APOLLO ZIPPER INDIA LIMITEDversusW. NEWMAN AND CO. LTD.

374                      [2018]REPORTS
               SUPREME COURT    3 S.C.R. 374                [2018] 3 S.C.R.


A                      APOLLO ZIPPER INDIA LIMITED
                                          v.
                          W. NEWMAN AND CO. LTD.
                         (Civil Appeal No. 4249 of 2018)
B                                APRIL 20, 2018
        [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
            Rules of High Court at Calcutta (Original Side), 1914:
             Chapter XIII-A-Rules 1(B), 6 and 9 – Leave to defend –
C     Permissibility – Suit premises let out to defendant (tenant) – By
      original owner (a Company) – At monthly rent of Rs. 40,000/- –
      Later Company was taken over by the State Government by statutory
      enactments – Consequently the ownership of suit premises
      transferred to the Authority of the State – Thereafter, the State vested
      all the assets of the Authority with the appellant-company – Thereby
D
      appellant-Company became absolute owner of the suit premises –
      Quit Notice was sent to the tenant by the appellant-company u/s.
      106 of Transfer of Property Act terminating the tenancy and
      demanding arrears of rent and vacant possession – Finding no reply
      to the notice, appellant-company filed summary eviction suit –
E     Respondent-tenant sought leave to defend the suit on three grounds
      (i) monthly rent of suit premises being Rs. 1600/-, suit was liable to
      be filed under Tenancy Act and not under Transfer of Property Act;
      (ii) ownership of the plaintiff was not clear moreso for want of
      attornment made by the tenant of plaintiff ’s ownership (iii) there is
      dispute as regards the amount of monthly rent – Single Judge of
F
      High Court declining to grant leave to defend decreed the suit – In
      appeal, Division Bench of High Court granted unconditional leave
      to defend the suit – On appeal, held: Change of ownership from
      original owner to the State and then from State to the plaintiff-
      company is a matter of record – In the facts of the case, ownership
G     of the plaintiff was also attorned and accepted by the defendant-
      tenant – Therefore, the tenant cannot raise plea questioning the
      title of the plaintiff and the plea of attornment – The evidence on
      record proves that the monthly rent of the premises was Rs. 40,000/
      - and not Rs. 16,00/- – Since the monthly rent of the premises
      exceeded the limit prescribed u/s. 3(f) of Tenancy Act, the Tenancy
H
                                       374
       APOLLO ZIPPER INDIA LIMITED v. W. NEWMAN                            375
                     AND CO. LTD.

Act would have no application to the premises – Therefore, summary         A
suit taking recourse to Transfer of Property Act r/w r.1(B) of Rules,
is maintainable – Defendant-tenant failed to raise any arguable
and substantial defence as required u/r. 6 r/w r.9 – Rent Control
and Eviction – Transfer of Property Act, 1882 – s. 106 – West Bengal
Premises Tenancy Act, 1997 – s. 3(f) – Great Eastern Hotel (Taking
                                                                           B
Over of Management) Act, 1975 – Great Eastern Hotel (Acquisition
of Undertaking) Act, 1980 – ss. 3(1) 3(2) and 5(11).
      Evidence:
       Standard of proof – To prove title – In eviction suit – Held: In
eviction suit landlord is not expected to prove his title like what he     C
is required to prove in a title suit – Rent Control and Eviction.
      Rent Control and Eviction:
       Eviction suit – Challenge to the title of the landlord – Scope
of – Held: By virtue of s. 116 of Evidence Act, tenant is estopped
from challenging the title of his landlord – However, tenant is entitled   D
to challenge the derivative title of an assignee of the original
landlord – However, this right of the tenant is subject to the caveat
that tenant has not attorned to the assignee – If the tenant pays rent
to the assignee or otherwise accepts the assignee’s title, it results in
creation of attornment, which, in turn deprives the tenant to challenge    E
the derivative title – Evidence Act, 1872 – s. 116.
      Allowing the appeal, the Court
      HELD: 1. The grounds, which were pressed in service by
the respondent, to seek leave to defend the suit are neither
arguable nor have any prima facie merit therein and, therefore,            F
there does not arise any need to have any trial in the suit on
merits on such grounds. [Para 43] [385-D]
      2. In an eviction suit filed by the landlord against the tenant
under the Rent Laws, when the issue of title over the tenanted
premises is raised, the landlord is not expected to prove his title        G
like what he is required to prove in a title suit. [Para 45] [385-F]
      Sheela & Ors. v. Firm Prahlad Rai Prem Prakash (2002)
      (3) SCC 375 : [2002] 2 SCR 177; Boorugu Mahadev
      & Sons & Anr. v. Sirigiri Narasing Rao & Ors. (2016) 3
      SCC 343 : [2016] 1 SCR 530 – relied on.                              H
376           SUPREME COURT REPORTS                     [2018] 3 S.C.R.


