Shibani Basu vs Sandip Ray

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 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 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 permanent nature without 3 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 also sought on the ground that the suit premises was required for rebuilding.

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 22 nd February, 2005. The defendant was given three months time to vacate 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 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 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 5 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 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 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.

12. In the result this appeal succeeds and is hereby allowed. The impugned order passed by the High Court of 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.

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 Court within two months from today.