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

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: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 Kolkataer referred toIt is situated in Old Court 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 CompanyThe 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, was let out by GEHL, a century back, to the respondent forIn the year 1975, the State of West Bengal passed an ActGreat Eastern Hotel (Taking Over of Management) Act, 1975 (Act XXXII ofthe ActThe Act 1975 was passed to provide for taking over of the management 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 State of West Bengal on the expiry of five years in 1980Great Eastern Hotel (Acquisition of Undertaking) Act, 1980 (Act No XXVII ofthe ActThe Act 1980 was passed for the acquisition of the undertaking of the GEHL.11. On 18.06.1981, the State Government issued a notification under Section 3(1) of80 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) of80 for better and efficient management and administration of the GEH, and directed therein that the undertaking of the GEHL shall stand transferred to and vest in the Great Eastern Hotel Authority (forconstituted under Section 5 (1) of3. Consequent upon enacting of80 and issuance of the aforementioned notification underThe 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) of80 and directed therein that all the fixed and 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 the05. This is how the appellant became the absolute owner 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 ownership and assets of GEHA to the appellant with effectincluding 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,the TPand terminated thetenancy 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 page180 of SLPorder of the Single Judge).19. This led to filing of the summary suit being Civil Suit No.201/2012 by the appellant against the respondent on the original side of the High Court at Calcutta claiming therein arrears of rentthe 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 XIIIB) of the Rules of the High Court at Calcutta (original side), 1914 (for. 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.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.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 ofct 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 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 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 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 thesummary suit.25. The respondent, however, raised essentially three grounds to oppose thesuit 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 oft, is not maintainable. According to the respondent, the suit should have been filed under the West Bengal Premises Tenancy Act, 1997 (for>) 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/Second, the respondent has not attorned to the appellant inasmuch as it is also not clear as to who is the owner of the suit premises, viz., theor Bharat Hotels limited and, therefore, the 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 theownership 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/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/, 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 leave to defend to the respondent and decreed thesuit 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, 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 oft, that the monthly rent of the suit premises isthat the respondent has attorned to the 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 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 theappeal, set aside the order of the Single Judge and granted unconditional leave to defend the suit to the respondent 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 theor the other Company,i.e., M/s Bharat Hotels Ltd.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.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.

Reasoning:
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.