TMI Blog1997 (6) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... an affidavit has been filed by the plaintiff/respondent in this Court saying that he is not pressing the ground of dona fide requirement for eviction of the appellant, no decree can he passed on the ground of bona fide requirement. 3. So far as the ground of violation of Section 108(m)(o)(p) of me Transfer of Property Act is concerned, I am of the view that the Appellate court acted illegally in granting a decree for eviction on such a ground. Tn the plaint, a case was made out that the tenant had illegally constructed one reservoir in the bath room of the first floor and also another reservoir on the ground floor. The fact of making such construction was however, denied by the defendant/tenant in his written statement. An issue was framed which is as follows : -- Is the defendant guilty of damaging the suit property by way of addition or alteration? This was issue No. 7. Although this issue was not pressed by the plaintiff /respondent in the trial Court, the appellate Court however, granted a decree on this ground. In my view, when issue No. 7 was not pressed by the plaintiff/respondent in the trial Court, there was no justification for the appellate Court to go into t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f waiver with regard to subletting was also negatived oil the ground that the question of waiver of right to evict on any ground under the West Bengal Premises Tenancy Act could not be taken even though the plaintiff or the original landlady had the knowledge that Dr. A. G. Roy was living with the original defendant for a long time. On an admission of the defendant, the trial Court found that the original defendant had surrendered part of his tenancy in favour, of Dr. A. G. Roy who used to possess the same since a long time back. The trial Court also found that the original defendant by his admission that such surrender was coupled with the delivery of exclusive possession of a part of the tenancy over which the defendant lost all his control and as the defendant made out a case of joint tenancy, there was some sort of monetary transaction between the original defendant and the said Dr. A. G. Roy. On the aforesaid findings, the trial Court decreed the suit on the ground of subletting. In appeal, the finding of the trial Court was affirmed. The appellate court relied on Exhibits 1 and 1/a and came to a conclusion that the tenancy was not a joint tenancy, but the tenancy was solely i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a v. C. Dharmalingam . Mr. Dasgupta also relied on two other decisions, one of which is the Privy Council decision reported in (1915) 42 Ind APP 103 : (AIR 1915 PC 2) (Motabhoy Mulla Essabboy v. Mulji Haridas) and the other (Fatechand Murlidhar v. Juggilal Kamlpat) and on reliance of the aforesaid two decisions Mr. Dasgupta contended that the admission contained in paragraphs 4, 8 and 10 of the written statement must be said to have been explained in view of the fact that no step was taken by the mother of the plaintiff during her life time against the original defendant. Mr. Dasgupta thereafter contended that in the present case the Courts below on the evidence and facts pleaded ought to have held that the tenancy was taken in the benami of the original defendant, although Dr. A. G. Roy was residing with the original defendant jointly in the suit premises. In support of the case of plea of benami. a Division Bench decision of this Court (Anadi Mohan v. Rabindra Nath and also a decision of the Supreme Court in the case of R. Raja Gopal Reddy v. Padmim Chandrasekharan were cited. Mr. Dasgupta lastly argued that as Dr. A. G. Roy had resided with the original defendant during the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the sub-tenant for a long time, the right to evict the tenant cannot be said to have been waived. In my view, the question of waiver in this case does not arise at all. In Putichand v. Jagmender Dass (1990) 1 SCC 169, the Supreme Court has observed as follows ; It was held that it was necessary for the tenant to obtain the consent in writing to subletting the premises. The mere permission or acquiescence will not do. The consent shall also be to the specific subletting or parting with possession. This Court, further observed that the requirement of consent to be in writing was to serve a public purpose, i.e. to avoid dispute as to whether there was consent or not, and that, therefore, mere permission or acquiescence will not do. While nothing that everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his individual capacity in the context of the statutory provision of the Delhi Rent Control Act, this Court further held that the requirement as to the consent being in writing was in the public interest and that, therefore, there cannot be any question of waiver of aright dealing with the rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt for the tenanted premises shall not create a valid sub-tenancy, an less induction of sub-tenancy is made with the written consent of the landlord. 