APOLLO ZIPPER INDIA LIMITED versus W. NEWMAN AND CO. LTD.

[2018] 3 S.C.R.

APOLLO ZIPPER INDIA LIMITED

W. NEWMAN AND CO. LTD.

(Civil Appeal No. 4249 of 2018)

APRIL 20, 2018

[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]

Rules of High Court at Calcutta (Original Side), 1914:

Chapter XIII-A-Rules 1(B), 6 and 9 – Leave to defend –CPermissibility – Suit premises let out to defendant (tenant) – Byoriginal owner (a Company) – At monthly rent of Rs. 40,000/- –Later Company was taken over by the State Government by statutoryenactments – Consequently the ownership of suit premisestransferred to the Authority of the State – Thereafter, the State vestedall the assets of the Authority with the appellant-company – TherebyDappellant-Company became absolute owner of the suit premises –Quit Notice was sent to the tenant by the appellant-company u/s.106 of Transfer of Property Act terminating the tenancy anddemanding arrears of rent and vacant possession – Finding no replyto the notice, appellant-company filed summary eviction suit –ERespondent-tenant sought leave to defend the suit on three grounds(i) monthly rent of suit premises being Rs. 1600/-, suit was liable tobe filed under Tenancy Act and not under Transfer of Property Act;(ii) ownership of the plaintiff was not clear moreso for want ofattornment made by the tenant of plaintiff’s ownership (iii) there isdispute as regards the amount of monthly rent – Single Judge ofFHigh Court declining to grant leave to defend decreed the suit – Inappeal, Division Bench of High Court granted unconditional leaveto defend the suit – On appeal, held: Change of ownership fromoriginal owner to the State and then from State to the plaintiff-company is matter of record – In the facts of the case, ownershipGof the plaintiff was also attorned and accepted by the defendant-tenant – Therefore, the tenant cannot raise plea questioning thetitle of the plaintiff and the plea of attornment – The evidence onrecord proves that the monthly rent of the premises was Rs. 40,000/- and not Rs. 16,00/- – Since the monthly rent of the premisesexceeded the limit prescribed u/s. 3(f) of Tenancy Act, the TenancyH

Act would have no application to the premises – Therefore, summarysuit taking recourse to Transfer of Property Act r/w r.1(B) of Rules,is maintainable – Defendant-tenant failed to raise any arguableand substantial defence as required u/r. 6 r/w r.9 – Rent Controland Eviction – Transfer of Property Act, 1882 – s. 106 – West BengalPremises Tenancy Act, 1997 – s. 3(f) – Great Eastern Hotel (TakingOver of Management) Act, 1975 – Great Eastern Hotel (Acquisitionof Undertaking) Act, 1980 – ss. 3(1) 3(2) and 5(11).

Evidence:

Standard of proof – To prove title – In eviction suit – Held: Ineviction suit landlord is not expected to prove his title like what heis required to prove in title suit – Rent Control and Eviction.

Rent Control and Eviction:

Eviction suit – Challenge to the title of the landlord – Scopeof – Held: By virtue of s. 116 of Evidence Act, tenant is estoppedfrom challenging the title of his landlord – However, tenant is entitledto challenge the derivative title of an assignee of the originallandlord – However, this right of the tenant is subject to the caveatthat tenant has not attorned to the assignee – If the tenant pays rentto the assignee or otherwise accepts the assignee’s title, it results increation of attornment, which, in turn deprives the tenant to challengethe derivative title – Evidence Act, 1872 – s. 116.

Allowing the appeal, the Court

HELD: 1. The grounds, which were pressed in service bythe respondent, to seek leave to defend the suit are neitherarguable nor have any prima facie merit therein and, therefore,there does not arise any need to have any trial in the suit onmerits on such grounds. [Para 43] [385-D]

2. In an eviction suit filed by the landlord against the tenantunder the Rent Laws, when the issue of title over the tenantedpremises is raised, the landlord is not expected to prove his titlelike what he is required to prove in title suit. [Para 45] [385-F]

Sheela & Ors. v. Firm Prahlad Rai Prem Prakash (2002)(3) SCC 375 : [2002] 2 SCR 177; Boorugu Mahadev& Sons & Anr. v. Sirigiri Narasing Rao & Ors. (2016) 3SCC 343 : [2016] 1 SCR 530 – relied on.