A           3. Though by virtue of Section 116 of the Evidence Act, the
      tenant is estopped from challenging the title of his landlord, yet
      the tenant is entitled to challenge the derivative title of an
      assignee of the original landlord of the demised property in an
      action brought by the assignee against the tenant for his eviction
      under the Rent laws. However, this right of a tenant is subject to
B
      one caveat that the tenant has not attorned to the assignee. If
      the tenant pays rent to the assignee or otherwise accepts the
      assignee’s title over the demised property, then it results in
      creation of the attornment which, in turn, deprives the tenant to
      challenge the derivative title of the landlord. [Para 47][386-B-C]
C           Bismillah De (dead) by Legal Representatives v. Majeed
            Shah (2017) 2 SCC 274 : [2016] 8 SCR 719 – relied
            on.
            4. Attornment does not create any new tenancy, but once
      the factum of attornment is proved then by virtue of such
D     attornment, the old tenancy continues. Attornment can be proved
      by several circumstances including taking into consideration the
      conduct of the tenant qua landlord. [Paras 48, 63] [386-D; 388-
      G]
            Uppalapati Veera Venkata Satyanarayanaraju & Anr.
E           v. Josyula Hanumayamma & Anr. AIR 1967 SC 174 :
            [1962] SCR 910 – relied on.
            5. It is not in dispute that the Company (The original owner
      of the suit premises) who had created the original contract of
      tenancy with the respondent was acquired by the State by The
F     Great Eastern Hotel (Taking Over of Management) Act, 1975
      and the The Great Eastern Hotel (Acquisition of Undertaking
      Act, 1980, as a consequence thereof, the suit premises stood
      vested in the State Authority by operation of law as per Section 3
      read with Section 5 of the Act 1980 with effect from 17.07.1980
G     and 22.06.1981. It is also not in dispute that the respondent
      (defendant) accepted this change of ownership and accordingly
      started paying monthly rent to the State Authority from 1980 as
      its monthly tenant and which they paid till 2005. It is also not in
      dispute that in terms of the notification issued by the Governor
      on 05.10.2005 under Section 3(2) of the Act of 1980, the suit
H     premises then stood transferred and vested in the appellant-
       APOLLO ZIPPER INDIA LIMITED v. W. NEWMAN                          377
                     AND CO. LTD.

Company and the appellant accordingly became the owner of the            A
suit premises with effect from 05.10.2005. It is further not in
dispute that the State Authority and their lawyer, vide letters
dated 24.02.2006 and 28.04.2006, informed the respondent about
the change of ownership of the suit premises and the appellant
acquiring the ownership of the suit premises vide notification
                                                                         B
dated 05.10.2005. These undisputed facts, which are matter of
record, are sufficient to hold in the eviction suit that the appellant
became the owner of the suit premises with effect from
05.10.2005. [Paras 49-54] 386-E-H; 387-A-B]
      6. When the appellant sent a quit notice to the respondent
under Section 106 of the Transfer of Property Act, 1882                  C
determining the tenancy and calling upon the respondent to pay
the arrears of rent and vacate the suit premises, despite receipt
of the quit notice, they did not reply to it. It amounts to waiver on
their part to challenge the invalidity or infirmity of the quit notice
including the ownership issue raised therein. The respondent             D
by letters dated 13.06.2006, 27.06.2006, 05.07.2006 and
11.07.2006, sent to the appellant on the question of ownership of
the suit premises and payment of rent had expressed their
willingness to attorn and continue the tenancy with the appellant
and also offered to pay rent to the appellant. The respondent
also in their civil suit filed against the appellant admitted the        E
ownership of the appellant and went to the extent of seeking the
mandatory injunction against the appellant directing them to
accept the monthly rent of the suit premises from the respondent.
The conduct of the respondent, therefore, disentitles them to
now raise a new plea questioning the title of the appellant over         F
the suit premises and a plea of attornment. Both are wholly
misconceived pleas and, therefore, deserve to be rejected. [Paras
56, 57, 60, 61 and 62] [387-D-E; 388-C-D, F]
      Parwati Bai v. Radhika AIR 2003 SC 3995 – relied on.
       7. Thus the appellant was prima facie able to prove their         G
title over the suit premises so also was able to prove the factum
of “attornment” made by the respondent in relation to the suit
premises in appellant’s favour thereby entitling the appellant to
determine the contractual tenancy which was devolved upon them
by operation of law. [Para 64] [388-H]                                   H
378            SUPREME COURT REPORTS                     [2018] 3 S.C.R.