13. For the reasons aforesaid, the Courts below were fully justified !n holding that the acceptance of rent shall not constitute legal and valid sub-tenancy and the landlord shall not be estopped from claim ing eviction of unauthorised sub-tenant along without lawful authority. It cannot therefore, be held that the right of the landlord to evict the tenant can be said to have been waited only because the sub-tenant with the knowledge of the plaintiff/respondent or of his predecessor wa in possession of the suit premises for a long time. In the case of Ram Saran v. Pyare Lal. . the decision cited by Mr. Dasgupta that is (A. S. Sulochona v. Dharmalingam) was also considered. Apart from that the decision of the Supreme Court in the case of A. S. Sulochona v. Dharmalingam, which was cited on behalf of the appellant was based on a completely different fact. In that decision the facts were like this :-- 1. The father of the landlord had granted lease in favour of the father of the fenant prior to 1952. 2. The father of the landlor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the Supreme Court and in view of my discussions made hereinabove. I am of the view that the tenant is liable to be evicted on the ground of subletting and the findings arrived at by the courts below in Second Appeal cannot be upset. 16. Let me now deal with the submission of Mr. Dasgupta on the question of Benami. Before. I proceed further, it may be stated here and now that no case was made out by either of the parties with regard to benami. No issue was raised with regard to the case of Benami. Before the Courts below no argument was advanced on the question of benami. That being the position. I am unable to permit Mr. Dasgupta to argue the case of Benami for the first time in Second Appeal. Assuming in Second Appeal for the first time the case of Benami can be urged, even then, I am of the view that such a case of Benami was not pleaded in the written statement by the defendant. In paragraph '8' of the written statement the defendant has alleged the following facts which are as follows :-- The statements made in paragraph '4' of the plaint may he substantially correct. This defendant and Dr. A. Gopal Roy both used to reside jointly in Chittagong. Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, of the view that both the courts below were fully justified in decreeing the suit for eviction on the ground of subletting. Let me now deal with two Division Bench decisions of this Court as cited by Mr Dasgupta which are (Fatech and Murlidhar v. Juggilal) and (1915) 42 Ind App. 103 : (AIR. 1915 PC 2). (Motabhoy Mulla Essabhoy v. Mulji Haridas). So far as the above two decisions are concerned. I am of the view that reliance cannol be placed on the above two decisions. In Falechand Murlidhar v. Jugilal . it has been held by this Court that while a Court of law was entitled to accept a part of the evidence of a witness am to reject another part, a pleading could not be dissected, but must be taken either as a whole or left alone altogether. If a written staiement contains an admission of certain fuels, which were favourable to him or an assertion of other facts, which are unfaypurable, the plaintiff must, if he wants to avail himself of the admission, take not only the first, set of facts as truly stated, but also the second set of facts. Relying on this decision, Mr. Dasgupta sought to contend that the courts below ought not to have relied on the admissions made in the writt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. Considering the above admitted facts, the Supreme Court in that decision held that the entry in the counter-foils of the rent receipts being an admission in favour of the landlord was not against the tenant. Paragraph '6' of the said decision however runs as follows :-- Reliance was placed by the District Judge on the counterfoil where the plaintiff-landlord tried to make out a case of monthly tenancy but the entry in the counterfoil being an admission in his own favour was not admissible against the appellant. On the other hand, the trial Court has pointed out at page (?) of its judgment that the receipts produced by the tenant clearly show that the rent used to be paid from year to year. Exhibits 24 to 26 pertained to the rent paid on an early basis right from 1959 to May 31, 1961. On point of fact, therefore, we arc satisfied that in the instant case the lease was from year to year and, therefore, a month's notice was not legal if the lease was for a manufacturing purpose. 19. F'rom the aforesaid finding of the Supreme Court, it is clear that the counter foils of the rent receitps were found to be not admissible against the tenant in view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same was allowed in the absence of the heirs and legal representatives of the deceased defendant for not taking any step. Mr. Dasgupta, appearing for the appellant however. contended that when order No. 40 dated 14th August, 1987 was passed or when the date of death of the original defendant was disclosed by the plainiff/respondent, the suit had already abated as there was no prayer for substitution after setting aside abatement. In support of this contention, Mr. Dasgupta has relied on two Division Bench decisions of this Court in the case of Mani Gopal v. Panchanan, (1955) 59 Cal. WIN 304 and the case of K. Manna v. B. Santra, , Mr. Mahapatra. appearing for the plaintiff/respondent however, submitted that the appellate Court had rightly held that in the facts and circumstances of this case, the application for substitution on the death of the original defendant was rightly allowed. Mr. Mahapata