of notice, the duration being until the notice expires. This will not raise any conflict with Section 107. Where the lease is silent as to its duration, the omission is supplied by Section 106, according to the purpose of the lease, for applying the provisions of notice as contained therein. This view is amply supported by the observations of a Division Bench of this Court in the case of Ram Protap v. National Petroleum, , and of the Supreme Court in the case of Ram Kumar v. Jagdish Chandra, . Nothing more is necessary for our purpose. The section (Section 106) deals with the notice to quit,--its period and requisites,--and the implied duration under its deeming provision may well be for that purpose and no more and, in that view, it will be outside the mischief of Section 107. Only if Section 106, by virtue of its deeming provision had sought to fix the period of the lease for all purposes so as to make it a fulfledged lease of that particular character, a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this aspect of the matter we drew the attention of the learned Advocate General during the course of arguments but we did not get any satisfactory answer. 28. The respondent's preliminary objection under the above head is, accordingly overruled. 29. The other preliminary point of the learned Advocate General raises the question of construction of the phrase 'for any other purpose' in Section 106 of the Transfer of Property Act in relation or contradistinction to the phrase 'for manufacturing purposes' as mentioned in the said section. The learned Advocate General argued that the words 'for manufacturing purposes' in the section meant solely for manufacturing purposes and, when the purpose of the lease was not merely manufacturing but some other purpose as well,--not, of course agricultural purpose,--the lease would be for mixed and multiple purposes and would fall within the residuary phrase 'for any other purpose'. In support of his submission, he relied upon the decision of P. B. Mukherji, J. in the case , already cited, which was affirmed on appeal by Harries, C. J., and Banerjee, J. in Original Side Appeal from Original Decree No. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears to have been the lessee of the suit premises at the time under the owner Burdwan Raj and the Company took its tenancy, or, rather, its sub-tenancy, from this Mayohas. The defendant (D. W. 1) has purported to speak about the purpose, for which the tenancy was taken by the Company. It was, according to him, for development of the Company's business regarding manufacture. About this manufacture, however, the defendant's evidence is that it was of some parts,--rather of a minor character,--necessary for repairing cars (including taxis). His evidence further shows that this manufacturing was subsidiary to find only for purpose of the repairing works and it was on a very small scale. That also appears from the other witnesses (D. Ws. 2 and 3) examined on the point by the defendant, and the documents (Exts. 12 and 13), filed by the defendant but marked on behalf of the plaintiff. The overall position thus seems to be that the tenancy was taken for starting a motor repair 'works' or a motor repairing workshop which would not, even ordinarily or prima facie--and, certainly not, necessarily--be a manufacturing purpose. The defendant has, no doubt, stated in his eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the memorandum of appeal, filed in this Court, about the absence of a specific issue on the point. In these circumstances, we do not think that the defendant can complain of any prejudice. He had ample notice of the point, hs produced his materials thereon and argued the matter fully in the court below without protest and last but not the least, did not make any grievance about it, when he filed this appeal. In short, he was not the least prejudiced on this point by the absence of issue or otherwise and, in our opinion, the instant case is fully covered by the principle of the decision of this Court, reported in Mohiuddin V. Pirthichand Lal, 19 Cal WN 1159: (AIR 1915 Cal 444) and of the Privy Council in Mt. Metna v. Syud Fuzl Rub, 13 Moo Ind App 573 and Mr. Gupta's present objection must fail. 36. Mr. Gupta also argued that the transferee, mentioned in proviso (b), refers to a transferee who has not been recognised by the landlord even for the purpose of ejectment, that is, even for the purpose of a notice to quit or for purposes of the suit for eviction, and he contended that, as here, admittedly, the present suit was brought by the plaintiff against the defendant as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Subordinate Judge was of the opinion that it was a voluntary liquidation and, in that view, he found no difficulty in holding that the transfer in the liquidation proceedings was really a transfer by the tenant,--to wit, a voluntary transfer,--within the meaning of proviso (a) and, necessarily, therefore, the defendant was a transferee within proviso (b). He also expressed the view that the transfer, contemplated by proviso (a), included both voluntary and involuntary transfers and as such the defendant would fall within the mischief of proviso (b) in any view of the case. He, however, also recorded the opinion that, had the liquidation in the present case been a compulsory winding up, the transfer here would have been an involuntary one : vide In the matter of West Hopetown Tea Co. Ltd., ILR 12 All 192 and would have been outside the provisos, if they did not embrace involuntary transfers. 