A           8. The monthly rent of the suit premises was Rs.40,000/-.
      The respondent had been paying Rs.40,000/- per month to their
      previous landlord – for a long time; the bifurcation of Rs.40,000/-
      was being sought by the respondent so that they may get the
      benefit of applicability of the Tenancy Act to defend therein
      tenant’s right which they failed to prove. The rent receipts filed
B
      by the parties clearly proved that the monthly rent of the suit
      premises was Rs.40,000/- and not Rs.1600/-. [Para 67] [389-D]
             9. The appellant rightly filed the suit by invoking the
      provisions of the Transfer of Property Act. The monthly rent of
      the suit premises was Rs.40,000/- Once the monthly rent of the
C     suit premises was found to exceed the limit prescribed under
      Section 3(f) of West Bengal Premises Tenancy Act, 1997 the
      provisions of the Tenancy Act had no application to the suit
      premises. Therefore, the appellant was well within their right to
      file summary suit against the tenant’s eviction and for recovery
D     of the arrears of rent by taking recourse to the provisions of the
      TP Act read with Rule 1(B) of The Rules of High Court of Calcutta
      (Original Side), 1914, applicable to the suits filed on the original
      side jurisdiction of the High Court at Calcutta. [Paras 69-71] [389-
      F-H; 390-A]
E           10. The respondent failed to raise any arguable and
      substantial defense as required under Rule 6 read with Rule 9 of
      the Rules and the three grounds raised for seeking leave to defend
      the suit were only for the sake of raising and had no factual or/
      and legal foundation to stand for trial in the suit and hence no
      leave can be granted to the respondent on such grounds under
F     Rule 9 of the Rules. It was, therefore, rightly declined by the
      Single Judge of High Court. [Para 72] [390-B]
                             Case Law Reference
      [2002] 2 SCR 177               relied on              Para 46
G     [2016] 1 SCR 530               relied on              Para 46
      [2016] 8 SCR 719               relied on              Para 46
      [1962] SCR 910                 relied on              Para 47
      AIR 2003 SC 3995               relied on              Para 48
H
       APOLLO ZIPPER INDIA LIMITED v. W. NEWMAN                               379
                     AND CO. LTD.

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4249                     A
of 2018.
     From the Judgment and Order dated 13.06.2017 of the Division
Bench of the High Court of Calcutta in APD No. 510 of 2015.
      Mukul Rohatgi, Ranjeet Kumar, Sr. Advs., Saurabh Kirpal,
Ms. A. Malhotra, Prince Anthony, Ms. Tamali Wad, Advs. for the                B
Appellant.
     Jaideep Gupta, Sr. Adv., Parijat Sinha, C. K. Jain, Prateek Jalan,
Ms. Reshmi Rea Sinha, Rudra Dutta, Advs. for the Respondent.
      The Judgment of the Court was delivered by                              C
      ABHAY MANOHAR SAPRE, J. 1. Leave granted.
       2. This appeal is directed against the final judgment and decree
dated 13.06.2017 passed by the High Court at Calcutta in APD No. 510
of 2015 whereby the Division Bench of the High Court allowed the
appeal filed by the respondent herein and set aside the order dated           D
14.10.2015 passed by the Single Judge of the High Court and granted
unconditional leave to the respondent to defend the suit and remanded
the suit for its trial on merits.
       3. The short issue involved in this appeal relates to grant of leave
to the respondent (defendant) to defend the summary eviction suit filed       E
by the appellant against them in relation to the suit premises.
       4. In order to appreciate the issue involved, it is necessary to set
out the background facts which led to filing of the summary eviction suit
leading to passing of the impugned order.
      5. The background facts of the case are as follows:                     F

      6. The appellant is the plaintiff whereas the respondent is the
defendant in a summary suit out of which this appeal arises.
       7. There is a Hotel in the city of Kolkata called “Great Eastern
Hotel” (hereinafter referred to as “GEH”). It is situated in Old Court        G
House Street (Hemanta Basu Sarani), Kolkata. The Hotel has been in
existence for the last more than a century. It is a heritage Hotel. The
Hotel building has several floors and consists of several shops, business
premises including the Hotel. The building and the Hotel was owned and
run by the Company called “Great Eastern Hotel Limited” (hereinafter
referred to as “GEHL” ).                                                      H
380             SUPREME COURT REPORTS                           [2018] 3 S.C.R.