A3. Though by virtue of Section 116 of the Evidence Act, thetenant is estopped from challenging the title of his landlord, yetthe tenant is entitled to challenge the derivative title of anassignee of the original landlord of the demised property in anaction brought by the assignee against the tenant for his evictionunder the Rent laws. However, this right of tenant is subject toBone caveat that the tenant has not attorned to the assignee. Ifthe tenant pays rent to the assignee or otherwise accepts theassignee’s title over the demised property, then it results increation of the attornment which, in turn, deprives the tenant tochallenge the derivative title of the landlord. [Para 47][386-B-C]

CBismillah De (dead) by Legal Representatives v. MajeedShah (2017) 2 SCC 274 : [2016] 8 SCR 719 – reliedon.

4. Attornment does not create any new tenancy, but oncethe factum of attornment is proved then by virtue of suchDattornment, the old tenancy continues. Attornment can be provedby several circumstances including taking into consideration theconduct of the tenant qua landlord. [Paras 48, 63] [386-D; 388-G]

Uppalapati Veera Venkata Satyanarayanaraju & Anr.Ev. Josyula Hanumayamma & Anr. AIR 1967 SC 174 :[1962] SCR 910 – relied on.

5. It is not in dispute that the Company (The original ownerof the suit premises) who had created the original contract oftenancy with the respondent was acquired by the State by TheFGreat Eastern Hotel (Taking Over of Management) Act, 1975and the The Great Eastern Hotel (Acquisition of UndertakingAct, 1980, as consequence thereof, the suit premises stoodvested in the State Authority by operation of law as per Section 3read with Section 5 of the Act 1980 with effect from 17.07.1980Gand 22.06.1981. It is also not in dispute that the respondent(defendant) accepted this change of ownership and accordinglystarted paying monthly rent to the State Authority from 1980 asits monthly tenant and which they paid till 2005. It is also not indispute that in terms of the notification issued by the Governoron 05.10.2005 under Section 3(2) of the Act of 1980, the suitHpremises then stood transferred and vested in the appellant-

Company and the appellant accordingly became the owner of thesuit premises with effect from 05.10.2005. It is further not indispute that the State Authority and their lawyer, vide lettersdated 24.02.2006 and 28.04.2006, informed the respondent aboutthe change of ownership of the suit premises and the appellantacquiring the ownership of the suit premises vide notificationdated 05.10.2005. These undisputed facts, which are matter ofrecord, are sufficient to hold in the eviction suit that the appellantbecame the owner of the suit premises with effect from05.10.2005. [Paras 49-54] 386-E-H; 387-A-B]6. When the appellant sent quit notice to the respondentunder Section 106 of the Transfer of Property Act, 1882determining the tenancy and calling upon the respondent to paythe arrears of rent and vacate the suit premises, despite receiptof the quit notice, they did not reply to it. It amounts to waiver ontheir part to challenge the invalidity or infirmity of the quit noticeincluding the ownership issue raised therein. The respondentby letters dated 13.06.2006, 27.06.2006, 05.07.2006 and11.07.2006, sent to the appellant on the question of ownership ofthe suit premises and payment of rent had expressed theirwillingness to attorn and continue the tenancy with the appellantand also offered to pay rent to the appellant. The respondentalso in their civil suit filed against the appellant admitted theownership of the appellant and went to the extent of seeking themandatory injunction against the appellant directing them toaccept the monthly rent of the suit premises from the respondent.The conduct of the respondent, therefore, disentitles them tonow raise new plea questioning the title of the appellant overthe suit premises and plea of attornment. Both are whollymisconceived pleas and, therefore, deserve to be rejected. [Paras56, 57, 60, 61 and 62] [387-D-E; 388-C-D, F]

Parwati Bai v. Radhika AIR 2003 SC 3995 – relied on.

7. Thus the appellant was prima facie able to prove theirtitle over the suit premises so also was able to prove the factumof “attornment” made by the respondent in relation to the suitpremises in appellant’s favour thereby entitling the appellant todetermine the contractual tenancy which was devolved upon themby operation of law. [Para 64] [388-H]

A8. The monthly rent of the suit premises was Rs.40,000/-.The respondent had been paying Rs.40,000/- per month to theirprevious landlord – for long time; the bifurcation of Rs.40,000/-was being sought by the respondent so that they may get thebenefit of applicability of the Tenancy Act to defend thereintenant’s right which they failed to prove. The rent receipts filedBby the parties clearly proved that the monthly rent of the suitpremises was Rs.40,000/- and not Rs.1600/-. [Para 67] [389-D]