39. The learned Advocate General, appearing for the plaintiff respondent, did not support the learned Subordinate Judge's view that, in the present case, the winding up was voluntary. He conceded that it was the case of a compulsory winding up but he contended that, even then, the trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court and the sale is made by the liquidator, acting under the control of the Court and with its sanction. That is the dictate of law. The sale, therefore, is really by the Court, acting through the liquidator and the Company has no hand in the matter. It is thus a sale against the Company's will or a sale in invitum. This is particularly so under the Indian law where the Companies Act differs in an important particular in this respect from its English counterpart (vide Section 179 (C) of the Indian Act) under which the liquidator can sell only with the sanction of the Court, thus contemplating prior sanction, while, in the English Act (Companies (Consolidation) Act, 1908 which was considered in (1921) 2 Ch 164), the corresponding Section 151 (2), even when read with Section 151 (3), does not seem to require at least prior sanction of Court in case of the liquidator's sale). The Court directs the winding up and, as soon as the order is made, the assets of the Company are placed by law in the custody and control of the Court (vide Section 178) which eventually orders and sanctions the sale, acting under the imperative provisions of the statute (vide Section 179 (c) ). I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirement of such occupation may be substantially satisfied by evicting] the tenant from a part only of the premises and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation the Court shall pass a decree accordingly and fix a proportionately fair rent for the portion in occupation of the tenant which portion shall thenceforth constitute the premises within Clause (8) of Section 2 and the rent fixed shall De deemed to be the standard rent fixed under section 9. 46. The relevant allegation in the plaint is contained in paragraph 8 which states that the plaintiff is in imperative need of building and rebuilding the said premises for his own occupation. 47. The relevant issue is Issue No. 3 which, as finally worded, stands thus : Does the plaintiff reasonably require the premises in suit for his building and re-building purposes, for his own occupation ? 48. This issue was originally framed in the following terms : Does the plaintiff reasonably require the premises in suit for his building and re-building purposes as also for his own occupation ? but at the time of trial the words as also were deleted and the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . They could not be amalgamated and a composite or amalgam requirement, necessitating building and re-building for making the premises fit for the landlord's own occupation, would not be relevant for purposes of the proviso. Where the requirement is for build ing and re-building, that must be for purposes other than the landlord's own occupation and where the requirement is for the landlord's own occupa tion, no question of building and re-building should arise; or, to put it straight, if the landlord's case is that he requires the premises for building and re-building, he cannot claim to occupy it himself and if his case be that he requires it for his own occupation, he must occupy it as it is and must not think of building and/or re-building it and if, on his own showing or admission, it will not be fit for his own occupation unless built and/or rebuilt, his case of requirement for his own occupation must fail under the statute. Whatever may be said with regard to the first part of this argument which does not really concern us here but in which there may be a good deal of substance, we are wholly unable to accept the latter part. In the course of argument, I put ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4(1) clauses (paragraphs) (h) and (m),--and incidentally also Clause (g),) of the New Zealand statute before them by reference to Section 30 and he contended that Section 15 of our statute which corresponds to the said Section 30 shows a different intention and points to a different conclusion and suggests--and, indeed, compels--a different construction of Section 12(1) proviso (h) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, which corresponds to the above clauses of Section 24(1) of the New Zealand Act. We are unable to accept this contention. 52. To us there appears to be no material difference between Section 30 of the New Zealand Act as quoted and relied on by the Privy Council for supporting their construction of clauses (paragraphs) (g), (h) and (m) of Section 24 (1) and Section 15 of our Act to the extent that it may be relevant for Purposes of construing Section 12(1) proviso (h). In the observations of the Privy Council on Section 30 of the New Zealand Act, the relevant emphasis was on the penal provision in case of re-letting or re-sale and the absence of it in case of demolition or re-construction, where possession of the premises was rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenants (Mathew James Mekenna and another). The premises comprised land with, a hotel on it. The plaintiffs claimed ejectment for their own occupation, namely, to use it for a garage after demolition and reconstruction of the existing building (hotel). The relevant statute (the New Zealand Tenancy Act of 1948) contained, inter alia, the following provision, namely, Section 24:-- (1) An order for the recovery of possession of any dwelling-house or urban property or for the ejectment of the tenant therefrom may .......be made on one or more of the grounds following ....... * * * * (g) in the case of a dwelling-house, that the premises are reasonably required by the landlord ..........for his own occupation as a dwelling-house; (h) in the case of urban property, that the premises are reasonably required by the landlord ..........for his own occupation...... * * * * (m) that the premises are reasonably required by the landlord for demolition or reconstruction...... 55. Sub-section (2) of Section 24 left a discretion to the court to refuse ejectment on consideration of comparative hardship of the parties and all other relevant matters.'' 