A            8. The shops and business premises in the Hotel building are mostly
      on the ground floor and were let out by GEHL to different persons as
      their tenants. One such business premises (No.18) measuring around
      6000 sq. feet, which is the subject matter of this appeal (hereinafter
      referred to as the “suit premises”), was let out by GEHL, a century
      back, to the respondent for non-residential purpose. The monthly rent of
B
      the suit premises at the relevant time was Rs.40,000/-.
             9. In the year 1975, the State of West Bengal passed an Act
      called “The Great Eastern Hotel (Taking Over of Management) Act,
      1975 (Act XXXII of 1975)” (hereinafter referred to as “the Act 1975”).
      The Act 1975 was passed to provide for taking over of the management
C     of the undertaking of the GEHL as defined under Section 2(d) for a
      limited period of five years in public interest and also to secure its proper
      management. Pursuant thereto, the State Government took over the
      management of the undertaking of the GEHL.
            10. The Act of 1975 was followed by another Act passed by the
D     State of West Bengal on the expiry of five years in 1980 called “The
      Great Eastern Hotel (Acquisition of Undertaking) Act, 1980 (Act No
      XXVII of 1980)” (hereinafter referred to as “the Act 1980”). The Act
      1980 was passed for the acquisition of the undertaking of the GEHL.
             11. On 18.06.1981, the State Government issued a notification
E     under Section 3(1) of the Act 1980 whereby the undertaking of GEHL
      stood transferred to and vested absolutely in the State Government with
      effect from 17.07.1980.
             12. The Governor issued a notification under Section 3 (2) of the
      Act 1980 for better and efficient management and administration of the
F     GEH, and directed therein that the undertaking of the GEHL shall stand
      transferred to and vest in the Great Eastern Hotel Authority (for short,
      “GEHA”) constituted under Section 5 (1) of the Act 1980.
            13. Consequent upon enacting of the Act 1980 and issuance of
      the aforementioned notification under the Act of 1980, the State
G     Government (GEHA) became the owner of the GEHL (which included
      the land, Hotel building, assets and the management of GEHL) by
      operation of law.
             14. As a consequence thereof, the respondent, who was originally
      the tenant of GEHL, became the tenant of the State Government, i.e.,
H
        APOLLO ZIPPER INDIA LIMITED v. W. NEWMAN                                381
         AND CO. LTD. [ABHAY MANOHAR SAPRE, J.]

GEHA on the same terms and conditions with effect from 17.07.1980.              A
The respondent too accepted this transfer of ownership of the suit
premises and accordingly started paying monthly rent of Rs.40,000/- to
GEHA which they paid till 2005.
      15. On 05.10.2005, the Governor issued another notification under
Section 3(2) of the Act 1980 and directed therein that all the fixed and        B
current assets of the GEHA be vested in the Company called “Apollo
Zipper India Limited” (appellant herein).
      16. As a result of issuance of this notification, all the assets (fixed
and current) of GEHA stood vested in the appellant-Company with effect
from 05.10.2005. This is how the appellant became the absolute owner            C
of GEHA including the suit premises let out to the respondent.
      17. By letter dated 24.02.2006, GEHA informed the respondent
about the transfer of their entire assets to the appellant with effect from
05.10.2005 followed by another letter dated 28.04.2006 of the Advocates
of GEHA sent to the respondent informing them about the transfer of             D
ownership and assets of GEHA to the appellant with effect from
05.10.2005 including transfer of the suit premises to the appellant.
      18. On 17.05.2012, the appellant sent a quit notice to the
respondent under Section 106 of the Transfer of Property Act, 1882
(hereinafter referred to as “the TP Act”) and terminated the respondent’s       E
tenancy with effect from 03.06.2012 and demanded arrears of rent and
vacant possession of the tenanted premises from the respondent. On
receipt of the quit notice, the respondent did not reply to it. (See page
180 of SLP- order of the Single Judge).
      19. This led to filing of the summary suit being Civil Suit No.201/       F
2012 by the appellant against the respondent on the original side of the
High Court at Calcutta claiming therein arrears of rent (Rs.39,20,000/-),
the vacant possession of the suit premises and mesne profits at the rate
of Rs.40,000/- per day.
        20. The suit was filed under Chapter XIII- A (Rule 1-B) of the
                                                                                G
Rules of the High Court at Calcutta (original side), 1914 (for short, “The
Rules”). The appellant filed evidence by way of affidavit in support of
their case. The respondent on being served of the summons of the suit
also filed affidavit opposing the suit of the appellant.

                                                                                H
382             SUPREME COURT REPORTS                           [2018] 3 S.C.R.


