Case: APOLLO ZIPPER INDIA LIMITED Vs. W. NEWMAN AND CO. LTD

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 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. 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 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 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 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 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 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 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 appellant to determine the contractual tenancy which was devolved upon 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 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 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 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 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 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 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 tenants eviction and for recovery of the arrears of rent by taking recourse to the provisions of the TP Act read 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]41. Having heard the learned counsel for the parties and on perusal 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 thesuit for eviction 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 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.It is a settled principle of law laid down by this Court that 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 like what he is required to prove in a title suit.It is equallylaw with regard to attornment that it does not create any new tenancy but once the factum of attornment is 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 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 andof 1980, as a consequence thereof, the suit premises stood vested in an authority called the GEHA by operation of law as per Section 3 read with Section 5 of80 with effectand 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 2005.52. It is also not in dispute that in terms of the notification issued by the Governor on 05.10.2005 under Section 3(2) ofof 1980, the suit premises then stood transferred and vested in the(see notification dated 05.10.2005) by operation of law and the appellant accordingly became the owner of the suit premises with effect from 05.10.2005.53. It is further not in dispute that the GEHA 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 dated 05.10.2005.54. In our considered opinion, the aforementioned 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 05.10.2005.55. In our considered view, the respondent also attorned to the appellant and accepted the ownership of the appellant over the suit 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 ofct 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.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.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 also offered to pay rent to the appellant. (See pages 198 & 199 of the SLP Paperof 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 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 theplaint including the relief clause (e) would go to show that 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 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 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 factumby the respondent in relation to the suit premises infavour thereby entitling the appellant to determine the contractual tenancy which was devolved upon 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 over the question of title over the suit premises which needed any elaborate inquiry.In our view, the monthly rent of the suit premises was Rs.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 respondent so that they may get the benefit of applicability of the Tenancy Act to defend thereinright 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.40,000/9. In our opinion, the appellant rightly filed the suit by invoking the provisions oft. It is for the reason that once the monthly rent of the suit premises was found to exceed the limit prescribed under 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 forpurpose when carries more than Rs. 10,000/as monthly rent in the areas included within the limits of Municipal 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 theeviction and for recovery of the arrears of rent by taking recourse to the provisions ofct read 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 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.