Dulal Choudhary & Ors vs Hirak Roy Chowdhury & Ors

Sri Rai Mohan Chaudhury and his wife Smt. Jyotsna Chowdhury filed a suit against Smt. Sulata Ghosh for her eviction from premises bearing No.20-B, Ballygunje, Station Road, Calcutta, on the grounds of default, damage to the premises, their bonafide need and sub-letting to Sri Bireswar Roy Chowdhury without their knowledge and consent. The defendant contested the suit by alleging that there did not exist landlord-tenant relationship between the parties. She also denied the allegations of default, damage to the property and sub-letting. She pleaded that the premises were let out to her husband late Sri Jitendra Nath Ghosh by the erstwhile owner, Sri Janak Nath Sen and after disposal of the suit premises by Sri Sen, her husband became tenant under Sri Dulal Chowdhury and Sri Sunil Chowdhury. She also claimed her brother, Sri Bireswar Roy Chowdhury along with members of his family were residing in suit premises since 1947 and that there was no question of sub-letting.

The trial Court decided the issue of default against the plaintiffs but decreed the suit on the ground of sub-letting. The judgment and decree of the trial Court were confirmed by the lower appellate Court. However, the High Court allowed the Second Appeal filed by respondent No.1 and dismissed the suit for eviction after holding that the suit had abated because steps were not taken for bringing her legal representatives on record within the period of limitation. So far as the finding recorded by the Trial Court and confirmed by the Appellate Court on the question of subletting is concerned, the High Court was of the view that the tenant, i.e., Sulata Ghosh, could not have been penalised for the act of sub-letting of her husband. Hence, this appeal by special leave.

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Accordingly, the appeal is allowed, impugned judgment rendered by the High Court is set aside and the second appeal filed by Respondent No.1-Hirak Roy Chowdhury before the High Court is dismissed. The respondents are, however, granted time till 31st October, 2009, to vacate the premises in question upon filing usual undertaking in this Court within four weeks from today. It is directed that in case the respondents fail to vacate the premises in question within the aforesaid time, it would be open to the decree holder to file an execution petition for delivery of possession and in case such a petition has been already filed, an application shall be filed therein to the effect that the respondents have not vacated the premises in question within the time granted by this Court. In either eventuality, the Executing Court is not required to issue any notice to the respondents. The Executing Court will see that delivery of possession is effected within a period of fifteen days from the date of filing of the execution petition or the application aforementioned. In case for delivery of possession any armed force is necessary, the same shall be deputed by the Superintendent of Police within forty eight hours from the date requisition is received therefor. It is also directed that in case anybody else, other than the respondents, is found in possession, he shall also be dispossessed from the premises in question.

No costs.