A            21. It may be mentioned here that the appellant filed another Civil
      Suit No.53/2007 against the respondent in the High Court at Calcutta for
      permanent injunction restraining them from carrying out any changes in
      the nature and character of the suit premises and from transferring and
      alienating the suit premises to any third party.
B            22. Similarly, the respondent also filed one suit (Title Suit No.1183/
      2012) in the City Civil Court at Calcutta against the appellant for a
      declaration that the quit notice dated 17.05.2012 sent by the appellant to
      the respondent under Section 106 of the TP Act is void, that the respondent
      is a monthly tenant of the suit premises, and also prayed for issuance of
      mandatory injunction against the appellant, who was made defendant
C     No.1 in the said suit, and Bharat Hotels Ltd., GEHA and the State of
      West Bengal as defendant Nos. 2, 3 and 4 respectively, directing them
      to accept the monthly rent from the respondent(plaintiff) at the rate of
      Rs.1600/- in respect of the tenanted premises. This suit is pending.
             23. The respondent also filed Writ Petition No.569/2004 in the
D     High Court at Calcutta challenging therein the rate of monthly rent of
      the suit premises.
             24. Coming now to the facts of the summary suit filed by the
      appellant (C.S. No.201 of 2012) out of which this appeal arises, the
      appellant (plaintiff) claimed that they are entitled to a decree for eviction
E     against the respondent from the suit premises and also a decree for
      arrears of rent and mesne profits under Rule 6 of the Rules because the
      respondent has failed to raise any arguable and substantial defense on
      merits in support of their case in answer to the appellant’s summary suit.
             25. The respondent, however, raised essentially three grounds to
F     oppose the appellant’s suit by way of defense and sought leave to defend
      the suit on the said grounds.
             26. First, the suit, as filed by the appellant by taking recourse to
      the provisions of the TP Act, is not maintainable. According to the
      respondent, the suit should have been filed under the West Bengal
G     Premises Tenancy Act, 1997 (for short, “the Tenancy Act”) because
      the monthly rent of the suit premises is less than the limit prescribed
      under Section 3(f) of the Tenancy Act (monthly rent is Rs.1600/- whereas
      the limit prescribed is Rs.10,000/-.)
           27. Second, the respondent has not attorned to the appellant
H     inasmuch as it is also not clear as to who is the owner of the suit premises,
        APOLLO ZIPPER INDIA LIMITED v. W. NEWMAN                                383
         AND CO. LTD. [ABHAY MANOHAR SAPRE, J.]

viz., the appellant-Company or Bharat Hotels limited and, therefore, the        A
appellant is required to prove their title over the suit premises. It is more
so for want of any attornment made by the respondent of the appellant’s
ownership and the tenancy in question. This, according to the respondent,
needs an elaborate trial in the suit.
      28. Third, the monthly rent of the suit premises is Rs.1600/-             B
whereas the respondent is paying Rs.38,400/- towards maintenance
charges to the landlord. It was contended that since there is a dispute as
to whether the monthly rent is Rs.40,000/- or Rs.1600/-, the same also
needs an elaborate trial on merits in the suit.
       29. The Single Judge, by order dated 14.10.2015, declined to grant       C
leave to defend to the respondent and decreed the appellant’s suit by
passing an eviction decree against the respondent in relation to the suit
premises. The Single Judge held that none of the grounds raised by the
respondent to seek leave to defend the suit are prima facie arguable
and nor have any merit and nor these grounds constitute any substantial
defense, which may require an elaborate trial on such grounds and,              D
therefore, no case is made out to grant any leave to defend the suit to
the respondent.
       30. In other words, the Single Judge held, that the summary suit is
maintainable under the provisions of the TP Act, that the monthly rent of
the suit premises is Rs.40,000/-, that the respondent has attorned to the       E
appellant, that the appellant has prima facie proved their title over the
suit premises, that the provisions of the Tenancy Act has no application
because the monthly rent of the suit premises is above the prescribed
limit of Rs.10,000/- and lastly, to record these findings, no elaborate trial
in the suit is required inasmuch as such findings can be recorded on the        F
basis of the documents filed by the parties.
      31. The respondent felt aggrieved and filed appeal before the
Division Bench of the High Court. By impugned judgment, the Division
Bench allowed the respondent’s appeal, set aside the order of the Single
Judge and granted unconditional leave to defend the suit to the respondent      G
and remanded the suit for its trial on merits.
       32. The Division Bench was of the view that there is some dispute
regarding the title over the suit premises as to who is the owner of the
suit premises, namely, whether the appellant-Company or the other
Company,i.e., M/s Bharat Hotels Ltd.
                                                                                H
384             SUPREME COURT REPORTS                           [2018] 3 S.C.R.


