SUDHIR KUMAR BOSH Vs. PHANINDRA KUMAR SANYAL

JUDGEMENT

(1.) THIS revisional application is directed against an order of the learned Judge, 4th Bench, Calcutta Small Cause Court, dismissing a suit for recovery of arrears of rent at Rs. 75 per month from April, 1954 to June, 1954 in respect of the premises No. 41, Karbala Tank Lane, Calcutta. According to the plaintiff petitioner the defendant opposite party, Phanindra Kumar Sanyal, was the monthly tenant under the plaintiff in respect of the premises. The monthly rental was Rs. 75 according to English Calendar and in spite of demand he failed to pay the arrears of rent for the period in suit.

(2.) THE defendant contested the suit contending that he had terminated the aforesaid tenancy by a notice dated the 1st March, 1954 and had lawfully determined or surrendered the tenancy with effect from the expiry of the month of March, 1954 and he had informed the plaintiff that one Hitendra Kanta Lahiri Chowdhury was the subtenant in respect of the premises in question under the defendant and that the plaintiff should deal direct with him. In the trial court the letter dated the 1st March, 1954 which bad been written by the defendant to the plaintiff was regarded as a letter of surrender and the issue was raised whether the surrender was legal, valid and binding on the plaintiff. The plaintiff contended that the surrender had been made without the consent of the landlord and vacant possession had not been given up and therefore the surrender could not be legal and valid. The learned trial judge, however, held that the surrender was legal and valid and the tenancy of the defendant had been lawfully determined by the surrender. There was then an application under section 38 of the Presidency Small Causes Court Act, which was heard by two judges of the Calcutta Small Causes Court. This learned Bench of the Small Causes Court accepted the contention of the plaintiff that there was no valid surrender because surrender must be with the consent of both the parties. The learned Bench of the Small Causes Court, however, held that the letter of the 1st March, 1954 could be regarded as a notice of the determination of the tenancy under section 106 of the Transfer of Property Act and that there was a valid determination of the tenancy by such notice in spite of the fact that vacant possession had not been given up on the expiry of the notice, that is, from the end of March, 1954. In this connection the learned Bench referred to an English authority (Watson v. Saunders-Roe Ltd. (1) (1947 1 K. B. 437) in which it was held that where the right to evict the tenant is restricted by statutory provisions, the tenant on determination of the tenancy was not bound to give up vacant possession. In the result the learned Bench of the Small Causes Court also held that the tenancy of the defendant Phanindra Kumar Sanyal, had been lawfully determined and there was no liability to pay rent, and accordingly the application was dismissed. From that order the plaintiff has preferred this revisional application.

(3.) THE first point urged by Mr. B. C. Dutta, appearing for the plaintiff petitioner, is that when the parties went to trial with the case that there had been a valid surrender, the learned appellate Bench had no power to substitute a case of determination of the tenancy by a notice under section 106 of the Transfer of Property Act. It is true that in the letter. Ext. 1, by which the tenancy was given up the tenant, Phanindra Kumar Sanyal, used the word 'surrender' saying "i now hereby give you notice that I surrender my tenancy in respect of the said premises with effect from the expiry of the month of March, 1954. " It is also true that in the subsequent correspondence between the solicitors of the two parties, the act of Phanindra was described as a surrender. Reference may be made in this connection to the fetter Ext. B (l), dated the 2nd April, 1954 and the letter Ext. B (4), dated the 16th June, 1954. But in the written statement, which was filed by the defendant, the alternative case of surrender or determination of the tenancy by notice was made and therefore it cannot be said that the learned appellate Bench was wrong in falling back on the case of determination of the tenancy by notice. I would agree with the learned appellate Bench in holding that it was not a case of valid surrender because section 111, clause (e), which refers to a determination (of the tenancy by express surrender, explains that such surrender means a lessee yielding up his interest under the lease to the lessor by mutual agreement. In the absence of such mutual agreement there cannot be any express surrender. There is no case of implied surrender. In the present case admittedly there was no mutual agreement in respect of the surrender and therefore there could not be a valid surrender.