contended that since the date of death of the original defendant was subsequently disclosed, the question of abatement shall not arise. He submitted that assuming that the question of abatement had arisen, then also it cannot be held that the appellate Court had acted illegally in all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d given certain reasons for not giving the date of death of the defendant/appellat in it. The reason was that the date of death was not disclosed by the learned advocate of the defendant/appellant. As the date of death was not disclosed by the learned advcate of the defendant/appellant and as on the application for substitution was filed on the basis of such information given by the learned advocate for the defendant/appellant, it must be held that the plaintiff/respondent had no information about the date of death of the original defendant and, therefore, on the date of filing the application for substitution the date of death could not be disclosed by the plaintiff/respondent. As soon as the date of death was disclosed, the plaintiff/ respondent brought the date of death of the original defendant into record by filing an application to that effect. Such being the position. I am in agreement with the views expressed by the Courts by (sic) below that even if the date of death was not disclosed in the original application and in view of the subsequent disclosure of the same by the learned advocate for the defendant/ appellant, there cannot be any illegality in the matter of allowing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application for substitution ought to have been regarded as an application for substitution after setting aside abatement. In my view, the Courts below have not acted illegally and without jurisdiction in allowing the application for substitution, after accepting the explanations given by the plaintiff/respondent. That apart. Order 22. Rule IDA of the Code of Civil Procedure, which has been added in Order 22 of the Code of Civil Procedure by the Amepdment Act, 1976 provides that when a pleader, appearing for a party to the suit, comes to know about the death of the party, he shall inform the Court about it and the Court thereafter shall issue notice to the other party. This provision was introduced by the aforesaid amendment specially to mitigate the hardship arising from the fact that the party may not come to know about the death of the other party during the pendency of any civil proceeding. By this amendment, a duty has been cast upon the learned advocate, appearing for the party who is dead to intimate the Court about the date of death of the parly represented by him. For this purpose, this deeming fiction is introduced by the amendment to the effect that the contract between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anan). In my view, this decision cannot be applied in the facts and circumstances of this case. In that decision, a Division Bench of this Court was considering the question of exemption to substitute the heirs and legal representatives under the provisions of sub-rule (4) Rule 4 of Order 22 after the suit had abated. In other words, the Court cannot exercise the power to exempt under Order 22. Rule 4 sub-rule (4) of the Code after abaiement had taken place. I am not concerned with this question in this case in view of the discussions made hereinabove. In the present case, an application for substitution was filed and subsequently by another application or by an affidavit the date of death was disclosed. Such disclosure could be made only after the date of death was supplied by the learned advocate of the deceased defendant. Therefore in the facts and circumstances of this case. I am unable to rely on the decision of the Division Bench which dealt with the power of the Court to exempt under sub-rule (4) Rule 4 of Order 22. The next decision is a decision of this Conn in the case of K. Manna v. B. Sanira, . In my view, this decision cannot also be applied to the facts and circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode of Civil Procedure. From the facts discussed earlier, it must be held that the aforesaid decision of the Court is clearly distinguishable on facts. Lastly, Mr. Dasgupta, appearing on behalf of the appellant had relied on Rule 21 of Civil Rules and Orders and submitted that as the application for susbstitution was not served on the heirs and legal representatives of the deceased defendant, the order passed by the trial Court allowing the said application for substitution must be set aside. it is true that Rule 21 of Civil Rules and Orders makes an obligation to a party to serve on the pleader or other party with the application that may be filed in Court. But, in the facts and circumstances of this case. I do not find that even if the service of a copy of the application was not made by the learned Cousnel for the deceased defendant, in Second Apeal such question would be permitted to be agitated. The order allowing the application for substitution was made in the year 1987, I do not find from the records that after the heirs and legal representatives of the deceased defendant were brought on record, any application was filed by them to recall the order which was passed in the y ..... X X X X Extracts X X X X X X X X Extracts X X X X
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