A             33. In other words, the Division Bench held that the question of
      title over the suit premises needs to be gone into detail in the suit with a
      view to find out as to who is the actual owner of the suit premises and
      hence an arguable case in defense has been made out by the respondent
      while seeking leave to defend the summary suit.
B            34. The plaintiff (appellant) felt aggrieved and filed this appeal by
      way of special leave against the judgment of the Division Bench in this
      Court.
            35. Heard Mr. Mukul Rohtagi and Mr. Ranjeet Kumar, learned
      senior counsel for the appellant and Mr. Jaideep Gupta, learned senior
C     counsel for the respondent.
             36. Mr. Mukul Rohatgi, learned senior counsel for the appellant
      (plaintiff) while assailing the legality and correctness of the impugned
      judgment, mainly reiterated the same submissions, which were urged by
      the appellant before the two Courts below in support of their case.
D            37. In substance, his submission was that the reasoning and the
      conclusion arrived at by the Single Judge is just, proper and legal and
      hence the order of the Single Judge deserves to be restored by setting
      aside the impugned judgment.
             38. Learned counsel urged that none of the three grounds raised
E     by the respondent for grant of leave to defend the suit were either
      arguable or had any prima facie merit therein. In other words, the
      submission was that all the three grounds were raised for the sake of
      raising having no arguable and substantial defense whether on facts or
      in law and, therefore, Single Judge was justified in declining to grant
F     leave to defend the suit to the respondent and was justified in passing
      decree for eviction against the respondent.
            39. On merits, learned counsel pointed out with reference to each
      ground that the documents on record would prima facie show that firstly,
      the monthly rent was Rs.40,000/-, Secondly, the appellant was the owner
      of the suit premises, thirdly, the respondent had duly attorned to the
G
      appellant and fourthly, the suit was rightly filed by invoking the provisions
      of the TP Act because the provisions of the Tenancy Act had no
      application to the suit premises due to monthly rent of the suit premises
      exceeding the limit specified under Section 3 (f) of the Tenancy Act.

H
        APOLLO ZIPPER INDIA LIMITED v. W. NEWMAN                                  385
         AND CO. LTD. [ABHAY MANOHAR SAPRE, J.]

       40. In reply, Mr. Jaideep Gupta, learned senior counsel for the            A
respondent supported the impugned judgment and contended that no
case is made out to interfere in the impugned judgment. Learned counsel
then elaborated his submission in support of the impugned judgment and
prayed for dismissal of the appeal.
       41. Having heard the learned counsel for the parties and on perusal        B
of the record of the case, we are inclined to allow the appeal, set aside
the impugned judgment and restore the order of the Single Judge.
       42. In our considered opinion, the reasoning and the conclusion
arrived at by the Single Judge while declining to grant leave to defend
the suit to the respondent and decreeing the appellant’s suit for eviction        C
deserves to be restored as against the impugned judgment passed by the
Division Bench.
       43. In other words, we are of the considered opinion that the
grounds, which were pressed in service by the respondent, to seek leave
to defend the suit are neither arguable nor have any prima facie merit            D
therein and, therefore, there does not arise any need to have any trial in
the suit on merits on such grounds. This we say for the following reasons.
       44. The first question that arises for consideration in this appeal is
whether the respondent attorned to the appellant or whether the appellant
is required to prove their title over the suit premises or whether there          E
exists any doubt or confusion over the issue of title of the suit premises
so as to grant leave to defend to the respondent to probe these questions
elaborately on merits in the summary suit filed by the appellant against
the respondent for eviction.
        45. It is a settled principle of law laid down by this Court that in an   F
eviction suit filed by the landlord against the tenant under the Rent Laws,
when the issue of title over the tenanted premises is raised, the landlord
is not expected to prove his title like what he is required to prove in a title
suit.
       46. In other words, the burden of proving the ownership in an
                                                                                  G
eviction suit is not the same like a title suit. (See Sheela & Ors. vs.
Firm Prahlad Rai Prem Prakash, 2002 (3) SCC 375, Para 10 at page
383 and also Boorugu Mahadev & Sons & Anr. vs. Sirigiri Narasing
Rao & Ors. 2016 (3) SCC 343, Para 18 at page 349 ).

                                                                                  H
386             SUPREME COURT REPORTS                              [2018] 3 S.C.R.


A             47. Similarly, the law relating to derivative title to the landlord and
      when the tenant challenges it during subsistence of his tenancy in relation
      to the demised property is also fairly well settled. Though by virtue of
      Section 116 of the Evidence Act, the tenant is estopped from challenging
      the title of his landlord, yet the tenant is entitled to challenge the derivative
      title of an assignee of the original landlord of the demised property in an
B
      action brought by the assignee against the tenant for his eviction under
      the Rent laws. However, this right of a tenant is subject to one caveat
      that the tenant has not attorned to the assignee. If the tenant pays rent to
      the assignee or otherwise accepts the assignee’s title over the demised
      property, then it results in creation of the attornment which, in turn,
C     deprives the tenant to challenge the derivative title of the landlord. [See
      Bismillah De (dead) by Legal Representatives vs. Majeed Shah.
      2017 (2) SCC 274 Para 24]
            48. It is equally well-settled law with regard to attornment that it
      does not create any new tenancy but once the factum of attornment is
D     proved then by virtue of such attornment, the old tenancy continues.
      (See Uppalapati Veera Venkata Satyanarayanaraju & Anr. Vs.
      Josyula Hanumayamma & Anr. AIR 1967 SC 174 ).
            49. In the case at hand, we find that it is not in dispute that the
      original owner of the suit premises was GEHL, who had created the
E     original contract of tenancy with the respondent in relation to the suit
      premises.
             50. It is also not in dispute that the GEHL was then acquired by
      the State by Act of 1975 and the Act of 1980, as a consequence thereof,
      the suit premises stood vested in an authority called the GEHA by
F     operation of law as per Section 3 read with Section 5 of the Act 1980
      with effect from 17.07.1980 and 22.06.1981.
            51. It is also not in dispute that the respondent accepted this change
      of ownership and accordingly started paying monthly rent to the GEHA
      from 1980 as monthly tenant of the GEHA and which they paid till 2005.
G            52. It is also not in dispute that in terms of the notification issued
      by the Governor on 05.10.2005 under Section 3(2) of the Act of 1980,
      the suit premises then stood transferred and vested in the appellant-
      Company (see notification dated 05.10.2005) by operation of law and
      the appellant accordingly became the owner of the suit premises with
      effect from 05.10.2005.
H
        APOLLO ZIPPER INDIA LIMITED v. W. NEWMAN                                   387
         AND CO. LTD. [ABHAY MANOHAR SAPRE, J.]