56. Section 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... molition and/or reconstruction for making the premises fit for the landlord's occupation and that Clause (Paragraph) (m) would not apply where demolition and/or reconstruction would be part of such occupation as aforesaid but that the said Clause (Clause (m)) was limited to cases, where the premises were required by the landlord not lor his own occupation but for other purposes, e.g., relecting, resale etc. 62. In holding as above, the Privy Council rejected the opinion of Hutchinson J. on the point and agreed with Williams J. of the High Court of Australia in the view, expressed by him on the two clauses fg) and (1) of the Australian statute (The National Security (Landlord and Tenant) Regulations), corresponding to the above clauses (h) and (m) of the New Zealand Act, in the case of Burling v. Chas. Steele and Co. Pty. Ltd., (1948) 70 CLR 485, at pages 490 and 491. The relevant observations of Williams J. as quoted by the Privy Council, appear as follows: This ground (that is (g)) applies wherever the lessor requires the premises, which means the land leased together with the buildings thereon for his own occupation ...... As part of such occupation he is qnite entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our Act, does not, as we have already pointed out, strictly arise or aid his submission. 66. The next question is whether the plaintifi has made out his case of reasonable requirement of the suit premises for his own occupation. This, indeed, is a difficult question in the tacts of this case. The plaintiff has admittedly a good dwelling house and he is not in need of any extended or greater accommodation. He has been perfectly candid about it and, whatever be the legal inference, deducible from his evidence, and whether it aids him in the suit or not, and whatever comments may be made against his other witnesses, it must be said in fairness to the plaintiff that he has very fairly placed his case before the court. Indeed, at one stage of the arguments Mr. Gupta remarked that the plaintiff has placed all his cards on the table and has given the tacts fairly and truly and has not suppressed or concealed anything and that, barring certain expressions of feelings and emotions here and there, his evidence may, on the whole, be accepted as a correct statement of facts. He, however, contended and that is the real point here for consideration that the facts, as stated by the plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouse there and, for that purpose, he got a plan sanctioned by the Corporation and collected the necessary funds by selling his Shiliong house. He chose the disputed premises for his residence as it was in a quiet locality and not in front of an open street like the busy and noisy Wellington Street. 68. On the above fuels the plaintiff's case ot reasonable requirement of the disputed premises is founded. Whether, on them, a case of requirement and of reasonable requirement, as required by law, has been made out or not is the point for consideration. For that purpose it is necessary to refer to and examine certain statements, made by the plaintiff and some of his witnesses in their cross-examination and also certain statements, made by the defendant (D. W. 1) and his son (D. W. 3) in their evidence. Nothing else appears to be relevant on the point. 69. The statute, as we have seen above, uses the phrase reasonably required by the landlord for his own occupation ' in the relevant proviso (h) and to that proviso is appended an Explanation which lays down that, in judging this reasonable requirement, the comparative advantages and disadvantages, of the landlord and the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st to consider the question of comparative advantage and disadvantage. 71. We have set cut in brief the plaintiff's evidence in support of bis case. In cross-examination, the plaintiff has stated that be never looked for any other suitable plot or any other rented house for a quieter living and that his intention was either to have a house on the disputed plot or not at all. On these statements Mr. Gupta laid some stress for showing that the plaintiff had no requirement--in any event, no reasonable requirement--of the disputed premises. We do not think, however, that that inference would be justified in the facts of this case. The plaintiff, as his evidence shows, has already deposited a good sum for the purchase of this property and, if he otherwise reasonably requires a change of residence, insistence on this property for that purpose would not affect the genuineness or the reasonableness of that requirement. This, of course, must be subject to the test of comparative advantages and disadvantages of the contending parlies, which we shall consider immediately hereafter. Mr. Gupta also pointed out that the plaintiffs story of disturbance of rest by the meetings and processio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the nature of his work or avocation, the state of his health etc.--all mav be relevant considerations for judging his requirement and the reasonableness of it. As Chief Minister the plaintiff is certainly not entitled to any privileged treatment in law and it is fair to observe that he does not claim any. He has placed the above facts before the court and giving them a dispassionate find anxious consideration, we have reached the conclusion that, subject to the test of comparative advantage and disadvantage, as laid down in the Explanation and subject also to the proviso--the disputed proviso,--appearing thereafter, if the same be eventually found applicable, the plaintiff, on the facts before us, may be said to have made out a case of reasonable requirement of the disputed premises for his own occupation within the meaning of the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950. 73. As to the lest of comparative advantage and disadvantage, the position of the parties will have to be very carefully considered. Indeed, this appears to be a crucial question in the present case. The plaintiffs position and his requirement and the reasons theretor have already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials before us, we feel that, given sufficient time, the defendant will be able to find out suitable alternative accommodation for this part of his business which is located at the disputed premises. 