LAWS(CAL)-2002-9-6

DEBI PROSAD CHAKRABORTY Vs. MATHUR CHANDRA PRATIHAR

Decided On September 13, 2002
DEBI PROSAD CHAKRABORTY Appellant
V/S
MATHUR CHANDRA PRATIHAR Respondents

JUDGEMENT

(1.) The judgment and decree dated 30th August, 1994 passed by the learned Judge, 2nd Bench, City Civil Court at Calcutta, in Title Suit No. 1582 of 1987 has since been assailed in this appeal.

(2.) Mr. Bhaskar Ghose, learned counsel appearing for the appellants, has contended that originally the father of the plaintiffs and the defendant were subtenants under one Smt. Barindra Bala Dassi with some other sub-tenants. The said Barindra Bala Dassi was a tenant under one Smt. Pramila Sundari Paul. The interest of Smt. Pramila Sundari ultimately developed upon Smt. Arati Basu. The interest of the tenant Smt. Barindra Bala Dassi developed upon one Kalyan Mitra. These facts are not in dispute. The defendant No. 1, one of the sub-tenants, ultimately acquired the interest of the landlord, Smt. Arati Basu, sometimes in 1976. The said defendant after having acquired the interest of the landlord instituted a suit for eviction against the said Kalyan Mitra on various grounds including sub-letting, being Ejectment Suit No. 502 of 1986. The said suit was ultimately decreed exparte. The present suit, being Title Suit No. 1582 of 1987, has since been filed by the plaintiffs claiming interest of the respective sub-tenants in respect of the suit premises seeking relief in the form of a decree for declaration that the said decree passed in Ejectment Suit No. 502 of 1986 is fraudulent, void, bad in law, collusive and not binding upon the plaintiffs and also for a decree declaring that the plaintiffs are the direct tenants under the defendant and for injunction. This suit was dismissed by the judgment and decree dated 30th August, 1994.

(3.) Mr. Ghose, learned counsel, appearing on behalf of the appellants in this appeal has pointed out that since the plaintiffs and the defendant were sub-tenants under the original landlord since 1943, namely, before the West Bengal Premises Tenancy Act, 1956 had commenced and the sub-tenancy was granted with the consent of the landlord and the defendant, having been one of the sub-tenants, could not claim the benefit of section 13(1)(a) of the West Bengal Premises Tenancy Act even in the absence of any notice under section 16(2) of the said Act. On the other hand, in the facts and circumstances of the case, the plaintiffs are entitled to the benefit of section 13(2) of the said Act. Inasmuch as, section 16(2) of the said Act does not contemplate giving of notice between the two sub-tenants, one of whom, subsequently became the landlord of the premises and the others remained sub-tenants in the same premises. The period of six months provided for in issuing such notice by the sub-tenant to the landlord could not have been given to the present defendant, being the landlord and he himself having been a sub-tenant at that point of time could not claim any benefit on account of default of giving such notice by the sub-tenant to the landlord since the said defendant was also equally situated with the plaintiffs vis-a-vis the sub-tenants and the original landlord. Mr. Ghose next contended that the provision of section 16(2) of the West Bengal Premises Tenancy Act, 1956 is not mandatory. In a giving circumstances, non-service of notice under section 16(2) of the said Act could not be fatal. It is one of such case where both the plaintiffs and the defendant were sailing in the same boat until 1976 and, therefore, it would not affect the right of the plaintiffs claiming the benefit under section 13(2) of the said Act even without any formal notice, since, even before the formal notice so required under the rules, the defendant had the knowledge and notice of sub-tenancy which is sufficient for allowing the benefit of section 13(2) of the said Act. Mr. Ghose had relied on the decision in Shantilal Rampuria & Ors. v. M/s. Vega Trading Corporation & Ors., AIR 1989 SC 1819 and has sought to distinguish and draw inference from the said distinction in favour of his contention with regard to the necessity of service of notice under section 16(2) of the said Act. He had also relied on the decisions in Dilip Narayan Roychowdhury v. Amarendra Kumar Dutta, 64 CWN 284; Sm. Krishna Debi v. Shalimar Paint, Colour and Varnish Co. (P) Ltd. & Ors., 67 CWN 272 and M/s. Bengal Wire Nails Co. (P) Ltd. v. Jagmohandas Mundra & Ors., 67 CWN 275 to support his contention with regard to the point that the provision of section 16(2) of the said Act is directory and not mandatory. He had also relied on the decision in Smt. Hiranmoyee Devi & Ors. v. Maharaj Kumar Somendra Chandra Nandy & Ors., 1982(1) CLJ 229 in order to distinguish the proposition laid down therein and contends that in the facts and circumstances of this case, the said decision would not apply.