SHIBANI BASUversusSANDIP RAY

                   [2010] 14 (ADDL.) S.C.R. 932


A                          SHIBANI BASU
                                  V.
                           SANDIP RAY
                 (Civil Appeal No. 10053 of 2010)
                       NOVEMBER 26, 2010
B
         [MARKANDEY KATJU AND T.S. THAKUR, JJ.]

         West Bengal Premises Tenancy Act - s. 13(6) - Notice
    for termination of tenancy - Validity of - Eviction suit -
C   Decreed by trial court - First appellate court, however, set
    aside the decree holding that the notice of termination of
    tenancy was not valid as it did not end with the month of
    tenancy - High Court affirmed the decree of trial court -
    Respondent-tenant filed SLP - Matter remitted back to High
D   Court to consider the validity of the notice of termination of
    tenancy having regard to the fact that the rent note I
    agreement of tenancy was unregistered - 1High Court affirmed
    the order of first appellate court holding that the notice of
    termination of tenancy.fell short of the requirement stipulated
E   by s. 13(6) of the Tenancy Act - On appeal, held: Non-
    registration of the rent note !agreement of tenancy was
    rendered insignificant in view of the pleadings of the parties
    on the question of month of tenancy - The defendant did not
    question the facts material to the creation of the tenancy -
F   Specific averment in the plaint to the effect that the rent for
    the premises was payable monthly according to the English
    Calendar was overlooked by the first appellate court - The
    ejectment notice having been served on 15th January, 2000,
    the defendant-tenant had one month's clear time till the end
    of February, 2000 to vacate the premises and to deliver the
G   possession thereof to the plaintiff - The first appellate court
    wrongfully held that since the tenancy in the instant case had
    started on the 11th day of the English Calendar month, in
    order to be legally valid, the notice of termination ought to

H                                932
            SHIBANI BASU v. SANDIP RAY                    933

have demanded delivery of possession by the 11th and not         A /
the end of February, 2000 - Even if the unregistered rent note
I agreement of tenancy was executed on a date other than the
first of English or any other calendar month, the parties were
always free to agree that the month of tenancy would
commence from any other date including the 1st day of the        B
succeeding month - Decree passed by trial court restored -
 Transfer of Property Act, 1882 - s.106.

      The plaintiff-appellant filed a suit for eviction and
recovery of possession and mesne profits against the
respondent. The plaintiff claimed that the suit property         C
was let out to the respondent on month to month basis.
The tenancy was, according to the plaintiff, for a period
of five years only and was determined in terms of a notice
issued under Section 13(6) of the West Bengal Premises
Tenancy Act and Section 106 of the Transfer of Property          D
Act. The trial court decreed the suit.

     Aggrieved, the tenant appealed to tlYe first appellate
court, which set aside decree passed by the trial court.
On second appeal, the High Court set aside the order             E
passed by the first appellate court and affirmed the
judgment and decree passed by the trial court. The
respondent-tenant preferred civil appeal by way of
special leave petition which was allowed by this Court
and the matter remitted back to the High Court to consider       F
the validity of the notice of termination having regard to
the fact that the agreement of tenancy executed between
the.parties was an unregistered document. The High
Court, pursuant to the said order, examined the effect of
the unregistered document and held that the same could           G
be used in evidence for a collateral purpose and, when
so used, the notice of termination of tenancy issued on
behalf of t_he landlady fell short of the requirement
stipulated by Section 13(6) of the West Bengal Premises
Tenancy Act. The High Court accordingly dismissed the
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    934    SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.


A appeal and affirmed the dismissal of the suit by the First
  Appellate Court. The appellant filed the instant appeal
  assailing the correctness of the said judgment and order
  of the High Court.

          Allowing the appeal, the Court
B
         HELD:1. The question regarding validity of the notice
    of termination can be examined by reference to the
    averments made in the pleadings of the parties. It is
    evident from a plain reading of the assertions in the plaint
C   and the written statement that the defendant did not
    question the facts material to the creation of the tenancy
    nor was it disputed that the tenancy was a month to
    month tenancy on payment of a rent of Rs.500/- for every
    English Calendar month. It is true that the defendant-
D   respondent had disputed the service of the notice
    terminating the tenancy of the defendant as also its
    validity and sufficiency but it is equally true that the
    legality of the notice was not assailed on the ground that
    the notice did not conform to the month of tenancy. As a
E   matter of fact the assertion made by the appellant that the
    monthly rental of Rs.500/- was payable according to the
    "English Calendar Month" was not denied by the
    defendant in the written statement nor was any
    suggestion to the contrary made as was sought to be
F   done at a later stage of the litigation between the parties.
    Such being the position, it was for all intents and
    purposes agreed and accepted between the parties that
    the rent settled for the demised premises was payable
    according to the English Calendar month. The issue
G   related to the validity of the notice of termination, which
    had to be answered on the admitted premise that the
    tenancy was on a month to month basis and the rent of
    Rs.500/- p.m. was payable according to the English
    Calendar month. [Paras 7, 10] [939-D; 942-A-D; 941-G-H]

