REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICITION

CIVIL APPEAL NO.      10053           OF 2010 (Arising out of SLP (C) No.34267 of 2009)

Shibani Basu …Appellant

Versus

Sandip Ray …Respondent

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. This  appeal  by  special  leave  is  directed  against  a  

judgment and order dated 16th September, 2009 passed by  

a Single Judge of the High Court of Calcutta whereby Second

Appeal No.29 of 2006 filed by the appellant herein has been  

dismissed and the judgment and order passed by the First  

Appellate Court dismissing the suit for eviction filed by the  

appellant affirmed.   

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  

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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.  

4. The  suit  was  contested  by  the  defendant-respondent  

who  filed  a  written  statement  in  which  the  material  

averments made by the plaintiff  were dealt  with.  What is  

significant  is  that  the  defendant-respondent  admitted that  

he was inducted by the plaintiff in the suit premises in terms  

of  an agreement of  tenancy and that  he was holding the  

premises as a month to month tenant not only in respect of  

the  attached  verandah  comprising  kitchen  space  but  the  

bath room privy for his exclusive use. The allegation that the  

tenant  had created  nuisance  or  caused annoyance  to  the  

landlady  or  made  any  illegal  construction  in  the  suit  

premises or that the property was required by the plaintiff  

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for her own use and occupation or re-construction were also  

denied.  

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 22nd 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  

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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.

6. We have heard learned counsel for the parties. In paras  

1 and 2 of the plaint, the plaintiff-appellant had asserted her  

being the landlady and the suit premises having been let out  

to the defendant-tenant on a month to month tenancy on a  

rental  of  Rs.500/-  p.m.  payable  according  to  the  English  

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Calendar month without any electricity for a period of five  

years only. That assertion was made ostensibly because of  

Clause  3  of  the  Agreement  of  Tenancy  which  is  in  the  

following terms:

“3. That  the  monthly  rent  in  respect  of  the  aforesaid  tenancy  has  been  fixed  at  Rs.500/-  (Rupees five hundred) payable by the Second Party  to  the  Landlady/First  Party  within  the  15th day  of  next month according to the English Calendar.”

7. Since,  however,  the  Agreement  of  Tenancy  was  

unregistered though the same was compulsorily registerable  

we  cannot  make  much  use  of  the  above  stipulation.  The  

question regarding validity of the notice of termination can  

nevertheless  be  examined  by  reference  to  the  averments  

made in the pleadings of the parties. Paras 1 and 2 of the  

plaint are in this regard relevant and may be extracted:

“1.   That the Plaintiff is the owner and Land-Lady of  the  premises  No.6A,  Chandi  Bari  Street,  Police  Station Burtolla, Calcutta 700006.

2.    That the Defendant is a monthly tenant under  the Plaintiff in respect of two rooms, with attached  verandah  consisting  of  kitchen  space  along  with  

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common user of bath room and privy on the Ground  Floor at premises No.6-A Chandi Bari Street, Police  Station Burtolla, Calcutta 700 006 on monthly rental  of  Rs.500/-  payable  according  to  English  Calendar  month without any Electricity, only for 5 years.”

8. What is noteworthy in the averments made in para 2  

above is that the respondent is a month to month tenant  

and the rental of Rs.500/- p.m. is payable according to the  

English Calendar month. In reply to para 2 the defendant,  

inter  alia,  admitted  that  he  was  inducted  as  a  month  to  

month  tenant  by  the  plaintiff.  The  defendant  gave  an  

explanation as regards the description of the premises let  

out  to  him which  is  not  material  for  the  purpose  of  the  

present appeal. Para 5 of the written statement in which the  

defendant-respondent  answered  the  averments  made  in  

paras 1 and 2 of the plaint extracted above is as under:  

“5.   That with reference to the statements made in  paragraphas 1 and 2 of the plaint are the matters of  record and as such the plaintiff is to prove the same.  The  defendant  states  that  he  never  inspected  the  title deed in respect of the suit building but several  suits and proceedings were/are pending between the  plaintiff  and her daughter Purnima Roy in different  courts.  It is a fact that the defendant was inducted  by the plaintiff  on 11.9.93 at the suit premises by  

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executing an Agreement of tenancy on the terms and  conditions  are  mentioned  therein  and  the  said  tenancy  agreement  be  treated  as  a  part  of  the  written statement.  It is true that at the time of the  filing of the suit the defendant is a monthly tenant  under  the  plaintiff  but  not  in  respect  of  the  suit  premises  only.   The  defendant  states  that  the  defendant is a tenant in respect of two rooms with  attached verandah consisting of kitchen space along  with  bath  and  privy  for  exclusive  use  of  the  defendant  but  not  common.  The  plaintiff  in  pursuance  of  clause  5  of  the  said  agreement  of  Tenancy could not provide separate bath and privy  according  to  the  plaintiff,  due  to  the  resistance  occasioned  by  her  daughter  Purnima  Roy  and  her  family  members  within  one  year,  as  a  result  the  plaintiff  granted the existing bath and privy to the  defendant for his exclusive use and enjoyment but  the  defendant  could  not  use  and  enjoy  the  same  exclusively for the said Purnima Roy and her family  members who are also using the same bath room  and as the Plaintiff is not residing at the suit building  and there is a strange relation between the Plaintiff  and  the  said  Purnima  Roy,  the  Plaintiff  has  been  residing at 3, Parry Mohan Sur Lane, Calcutta, which  is  situated  near  the  suit  building,  she  has  no  personal need of the aid bath and privy.”