       53. It is further not in dispute that the GEHA and their lawyer,            A
vide letters dated 24.02.2006 and 28.04.2006, informed the respondent
about the change of ownership of the suit premises and the appellant
acquiring the ownership of the suit premises vide notification dated
05.10.2005.
      54. In our considered opinion, the aforementioned undisputed facts,          B
which are matter of record, are sufficient to hold in the eviction suit that
the appellant became the owner of the suit premises with effect from
05.10.2005.
      55. In our considered view, the respondent also attorned to the
appellant and accepted the ownership of the appellant over the suit                C
premises, which is prima facie proved by the three facts and
circumstances as set out below.
        56. First, when the appellant sent a quit notice dated 17.05.2012
to the respondent under Section 106 of the TP Act determining the tenancy
and calling upon the respondent to pay the arrears of rent and vacate the          D
suit premises, despite receipt of the quit notice, they did not reply to it.
        57. In our view, the respondent ought to have replied to the notice
at the first available opportunity, which they failed to do so. It amounts to
waiver on their part to challenge the invalidity or infirmity of the quit
notice including the ownership issue raised therein.                               E
      58. In the case of Parwati Bai vs. Radhika, AIR 2003 SC 3995,
the question arose as to whether the tenancy was terminated in
accordance with the provisions of Section 106 of the TP Act. The
defendant despite receiving the notice from the plaintiff did not reply to
it.                                                                                F
        59. This Court held that if the defendant does not raise any objection
to the validity of quit notice at the first available opportunity, the objection
will be deemed to have been waived. The following Para 6 of the decision
is apposite which reads as under:
       “6. The singular question to be examined in the present                     G
       case is whether the tenancy was terminated in accordance
       with the provisions of Section 106 of the Transfer of
       Property Act. The receipt of notice by the defendant is
       admitted in the written statement. The defendant has not
       raised any specific objection as to the validity of the notice.
                                                                                   H
388             SUPREME COURT REPORTS                             [2018] 3 S.C.R.


A            An objection as to invalidity or infirmity of notice under
             Section 106 of the TP Act should be raised specifically and
             at the earliest; else it will be deemed to have been waived
             even if there exists one. It cannot, therefore, be said that
             the notice in the present case suffered from any infirmity. A
             copy of the notice was exhibited and proved by the plaintiff
B
             as Ext. P-4.”
            60. Second, the respondent by letters dated 13.06.2006, 27.06.2006,
      05.07.2006 and 11.07.2006, sent to the appellant on the question of
      ownership of the suit premises and payment of rent had expressed their
      willingness to attorn and continue the tenancy with the appellant and
C     also offered to pay rent to the appellant. (See pages 198 & 199 of the
      SLP Paper Book-order of the Single Judge)
             61. Third, the respondent in their civil suit (No.1183 of 2012) filed
      against the appellant in Paras 15, 17, 18 and relief clause (e) of the plaint
      admitted the ownership of the appellant over the suit premises and went
D     to the extent of seeking the mandatory injunction against the appellant
      directing them to accept the monthly rent of the suit premises from the
      respondent.
             62. In other words, reading of the aforementioned paras in the
      respondent’s plaint including the relief clause (e) would go to show that
E     the respondent was all along willing to accept and indeed actually accepted
      the ownership of the appellant over the suit premises and, therefore,
      sought mandatory injunction against the appellant to accept them as
      tenant. The conduct of the respondent, therefore, disentitles them to
      now raise a new plea questioning the title of the appellant over the suit
F     premises and a plea of attornment. Both, in our opinion, are wholly
      misconceived pleas and, therefore, deserve to be rejected.
             63. As mentioned above, the title of the landlord over the tenanted
      premises in a suit for eviction cannot be examined like a title suit. Similarly,
      the attornment can be proved by several circumstances including taking
G     into consideration the conduct of the tenant qua landlord.
             64. The aforesaid three circumstances, in our opinion, are,
      therefore, more than sufficient to record a finding that the appellant was
      prima facie able to prove their title over the suit premises so also was
      able to prove the factum of “attornment” made by the respondent in
      relation to the suit premises in appellant’s favour thereby entitling the
H
       APOLLO ZIPPER INDIA LIMITED v. W. NEWMAN                                 389
        AND CO. LTD. [ABHAY MANOHAR SAPRE, J.]