H
            SHIBANI BASU v. SANDIP RAY                    935

        2. The trial court rightly examined the question of A
  legality of the service of the notice on the basis of the
  available material and the pleadings on the subject and
  came to the conclusio11 that the notice in question
  received by the wife of defendant-tenant was duly served
  upon the defendant on the 15th January, 2000. The trial B
  court further held that the ejectment notice having been
  served on 15th January, 2000, the defendant had one
  month's clear time till the end of February, 2000 to vacate
  the premises and to deliver the possession thereof to the
  plaintiff. The issue was accordingly answered in favour c
  of the plaintiff and against the defendant-respondent. The
  first appellate court, however, took a contra!'.¥ view. It held
  that the notice of termination of tenancy was not valid as
   it did not end with the month of tenancy of the defend<mt.
   Relying upon the stipulation contained in the tenancy
                                                                  0
  agreement, the first appellate court held that the tenancy
   in the instant case had started on the 11th day of the
   Eng!ish Calendar month and that in order to be legally
  valid, the notice of termination ought to have demanded
   delivery of possession by the 11th and not the 29th
   February, 2000. The notice was accordingly held to be E
 . invalid and the suit filed by the appe.llant liable to be
· dismissed. In taking that view, the appellate court failed
   to appreciate that everi when the unregistered agreement
   of tenancy had been executed on 11th of September,
   1993, the same did not·mean that the month of tenancy F
   would commence from the 11th of every succeeding
   month, over the period for which the same was created.
   The first appellate court also failed to appreciate that even
   when the rent note/agreement of tenancy was executed
   on a date other than the first of English or any other G
   calendar month the parties were always free to. agree that
   the month of tenancy would com111ence from any other
   date including the 1st day of the succeeding month. That
   there was a specific averment made in the plaint to the
   effect that the rent for the premises was payable monthly H
    936    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.

A according to the English Calendar was also overlooked
  by the First Appellate Court. That the said averment had
  not been disputed by the tenant was also not noticed by
  the first appellate court and even by the High Court.
  These facts were important and held the key to the
B determination of the question whether the notice had
  validly terminated the tenancy. The High Court had in the
  first order passed by it correctly held the notice of
  termination of tenancy to be legally valid. After .the matter
  was remanded back to it to consider the effect of non-
e registration of the rent note/agreement of tenancy it has
  taken a view that is not appealing. It is true that the non-
  registration of the rent note does not debar the use of a
  document that is compulsorily registerable for collateral
  purposes but that aspect would in the instant case pale
  into insignificance keeping in view the state of pleadings
0
  on the question of month of tenancy and the legal
  implications thereof. (Para 11] [942-E-H; 943-A-G]

       1.3. The impugned order passed by the High Court
  and that passed by the first appellate court are hereby set
E aside. Consequently, the judgment and decree passed by
  the trial court shall stand restored. [Paras 12] (943-H; 944-
    A]
        CIVIL APPLLATE JURISDICTION : Civil Appeal No.
F   10053 of 2010.

        From the Judgment & Order dated 16.09.2009 of the High
    Court at Calcutta in Second Appeal No. 29 of 2006.
      S.B. Upadhyay, Dharmendra Kumar Sinha, Santosh
G Mishra for the Appellant.

          Pijush K. Roy, Mithilesh Kumar Singh for the Respondent.

          The Judgment of the Court was delivered by

H         T.S. THAKUR, J. 1. Leave granted.
  SHIBANI BASU v. SANDIP RAY [TS. THAKUR, J.]                    937


     2. This appeal by special leave is directed against a               A
judgment and order dated 1.6th September, 2009 passed by
a Single Judge of the High Court of Calcutta whereby Second
Appeal No.29 of 2006 filed by the appellant herein has been
dismissed and the judgment and order passed by the First
Appellate Court dismissing the suit for eviction filed by the            B
appellant affirmed.