9. The appellant rightly filed the suit by invoking theprovisions of the Transfer of Property Act. The monthly rent ofthe suit premises was Rs.40,000/- Once the monthly rent of theCsuit premises was found to exceed the limit prescribed underSection 3(f) of West Bengal Premises Tenancy Act, 1997 theprovisions of the Tenancy Act had no application to the suitpremises. Therefore, the appellant was well within their right tofile summary suit against the tenant’s eviction and for recovery

Dof the arrears of rent by taking recourse to the provisions of theTP Act read with Rule 1(B) of The Rules of High Court of Calcutta(Original Side), 1914, applicable to the suits filed on the originalside jurisdiction of the High Court at Calcutta. [Paras 69-71] [389-F-H; 390-A]

E10. The respondent failed to raise any arguable andsubstantial defense as required under Rule 6 read with Rule 9 ofthe Rules and the three grounds raised for seeking leave to defendthe 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 noleave can be granted to the respondent on such grounds underFRule 9 of the Rules. It was, therefore, rightly declined by theSingle Judge of High Court. [Para 72] [390-B]

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4249of 2018.

From the Judgment and Order dated 13.06.2017 of the DivisionBench of the High Court of Calcutta in APD No. 510 of 2015.

Mukul Rohatgi, Ranjeet Kumar, Sr. Advs., Saurabh Kirpal,Ms. A. Malhotra, Prince Anthony, Ms. Tamali Wad, Advs. for theAppellant.

Jaideep Gupta, Sr. Adv., Parijat Sinha, C. K. Jain, Prateek Jalan,Ms. Reshmi Rea Sinha, Rudra Dutta, Advs. for the Respondent.

The Judgment of the Court was delivered by

ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal is directed against the final judgment and decreedated 13.06.2017 passed by the High Court at Calcutta in APD No. 510of 2015 whereby the Division Bench of the High Court allowed theappeal filed by the respondent herein and set aside the order dated14.10.2015 passed by the Single Judge of the High Court and grantedunconditional leave to the respondent to defend the suit and remandedthe suit for its trial on merits.

3. The short issue involved in this appeal relates to grant of leaveto the respondent (defendant) to defend the summary eviction suit filedby the appellant against them in relation to the suit premises.

4. In order to appreciate the issue involved, it is necessary to setout the background facts which led to filing of the summary eviction suitleading 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 thedefendant in summary suit out of which this appeal arises.

7. There is Hotel in the city of Kolkata called “Great EasternHotel” (hereinafter referred to as “GEH”). It is situated in Old CourtHouse Street (Hemanta Basu Sarani), Kolkata. The Hotel has been inexistence for the last more than century. It is heritage Hotel. TheHotel building has several floors and consists of several shops, businesspremises including the Hotel. The building and the Hotel was owned andrun by the Company called “Great Eastern Hotel Limited” (hereinafterreferred to as “GEHL” ).

A8. The shops and business premises in the Hotel building are mostlyon the ground floor and were let out by GEHL to different persons astheir tenants. One such business premises (No.18) measuring around6000 sq. feet, which is the subject matter of this appeal (hereinafterreferred to as the “suit premises”), was let out by GEHL, centuryback, to the respondent for non-residential purpose. The monthly rent ofBthe suit premises at the relevant time was Rs.40,000/-.

9. In the year 1975, the State of West Bengal passed an Actcalled “The Great Eastern Hotel (Taking Over of Management) Act,1975 (Act XXXII of 1975)” (hereinafter referred to as “the Act 1975”).The Act 1975 was passed to provide for taking over of the managementCof the undertaking of the GEHL as defined under Section 2(d) for alimited period of five years in public interest and also to secure its propermanagement. Pursuant thereto, the State Government took over themanagement of the undertaking of the GEHL.

10. The Act of 1975 was followed by another Act passed by theDState of West Bengal on the expiry of five years in 1980 called “TheGreat Eastern Hotel (Acquisition of Undertaking) Act, 1980 (Act NoXXVII of 1980)” (hereinafter referred to as “the Act 1980”). The Act1980 was passed for the acquisition of the undertaking of the GEHL.

11. On 18.06.1981, the State Government issued notificationEunder Section 3(1) of the Act 1980 whereby the undertaking of GEHLstood transferred to and vested absolutely in the State Government witheffect from 17.07.1980.