appellant to determine the contractual tenancy which was devolved upon          A
them by operation of law.
       65. In the light of the foregoing discussion, we are unable to agree
with the view taken by the Division Bench that there was some dispute
or confusion as to who is the owner of the suit premises. In our view,
there was neither any dispute and nor confusion and nor any ambiguity           B
over the question of title over the suit premises which needed any
elaborate inquiry.
      66. This takes us to examine the next question as to what was the
monthly rent of the suit premises – whether Rs.1600/- towards monthly
rent and Rs.38,400/- towards maintenance charges as claimed by the              C
respondent or Rs.40,000/- as claimed by the appellant.
        67. In our view, the monthly rent of the suit premises was Rs.40,000/
-. It is for the reason that Firstly, the respondent had been paying
Rs.40,000/- per month to their previous landlord – GEHA for a long
time; Second, the bifurcation of Rs.40,000/- was being sought by the            D
respondent so that they may get the benefit of applicability of the Tenancy
Act to defend therein tenant’s right which they failed to prove and lastly,
the rent receipts filed by the parties clearly proved that the monthly rent
of the suit premises was Rs.40,000/- and not Rs.1600/-.
        68. This takes us to examine the next question as to whether the        E
suit filed by the appellant invoking the provisions of the TP Act was
maintainable or it should have been filed under the Tenancy Act.
       69. In our opinion, the appellant rightly filed the suit by invoking
the provisions of the TP Act. It is for the reason that once the monthly
rent of the suit premises was found to exceed the limit prescribed under        F
Section 3(f) of the Tenancy Act, the provisions of the Tenancy Act had
no application to the suit premises.
      70. Section 3(f) of the Tenancy Act says that any premises let out
for non-residential purpose when carries more than Rs. 10,000/- as
monthly rent in the areas included within the limits of Municipal
                                                                                G
Corporation, the provisions of the Tenancy Act will not apply.
       71. In the case at hand, the monthly rent of the suit premises was
Rs.40,000/- and, therefore, the appellant was well within their right to
file summary suit against the tenant’s eviction and for recovery of the
arrears of rent by taking recourse to the provisions of the TP Act read
                                                                                H
390             SUPREME COURT REPORTS                           [2018] 3 S.C.R.


A     with Rule 1(B) of The Rules applicable to the suits filed on the original
      side jurisdiction of the High Court at Calcutta.
              72. In the light of the foregoing discussion, we are of the view
      that the respondent failed to raise any arguable and substantial defense
      as required under Rule 6 read with Rule 9 of the Rules and the three
B     grounds raised for seeking leave to defend the suit were only for the
      sake of raising and had no factual or/and legal foundation to stand for
      trial in the suit and hence no leave can be granted to the respondent on
      such grounds under Rule 9 of the Rules. It was, therefore, rightly declined
      by the Single Judge but wrongly granted by the Division Bench.
C            73. In view of the foregoing discussion, the appeal succeeds and
      is allowed. Impugned judgment is set aside and that of the Single Judge
      is restored.
             74. The respondent is granted six months’ time to vacate the suit
      premises subject to the condition that they shall deposit the entire arrears
D     of rent up to date at the rate of Rs.40,000/- per month within one month
      from the date of this order and also deposit six months’ rent by way of
      damages for use and occupation within one month in advance.
             75. The entire amount, as directed above, be deposited with the
      High Court. The appellant shall be entitled to withdraw the sum so
E     deposited. The respondent shall also furnish the undertaking in this Court
      within two weeks stating therein that they will vacate the suit premises
      within six months from the date of this order and will also deposit the
      sum, as directed above, in time. Failure to file the undertaking and deposit
      of the amount will entitle the appellant to execute this order against the
      respondent on the expiry of one month.
F
             76. As a consequence of this judgment, all the pending cases
      mentioned above such as, C.S. No.53/2007, Title Suit No.1183/2012,
      and W.P. No. 569 of 2004 which were filed by the parties against each
      other in various Courts in relation to the suit premises and, if pending till
      date, stand accordingly disposed of.
G

      Kalpana K. Tripathy                                            Appeal allowed.




H