       3. The plaintiff-appellant herein filed a suit for eviction and
 recovery of possession and mesne profits against the
 respondent. The plaintiff alleged that the suit property                C
 comprising two rooms with an attached verandah consisting of
 kitchen space situate on the ground floor of No.6-A Chandibari
 Street, Calcutta was let out to the respondent on month to month
 basis. The tenancy was, according to the plaintiff, for a period
 of five years only and was determined in terms of a notice dated
 14th January, 2000 issued under Section 13(6) of the West               D
 Bengal Premises Tenancy Act and Section 106 of the Transfer
 of Property Act. The plaintiff further alleged that the defendant-
 respondent was in default of the payment of rent since the month
 of November 1995. The respondent was also accused of
 committing nuisance and constructing a pucca wall of                    E
 permanent nature without her consent. The plaintiff claimed
 eviction of the respondent-tenant on the above grounds and on
 the ground of reasonable personal requirement of the plaintiff
 and her family members who did not have any alternative
 accommodation for them. The eviction of the respondent was              F
 also sought on the ground that the suit premises was required
.for rebuilding.

     4. The suit was contested by the defendant-respondent
who filed a written statement in which the material averments            G
made by the plaintiff were dealt with. What is significant is that
the defendant-respondent admitted that he was inducted by the
plaintiff in the suit premises in terms of an agreement of tenancy
and that he was holding the premises as a month to month
tenant not only in respect of the attached verandah comprising
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    938   SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.


A kitchen space but the bath room privy for his exclusive use. The
  allegation that the tenant had created nuisance or caused
  annoyance to the landlady or made any illegal construction in
  the suit premises or that the property was required by the
  plaintiff for her own use and occupation or re-construction were
B also denied.

          5. On the pleading of the parties the Trial Court framed as
    many as 13 issues besides three additional issues and
    decreed the suit with cost by its order dated 22nd February,
    2005. The defendant was given three months time to vacate
C   the premises in question. Aggrieved by the said order, the
    tenant appealed to the First Appellate Court who allowed the
    same and set aside the judgment and decree passed by the
    Trial Court. A second appeal was then filed by the appellant-
    herein before the High Court of Calcutta which appeal eventually
D   succeeded and was allowed by the High Court by its order
    dated 16th May, 2008 whereby the judgment and decree
    passed by the Trial Court was affirmed and that passed by the
    First Appellate Court set aside. Aggrieved by the said judgment
    the respondent-tenant preferred Civil Appeal by way of special
E   leave petition (No.2637 of 2009) before this Court which was
    allowed by this Court by an order dated 17th April, 2009 and
    the matter remitted back to the High Court to consider the
    validity of the notice of termination having regard to the fact that
    the agreement of tenancy· executed between the parties was
F   an unregistered document. The High Court has pursuant to the
    said order examined the effect of the unregistered document
    and come to the conclusion that the same could be used in
    evidence for a collateral purpose and when so used the notice
    of termination of tenancy issued on behalf of the landlady fell
G   short of the requirement stipulated by Section 13(6) of the West
    Bengal Premises Tenancy Act. The High Court has accordingly
    dismissed the appeal and affirmed the dismissal of the suit by
    the First Appellate Court. The present appeal assails the
    correctness of the said judgment and order of the High Court.
H
  SHIBANI BASU v. SANDIP RAY [T.S. THAKUR, J.]                939


     6. We have heard learned counsel for the parties. In paras       A
1 and 2 of the plaint, the plaintiff-appellant had asserted her
being the landlady and the suit premises having been let out
to the defendant-tenant on a month to month tenancy on a rental
of Rs.500/- p.m. payable according to the English Calendar
month without any electricity for a period of five years only. That   B
assertion was made ostensibly because of Clause 3 of the
Agreement of Tenancy which is in the following terms:

     "3. That the monthly rent in respect of the aforesaid tenancy
     has been fixed at Rs.500/- (Rupees five hundred) payable         C.
     by the Second Party to the Landlady/First Party within the
     15th day of next month according to.the English Calendar."

    7. Since, however, the Agreement of Tenancy was
unregistered though the same was compulsorily l'egisterable we
cannot make much use of the above stipulation. The question           D
regarding validity of the notice of termination can nevertheless
be examined by reference to the averments made in the
pleadings of the parties. Paras 1 and 2 of the plaint·are in this
regard relevant and may be extracted:
                                                                      E·
     "1. That the Plaintiff is the owner and Land-Lady of the
     premises No.6A, Chandi Bari Street, P·olice Station
     Burtolla, Calcutta 700006.