12. The Governor issued notification under Section 3 (2) of theAct 1980 for better and efficient management and administration of theFGEH, and directed therein that the undertaking of the GEHL shall standtransferred to and vest in the Great Eastern Hotel Authority (for short,“GEHA”) constituted under Section 5 (1) of the Act 1980.

13. Consequent upon enacting of the Act 1980 and issuance ofthe aforementioned notification under the Act of 1980, the StateGGovernment (GEHA) became the owner of the GEHL (which includedthe land, Hotel building, assets and the management of GEHL) byoperation of law.

14. As consequence thereof, the respondent, who was originallythe tenant of GEHL, became the tenant of the State Government, i.e.,

GEHA on the same terms and conditions with effect from 17.07.1980.The respondent too accepted this transfer of ownership of the suitpremises and accordingly started paying monthly rent of Rs.40,000/- toGEHA which they paid till 2005.

15. On 05.10.2005, the Governor issued another notification underSection 3(2) of the Act 1980 and directed therein that all the fixed andcurrent assets of the GEHA be vested in the Company called “ApolloZipper India Limited” (appellant herein).

16. As result of issuance of this notification, all the assets (fixedand current) of GEHA stood vested in the appellant-Company with effectfrom 05.10.2005. This is how the appellant became the absolute ownerof GEHA including the suit premises let out to the respondent.

17. By letter dated 24.02.2006, GEHA informed the respondentabout the transfer of their entire assets to the appellant with effect from05.10.2005 followed by another letter dated 28.04.2006 of the Advocatesof GEHA sent to the respondent informing them about the transfer ofownership and assets of GEHA to the appellant with effect from05.10.2005 including transfer of the suit premises to the appellant.

18. On 17.05.2012, the appellantsent quit notice to therespondent under Section 106 of the Transfer of Property Act, 1882(hereinafter referred to as “the TP Act”) and terminated the respondent’stenancy with effect from 03.06.2012 and demanded arrears of rent andvacant possession of the tenanted premises from the respondent. Onreceipt of the quit notice, the respondent did not reply to it. (See page180 of SLP- order 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 theHigh Court at Calcutta claiming therein arrears of rent (Rs.39,20,000/-),the vacant possession of the suit premises and mesne profits at the rateof Rs.40,000/- per day.

20. The suit was filed under Chapter XIII- (Rule 1-B) of theRules of the High Court at Calcutta (original side), 1914 (for short, “TheRules”). The appellant filed evidence by way of affidavit in support oftheir case. The respondent on being served of the summons of the suitalso filed affidavit opposing the suit of the appellant.

21. It may be mentioned here that the appellant filed another CivilSuit No.53/2007 against the respondent in the High Court at Calcutta forpermanent injunction restraining them from carrying out any changes inthe nature and character of the suit premises and from transferring andalienating the suit premises to any third party.

B22. Similarly, the respondent also filed one suit (Title Suit No.1183/2012) in the City Civil Court at Calcutta against the appellant for adeclaration that the quit notice dated 17.05.2012 sent by the appellant tothe respondent under Section 106 of the TP Act is void, that the respondentis monthly tenant of the suit premises, and also prayed for issuance ofmandatory injunction against the appellant, who was made defendantCNo.1 in the said suit, and Bharat Hotels Ltd., GEHA and the State ofWest Bengal as defendant Nos. 2, 3 and 4 respectively, directing themto accept the monthly rent from the respondent(plaintiff) at the rate ofRs.1600/- in respect of the tenanted premises. This suit is pending.23. The respondent also filed Writ Petition No.569/2004 in theDHigh Court at Calcutta challenging therein the rate of monthly rent ofthe suit premises.

24. Coming now to the facts of the summary suit filed by theappellant (C.S. No.201 of 2012) out of which this appeal arises, theappellant (plaintiff) claimed that they are entitled to decree for evictionEagainst the respondent from the suit premises and also decree forarrears of rent and mesne profits under Rule 6 of the Rules because therespondent has failed to raise any arguable and substantial defense onmerits in support of their case in answer to the appellant’s summary suit.

25. The respondent, however, raised essentially three grounds toFoppose the appellant’s suit by way of defense and sought leave to defendthe suit on the said grounds.

26. First, the suit, as filed by the appellant by taking recourse tothe provisions of the TP Act, is not maintainable. According to therespondent, the suit should have been filed under the West BengalGPremises Tenancy Act, 1997 (for short, “the Tenancy Act”) becausethe monthly rent of the suit premises is less than the limit prescribedunder Section 3(f) of the Tenancy Act (monthly rent is Rs.1600/- whereasthe limit prescribed is Rs.10,000/-.)