9. Then  comes  the  averment  made  by  the  plaintiff-

appellant  in  para  3  of  the  plaint  in  which  the  plaintiff  

asserted that the tenancy of the defendant had been duly  

determined by service of a composite notice issued under  

Section 13(6) of the West Bengal Premises Tenancy Act and  

Section  106  of  the  Transfer  of  Property  Act  asking  the  

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defendant to vacate and deliver the possession of the suit  

premises before the expiry of the month of February 2000.  

The reply to the said averment is found in para 6 of the  

written statement where the defendant has dealt with paras  

3, 4 and 5 of the plaint together in the following words:

“6. That with reference to the allegations made in  paragraph  3,  4  and 5  of  the  plaint  the  defendant  denies the same.  The defendant specifically denies  that  the  tenancy  of  the  defendant  has  duly  been  determined by the ejectment notice dated 14.1.2000  or any such notice.  So far as knowledge and the  memory  of  the  defendant  never  received  the  ejectment notice by putting his signature on the A/D  card  on  15.1.2000  or  any  date.   The  defendant  states that the alleged ejectment notice,  if  any, is  not legal, valid and sufficient and the entire tenancy  of the defendant never been determined by any such  notice  dated  14.1.2000  and  the  relationship  of  landlord  and  tenant  in  between  the  plaintiff  and  defendant  is  still  in  existence  and  as  such  the  question of deliver up the vacant possession to the  plaintiff  does  not  or  cannot  arise  at  all,  and  the  payment of any mesne profits does not arise.”

10. It is evident from a plain reading of the assertions in  

the plaint and the written statement extracted above that  

the  defendant  did  not  question  the  facts  material  to  the  

creation of the tenancy nor was it disputed that the tenancy  

was a month to month tenancy on payment of  a  rent  of  

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Rs.500/- for every English Calendar month. It is true that  

the defendant-respondent had disputed the service of  the  

notice terminating the tenancy of the defendant as also its  

validity and sufficiency but it is equally true that the legality  

of the notice was not assailed on the ground that the notice  

did not conform to the month of tenancy. As a matter of fact  

the assertion made by the appellant that the monthly rental  

of Rs.500/- was payable according to the “English Calendar  

Month”  was  not  denied  by  the  defendant  in  the  written  

statement nor was any suggestion to the contrary made as  

was  sought  to  be  done  at  a  later  stage  of  the  litigation  

between the parties. Such being the position it was for all  

intents  and  purposes  agreed  and  accepted  between  the  

parties that the rent settled for the demised premises was  

payable  according  to  the  English  Calendar  month.  That  

incidentally explains the reason why no issue was framed by  

the Trial Court as regards the month of tenancy. Issue no.6  

only  related  to  the  validity  of  the  notice  of  termination,  

which had to be answered on the admitted premise that the  

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tenancy was on a month to month basis  and the rent of  

Rs.500/-  p.m.  was  payable  according  to  the  English  

Calendar month.

11. The Trial Court rightly examined the question of legality  

of  the service  of  the  notice  on the  basis  of  the  available  

material and the pleadings on the subject and came to the  

conclusion that the notice in question received by Smt. Malti  

Roy  wife  of  defendant-tenant  was  duly  served  upon  the  

defendant on the 15th January, 2000.  The Trial Court further  

held that the ejectment notice having been served on 15th  

January, 2000, the defendant had one month’s clear time till  

the end of February, 2000 to vacate the premises and to  

deliver the possession thereof to the plaintiff.   Issue no.6  

was  accordingly  answered  in  favour  of  the  plaintiff  and  

against the defendant-respondent. The First Appellate Court,  

however,  took a contrary view. It  held that the notice of  

termination of tenancy was not valid as it did not end with  

the month of  tenancy of the defendant.  Relying upon the  

stipulation  contained  in  the  tenancy  agreement  the  First  

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Appellate Court held that the tenancy in the instant case had  

started on the 11th day of the English Calendar month and  

that  in order to be legally  valid  the notice  of  termination  

ought to have demanded delivery of possession by the 11th  

and not the 29th February, 2000. The notice was accordingly  

held to be invalid and the suit filed by the appellant liable to  

be dismissed. In taking that view Appellate Court failed to  

appreciate that even when the unregistered agreement of  

tenancy had been executed on 11th of September, 1993 the  

same  did  not  mean  that  the  month  of  tenancy  would  

commence from the 11th of every succeeding month, over  

the  period  for  which  the  same  was  created.  The  First  

Appellate Court also failed to appreciate that even when the  

rent  note/agreement  of  tenancy  was  executed  on  a  date  

other than the first of English or any other calendar month  

the  parties  were  always  free  to  agree  that  the  month  of  

tenancy would commence from any other date including the  

1st day of the succeeding month. That there was a specific  

averment made in the plaint to the effect that the rent for  

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the premises was payable monthly according to the English  

Calendar was also overlooked by the First Appellate Court.  

That the said averment had not been disputed by the tenant  

was also not noticed by the First Appellate Court and even  

by the High Court.  These facts were important and held the  

key to the determination of the question whether the notice  

had validly terminated the tenancy. The High Court had in  

the  first  order  passed  by  it  correctly  held  the  notice  of  

termination of tenancy to be legally valid. After the matter  

was  remanded  back  to  it  to  consider  the  effect  of  non-

registration  of  the  rent  note/agreement  of  tenancy  it  has  

taken a view that has not appealed to us.  It is true that the  

non-registration of the rent note does not debar the use of a  

document  that  is  compulsorily  registerable  for  collateral  

purposes but that aspect would in the instant case pale into  

insignificance keeping in view the state of pleadings on the  

question  of  month  of  tenancy  and  the  legal  implications  

thereof.   

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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.        

……………………………J. (MARKANDEY KATJU)

……………………………J. New Delhi (T.S. THAKUR) November 26, 2010

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