     2. That the Defendant is a monthly tenant under the Plaintiff
     in respect of two rooms, with attached verandah consisting       F
     of kitchen space along with common user of bath room
     and privy on the Ground Floor at premises No.6-A Chandi
     Bari Street, Police Station Burtolla, Calcutta 700 006 on
     monthly rental of Rs.500/- payable according to English
     Calendar month without any Electricity, or\ly for 5 years."      G

     8. What is noteworthy in the averments made in para 2
above is that the respondent is a month to month tenant and
the rental of Rs.500/- p.m. is payable according to the English
Calendar month. In reply to para 2 the defendant, inter alia,
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    940     SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A admitted that he was inducted as a month to month tenant by
  the plaintiff. The defendant gave an explanation as regards the
  description of the premises let out to him which is not material
  for the purpose of the present appeal. Para 5 of the written
  statement in which the defendant-respondent answered the
B averments made in paras 1 and 2 of the plaint extracted above
  is as under:

          "5. That with reference to the statements made in
          paragraphas 1 and 2 of the plaint are the matters of record
          and as such the plaintiff is to prove the same~ The
c         defendant states that he never inspected the title deed in
          respect of the suit building but several suits and
          proceedings were/are pending between the plaintiff and
          her daughter Purnima Roy in different courts. It is a fact
          that the defendant was inducted by the plaintiff on 11.9.93
D         at the suit premises by executing an Agreement of tenancy
          on the terms and conditions are mentioned therein and the
          said tenancy agreement be treated as a part of the written
          statement. It is true that at the time of the filing of the suit
          the defendant is a monthly tenant under the plaintiff but not
E         in respect of the suit premises only. The defendant states
          that the de.fendant is a tenant in respect of two rooms with
          attached verandah consisting of kitchen space along with
          bath and privy for exclusive use of the defendant but not
          common. The plaintiff in pursuance of clause 5 of the said
F         agreement of Tenancy could ·not provide separate bath
          and privy according to the plaintiff, due to the resistance
          occasioned by her daughter Purnima Roy and her family
          members within one year, as a result the plaintiff granted
          the exJsting bath and privy to the defendant for his
G         exclusive use and enjoyment but the defendant could not
          use and enjoy the same exclusively for the said Purnima
          Roy and her family members who are also using the same
          bath room and as the Plaintiff is not residing at the suit
          building and there is a strange relation between the Plaintiff
H         and the said Purnima Roy, the Plaintiff has been residing
  SHIBANI BASU v. SANDIP RAY [T.S. THAKUR, J.]              941


    at 3, Parry Mohan Sur Lane, Calcutta, which is situated        A
    near the suit building, she has no personal need of the aid
    bath and privy."

     9. Then comes the averment made by the plaintiff-appellant
in para 3 of the plaint in which the plaintiff asserted that the B
tenancy of the defendant had been duly determined by service
of a composite notice issued under Section 13(6) of the West
Bengal Premises Tenancy Act and Section 106 of the Transfer
of Property Act asking the defendant to vacate and deliver the
possession of the suit premises before the expiry of the month C
of February 2000. The reply to the said averment is found in
para 6 of the written statement where the defendant has dealt
with paras 3, 4 and 5 of the plaint together in the following
words:

    "6. That with reference to the allegations made in D
    paragraph 3, 4 and 5 of the plaint the defendant denies
    the same. The defendant specifically denies that the
    tenancy of the defendant has duly been determined by the
    ejectment notice dated 14.1.2000 or any such notice. So .
    far as knowledge and the memory of the defend3nt never E            ~
    received the ejectment notice by putting his signature on
    the AID card on 15.1.2000 or any date. The defendant
    states that the alleged ejectment notice, if any, is not legal,
    valid and sufficient and the entire tenancy of the defendant
    never been determined by any such notice dated F
    14.1.2000 and the relationship of landlord and tenant in
    between the plaintiff and defendant is still in existence and
    as such the question of deliver up the vacant possession
    to the plaintiff does not or cannot arise at all, and the
    payment of any mesne profits does not arise."
                                                                    G
     10. It is evident from a plain reading of the assertions in
the plaint and the written statement extracted above that the
defendant did not question the facts material to the creation of
the tenancy nor was it disputed that the tenancy was a month
to month tenancy on payment of a rent of Rs.500/- for every        H
    942   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A   English Calendar month. It is true that the defendant-respondent
    had disputed the service of the notice terminating the tenancy
    of the defendant as also its validity and sufficiency but it is
    equally true that the legality of the notice was not assailed on
    the ground that the notice did not conform to the month of
B   tenancy. As a matter of fact the assertion made by the appellant
    that the monthly rental of Rs.500/- was payable according to
    the "English Calendar Month" was not denied by the defendant
    in the written statement nor was any suggestion to the contrary
    made as was sought to be done at a later stage of the litigation
c   between the parties. Such being the position it was for all
    intents and purposes agreed and accepted between the
    parties that the rent settled for the demised premises was
    payable according to the English Calendar month. That
    incidentally explains the reason why no issue was framed by
    the Trial Court as regards the month of tenancy. Issue no.6 only
0
    related to the validity of the notice of termination, which had to
    be answered on the admitted premise that the tenancy was on
    a month to month basis and the rent of Rs.500/- p.m. was
    payable according to the English Calendar month.

E       11. The Trial Court rightly examined the question of legality
  of the service of the notice on the basis of the available material
  and the pleadings on the subject and came to the conclusion
  that the notice in question received by Smt. Malti Roy wife of
  defendant-tenant was duly served upon the defendant on the
F 15th January, 2000. The Trial Court further held that the
  ejectment notice having been served on 15th January, 2000,
  the defendant had one month's clear time till the end of
  February, 2000 to vacate the premises and to deliver the
  possession thereof to the plaintiff. Issue no.6 was accordingly
G answered in favour of the plaintiff and against the defendant-
  respondent. The First Appellate Court, however, took a contrary
  view. It held that the notice of termination of tenancy was not
  valid as it did not end with the month of tenancy of the defendant.
  Relying upon the stipulation contained in the tenancy agreement
H the Firnt Appellate Court held that the tenancy in the instant
    SHIBANI BASU v. SANDIP RAY [T.S. THAKUR, J.]            943


  case had started on the 11th day of the English Calendar month A
  and that in order to be legally valid the notice of termination
  ought to have demanded delivery of possession by the 11th and
  not the 29th February, 2000. The notice was accordingly held
  to be invalid and the suit filed by the appellant liable to be
  dismissed. In taking that view Appellate Court failed to 8
  appreciate that even when the unregistered agreement of
  tenancy had been executP.d on 11th of September, ·1993 the
  same did not mean that the month of tenancy would commence
  from the 11th of every succeeding month, over the period for
  which the same was created. The First Appellate Court also       c
  failed to appreciate that even when the rent note/agreement of
  tenancy was executed on a date other than the first of English
  or any other calendar month the parties were always free to
  agree that the month of tenancy would commence from any
  other date including the 1st day of the succeeding month. That 0
  there was a specific averment made in the plaint to the effect
  that the rent for the premises was payable monthly according
  to the English Calendar was also overlooked by the First
  AppE'llate Court. That the said averment had not been disputed
  by the tenant was also not noticed by the First Appellate Court E
  and even by the High Court. These facts were important and
  held the key to the determination of the question whether the
  notice had validly terminated the tenancy. The High Court had
  in the first order passed by it correctly held the notice of
  termination of tenancy to be legally valid. After the matter was
_ remanded back to it to consider the effect of non-registration F
  of the rent note/agreement of tenancy it has taken a view that
  has not appealed to us. It is true that the non-registration of the
  rent note does not debar the use of a document that is
  compulsorily registerable for collateral purposes but that aspect
  would in the instant case pale into insignificance keeping in G
  view the state of pleadings on the question of month of tenancy
  and the legal implications thereof.

      12. In the result this appeal succeeds and is hereby
 allowed. The impugned order passed by the High Court of           H
     944   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A    Calcutta dated 16th September, 2009 and that passed by the
     First Appellate Court dated 30th November, 2005 are hereby
     set aside. Consequently, the judgment and decree passed by
     the Trial Court shall stand restored. Parties shall bear their own
     costs.
·8
            13. We further direct that the respondent shall have time
     till 30th November, 2011 to vacate the premises in question and
     handover the possession of the same to the appellant subject
     to the respondent filing an undertaking on usual terms in this
C    Court within two months from today.

     8.8.8.                                          Appeal allowed.