M/S K.B.Saha And Sons Pvt. Ltd vs M/S Development Consultant Ltd

2.The facts leading to the filing of these two appeals are narrated in a nutshell as follows:

1210/- from September, 1985. The appellant alleged that the memorandum dated 30th of March, 1976 specifically provided that if the respondent intended to use the suit premises for any purpose other than providing residential accommodation to its named officer Mr. Keshab Das and members of his family, the respondent would have to seek a written consent from the appellant bringing the change of purpose by a notice.

3. By a letter dated 6th of March, 1992, the respondent informed the appellant that Mr. 3 Keshab Das had vacated the suit premises and that it wanted to make repairs and to allot the same to another employee to which the appellant objected and replied by a letter dated 12th of March, 1992 that the respondent had no right to allot the suit premises to another employee and, therefore, must surrender the same once vacated by Mr. Keshab Das. However, the appellant was informed by the respondent that they would not surrender the suit premises and shall carry out the repair work in it. In this backdrop, the aforesaid Title Suit No. 19/92 was filed by the appellant for declaration and permanent injunction that as per the terms of the Memorandum of Agreement dated 30th of March, 1976, the respondent had no right to allot the suit premises to any other employee after the same was vacated by Mr. Keshab Das and members of his family. By an interim order passed on 13th of March, 1992 in the aforesaid suit, the Assistant 4 District Judge, 9th Court at Alipore had passed an order of injunction restraining the respondent from allowing any other person except Mr. Das to occupy the suit premises. This interim order was made final on 2nd of September, 1992. On 18th of March, 1995, a notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 (in short "the Act") was served on the respondent asking them to vacate the suit premises and on failure of the respondent to vacate the suit premises as desired in the notice, another suit was filed by the appellant being Title Suit No. 39/95 praying for ejectment of the respondent from the suit premises. The aforesaid suit was brought by the appellant with similar allegations as contained in Title Suit No. 19/92 and it was alleged, inter alia, that although the respondent was bound to vacate the suit premises after Mr. Das had vacated the same, yet the respondent had not vacated 5 the suit premises and, therefore, the appellant was constrained to file the aforesaid suit for eviction of the respondent and damages and consequential relief. The respondent entered appearance and contested both the suits by filing written statements. In the written statements, it was the defence of the respondent that the respondent was in urgent need of rented accommodation for its officer and, therefore, they hurriedly put their signatures on the agreement dated 30th of March, 1976. The respondent further alleged that the tenancy was taken by them for providing residential accommodation to its officer Mr. Keshab Das who was only an officer of the respondent and it was the respondent who was the tenant of the suit premises and not the named officer Mr. Keshab Das. Therefore, according to the respondent, even after the suit premises was vacated by Mr. Das, the tenancy of the 6 respondent continued and it was still continuing. The allegation of the appellant that the respondent had no right to allow another officer to occupy the suit premises was misconceived and baseless. It was further alleged in the written statements that the respondent had duly informed the appellant that the employee of the respondent i.e. Mr. Das had left the suit premises and that they were going to allot the suit premises to another officer. It was also asserted that since it was the respondent who was the tenant under the appellant and paid the rent to the appellant, such tenancy was protected by the provisions of the Act. It was further the case of the respondent that the tenancy agreement entered into by the parties was illegal and invalid and such an agreement was against the Statute. Accordingly, in both the written statements, the respondent asserted that neither any order of 7 injunction could be passed against them nor could the suit be decreed in favour of the appellant directing eviction of the respondent from the suit premises. By a common judgment dated 11th of November, 1998, the suits of the appellant were dismissed.

10. On the aforesaid findings arrived at by the Trial Court, both the suits were dismissed and the High Court on the same lines had affirmed the findings of the trial court and held that no ground was made out by the appellant to evict the respondent from the suit premises.

26. Therefore, in the present case, we are of the view that although the premises was leased out exclusively for the named officer of the respondent, the fact that it was subsequently used for the residence of some other officer of the respondent would not constitute `change 41 of user' so as to be hit by Section 108

(o) of the Transfer of Property Act.

29.Secondly, we are of the view that although the suit premises was leased out exclusively for the named officer of the respondent, the fact that the respondent sought to use it for some other officer would not constitute "Change of User"

30.No other point was raised by the learned counsel for the appellant and accordingly, we do not find any merit in this appeal and the appeal is therefore dismissed.

31.Since the suits have been dismissed and no argument was advanced in respect of the other appeal i.e. the appeal in respect of the injunction suit, the said appeal shall also stand dismissed.

32. Since the appeals have been dismissed, all the interlocutory applications, if any, now pending before this Court have become infructuous and accordingly, they are 44 disposed of as infructuous. There will be no order as to costs.