75. In my dealing with these cases under the Rent Control Act and, in particular, with this question of comparative advantage and disadvantage, I have often found this time factor a very helpful element and it has frequently been employed by me with great success and highly satisfactory result. I do not find any sufficient reason to make any departure or deviation or exception in the present case and, in our view, unless the proviso, appearing after the Explanation, applies to this case to justify the making of a partial decree for ejectment, the requirements of law and justice will be fully met by affirming the decree of the trial court subject to this that the defendant should have time till the end of November 1958 to vacate the suit premises. That will give the defendant more than ten months to find out suitable alternative accommodation for the part of his business which is located at the disputed premises and, on the materials before us, we have little doubt that he will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asonable to expect the defendant to contend in the written statement that partial eviction would be sufficient to meet the plaintiff's reasonable requirement. It was only in evidence that the extent of the plaintiffs requirement was somewhat indicated and, at the earliest, therefore, it was at that stage or during arguments that the defendant could have mooted this question of partial ejectment. The defendant's failure to do so, however, does not relieve the Court of its duty under the Statute and having regard to the object and scheme of the disputed proviso and, particularly, its wording, it seems to us that it is open to the Court--and that, indeed, seems to be its duty--to consider this question of partial eviction, if it thinks, on the materials before it. that that ought to satisfy substantially the plaintiff's reasonable requirement of occupation and, if the defendant agrees to occupy the portion of the premises that will be left after satisfying the plaintiffs reasonable requirement, to pass a decree for partial eviction in terms of the proviso if the same be otherwise applicable. It may be that, for finding out exactly what portion of the premises should be giy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prima facie sufficient to satisfy substantially the plaintiffs reasonable requirement of occupation. Even the plaintiffs own plan, Ext. 3, of his two proposed buildings in the disputed premises, assuming they are both necessary for satisfying his reasonable requirement for his own occupation under proviso (h), would not require any larger area for the purpose. They need not also be necessarily located, where they arc shown in the said plan (Ext. 3), to satisfy his said requirement, as appearing on the present materials before the Court, and they may conveniently be shifted and accommodated within a bigha or so to leave a decent compact area, appropriate and sufficient for the defendant's business in its present condition, for the latter's use and occupation, out of the total of 2 bighas and 5 cottahs more or less, which constitute the disputed premises. That appears to be the prima facie position on the record as it stands, but, as we shall indicate hereafter, further materials may be necessary and ought to be called for from the parties before the matter can be finally disposed of and it can be justly determined whether a division, as contemplated above, would be legal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the appeal, Mr. Gupta produced a plan of the disputed premises, on which was shown the portion which the defendant offered to release to the plaintiff, retaining the rest for his (the defendant's) purposes. That plan we are marking 'X' for identification but, as we intimated to Mr. Gupta during the course of arguments, the portion, offered to be released as shown in the said plan, measuring roughly about 14 cottahs, would not have been sufficient, in our opinion, to satisfy even substantially the plaintiff's reasonable requirement, for which we thought about a bigha at least would be necessary, and, if the matter had rested there, we would have maintained the decree for ejectment, giving the defendant time till the end of November. 1958. to vacate the suit premises and no remand would have been necessary. Eventually, however, when the matter was further examined on the entire materials before the Court, Mr. Gupta agreed that the plaintiff should have about a bigha and his client (the defendant appellant) ought to be satisfied with the rest of the premises and he suggested that the disputed premises be divided into two blocks by drawing a line straight northwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce--and for adducing which the parties are given the necessary leave--to enable the Court to come to a just and proper decision and, in the light of that decision, the suit will be disposed of finally by the court below in accordance with law and in terms of this judgment and, if, eventually, the plaintiffs claim for ejectment be decreed in full, the Court will give the defendant time till the end of November 1958 or four months from the date of its final judgment, whichever is later, for vacating the suit premises. It must be clearly understood that we are expressing no opinion on the applicability or otherwise of the above proviso or on any part of the question, now being remitted by us to the Court below, and the whole of that question in its fullness and entirety--is left open for consideration by that Court. It is also necessary to state that, for purposes of dividing the premises for convenient application of the above proviso, if the same be otherwise applicable, the parties will be entitled to make and the Court will be bound to consider any other suggested division and they will not be limited to the division or divisions, set out or suggested above. If, however, there be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
