SUSANTA BASU Vs. GOURI DASGUPTA

JUDGEMENT

(1.) This revisional application has been filed under Article 227 of the Constitution of India challenging the order/judgment dtd. 20/1/2022 passed by the learned Additional District Judge, 10th Court at Alipore in Title Appeal No. 151 of 2019 rejecting an application under Order VII Rule 11 of the Code of Civil Procedure (hereinafter referred to as 'the Code') thereby reversing the order for rejection of plaint dtd. 6/8/2019 passed in Title Suit No. 675 of 2019 by the learned Civil Judge (Junior Division), 3rd Additional Court at Alipore, South 24 Parganas.

(2.) The brief fact of the case is that opposite parties-plaintiffs filed a suit for declaration and permanent injunction against the petitioners-defendants being Title Suit No. 675 of 2019. It is contented inter alia in the aforesaid suit that one Dilip Kumar Dasgupta was the proprietor of business under the name and style of 'M/s Dasgupta Electric Art Studio' and he used to run such business in the tenanted shop room no.1 under the landlordship of Satyendra Nath Basu (since deceased) comprised within the ground floor of premises no. 238B, Rash Behari Avenue, P.S.-Gariahat, Kolkata-700019. Further said Dilip Kumar Dasgupta, proprietor of the business, died leaving behind his wife, Uma Dasgupta, Gouri Dasgupta (plaintiff no.1 herein), widow of his predeceased eldest son Pradip Kumar Dasgupta and grandson, Siddheswar Dasgupta, Tapan Kumar Dasgupta (son) and Shyamali Halder (daughter). During his lifetime, Dilip Kumar Dasgupta executed and published a registered Will and testament dtd. 2/12/2002 registered before the Additional Registrar of Assurance-III being deed no. 1013 for the year 2002. By dint of such registered Will and testament, Dilip Kumar Dasgupta bequeathed the entire business under the name and style of 'M/s Dasgupta Electric Art Studio' as well as the tenancy right in favour of his daughter-in-law, Gouri Dasgupta (plaintiff no.1) and his grandson, Siddheswar Dasgupta (plaintiff no.2). After the death of the testator, Dilip Kumar Dasgupta, the opposite parties-plaintiffs have been carrying on the business under the name and style of 'M/s Dasgupta Electric Art Studio' as per the said registered Will and their names have been duly recorded in the Office of the Kolkata Municipal Corporation in the certificate of enlistment and they have been regularly paying fees and renewing their trade licence. Since the last week of April, 2019, the petitioners-defendants and their men and agents tried to illegally oust the opposite parties-plaintiffs from the said premises. On the aforesaid facts, the opposite parties-plaintiffs prayed for declaration of their tenancy right in the suit property and permanent injunction. The petitioners-defendants filed an application under Order VII Rule 11 of the Code for rejection of plaint on the ground that the tenancy right cannot be bequeathed by way of Will and that the premises let out is a shop room and in the event of death of the original tenant, the tenancy right does not and cannot pass and/or devolve upon the plaintiffs as they are excluded by the definition of 'tenant' under Sec. 2(g) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as 'the said Act'). The learned Trial Court allowed the prayer of the petitioners for rejection of the plaint. However, the order of the learned Trial Court was set aside by the Appellate Court in Title Appeal No. 151 of 2019. Hence, this revisional application.

(3.) Mr. S. P. Mukherjee, learned advocate for the petitioners-defendants submitted, at the outset, that the predecessor-in-interest of the petitioners namely Satyendra Nath Basu filed a suit for eviction against the wife of deceased Dilip Kumar Dasgupta being Ejectment Suit No. 239 of 2007 and after her demise, it was pursued against the surviving legal heirs and decree of eviction was passed against them in respect of the suit property. Further, as per the plaint case, the plaintiffs have averred that by dint of a registered Will, they got the right of tenancy as well as the business. However, the tenancy right cannot be bequeathed by way of Will and, therefore, the opposite parties-plaintiffs prima facie do not have any tenancy right over the scheduled property and cannot claim such right on the basis of the alleged Will. The provisions of the said Act do not provide for transfer of tenancy by way of Will. In support of his contention, he relied on the decisions of this Court passed in Banwarilal Jalan versus Pramod Kumar Jalan 2011 (2) CLJ (Cal) 115 and in Lalita Saha versus Arvind Kumar Singh 2014(4) CHN (Cal) 116. Going by the provision of Sec. 2(g) of the West Bengal Premises Tenancy Act, 1997, the tenancy of Dilip Kumar Dasgupta (since deceased) could have been continued by his wife Uma Dasgupta for a period of five years subject to fulfilling of other conditions but unfortunately she has also died and since the opposite parties-plaintiffs, being the daughter-in-law and grandson, are not included within the definition of 'tenant' under Sec. 2(g) of the said Act, the opposite parties-plaintiffs have no cause of action to claim tenancy right in the suit shop room. To buttress his contention, relied on the decision of this Court passed in Nasima Naqi versus Todi Tea Company Limited and Others 2019(2) CLJ (Cal) 232. Further he submitted that clever drafting creating illusions of cause of action are not permitted in law and clear right to sue should be shown in the plaint. In the absence of such clear right to sue, the plaint is liable to be rejected. In support of his contention, he relied on the decision of the Hon'ble Supreme Court passed in I.T.C. Limited versus Debts Recovery Appellate Tribunal and Others AIR 1998 SC 634. Further sham and frivolous litigation should be shot down at the earliest stage. In support of his contention, he relied on the decision of the Hon'ble Supreme Court passed in T. Arivandandam versus T. V. Satyapal and Another (1997) 4 SCC 467. In light of his aforesaid submissions, he prayed that since the opposite parties-plaintiffs have failed to make out a clear and distinctive right of tenancy in respect of the suit property, the plaint is liable to be rejected.