27. Second, the respondent has not attorned to the appellantHinasmuch as it is also not clear as to who is the owner of the suit premises,

viz., the appellant-Company or Bharat Hotels limited and, therefore, theappellant is required to prove their title over the suit premises. It is moreso for want of any attornment made by the respondent of the appellant’sownership 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 maintenancecharges to the landlord. It was contended that since there is dispute asto whether the monthly rent is Rs.40,000/- or Rs.1600/-, the same alsoneeds an elaborate trial on merits in the suit.

29. The Single Judge, by order dated 14.10.2015, declined to grantleave to defend to the respondent and decreed the appellant’s suit bypassing an eviction decree against the respondent in relation to the suitpremises. The Single Judge held that none of the grounds raised by therespondent to seek leave to defend the suit are prima facie arguableand nor have any merit and nor these grounds constitute any substantialdefense, which may require an elaborate trial on such grounds and,therefore, no case is made out to grant any leave to defend the suit tothe respondent.

30. In other words, the Single Judge held, that the summary suit ismaintainable under the provisions of the TP Act, that the monthly rent ofthe suit premises is Rs.40,000/-, that the respondent has attorned to theappellant, that the appellant has prima facie proved their title over thesuit premises, that the provisions of the Tenancy Act has no applicationbecause the monthly rent of the suit premises is above the prescribedlimit of Rs.10,000/- and lastly, to record these findings, no elaborate trialin the suit is required inasmuch as such findings can be recorded on thebasis of the documents filed by the parties.

31. The respondent felt aggrieved and filed appeal before theDivision Bench of the High Court. By impugned judgment, the DivisionBench allowed the respondent’s appeal, set aside the order of the SingleJudge and granted unconditional leave to defend the suit to the respondentand remanded the suit for its trial on merits.

32. The Division Bench was of the view that there is some disputeregarding the title over the suit premises as to who is the owner of thesuit premises, namely, whether the appellant-Company or the otherCompany,i.e., M/s Bharat Hotels Ltd.

CDEF

33. In other words, the Division Bench held that the question oftitle over the suit premises needs to be gone into detail in the suit with aview to find out as to who is the actual owner of the suit premises andhence an arguable case in defense has been made out by the respondentwhile seeking leave to defend the summary suit.

34. The plaintiff (appellant) felt aggrieved and filed this appeal byway of special leave against the judgment of the Division Bench in thisCourt.

35. Heard Mr. Mukul Rohtagi and Mr. Ranjeet Kumar, learnedsenior counsel for the appellant and Mr. Jaideep Gupta, learned seniorCcounsel for the respondent.

36. Mr. Mukul Rohatgi, learned senior counsel for the appellant(plaintiff) while assailing the legality and correctness of the impugnedjudgment, mainly reiterated the same submissions, which were urged bythe appellant before the two Courts below in support of their case.

D37. In substance, his submission was that the reasoning and theconclusion arrived at by the Single Judge is just, proper and legal andhence the order of the Single Judge deserves to be restored by settingaside the impugned judgment.

38. Learned counsel urged that none of the three grounds raisedEby the respondent for grant of leave to defend the suit were eitherarguable or had any prima facie merit therein. In other words, thesubmission was that all the three grounds were raised for the sake ofraising having no arguable and substantial defense whether on facts orin law and, therefore, Single Judge was justified in declining to grantleave to defend the suit to the respondent and was justified in passingFdecree for eviction against the respondent.

39. On merits, learned counsel pointed out with reference to eachground that the documents on record would prima facie show that firstly,the monthly rent was Rs.40,000/-, Secondly, the appellant was the ownerof the suit premises, thirdly, the respondent had duly attorned to theGappellant and fourthly, the suit was rightly filed by invoking the provisionsof the TP Act because the provisions of the Tenancy Act had noapplication to the suit premises due to monthly rent of the suit premisesexceeding the limit specified under Section 3 (f) of the Tenancy Act.

40. In reply, Mr. Jaideep Gupta, learned senior counsel for therespondent supported the impugned judgment and contended that nocase is made out to interfere in the impugned judgment. Learned counselthen elaborated his submission in support of the impugned judgment andprayed for dismissal of the appeal.

41. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeal, set asidethe impugned judgment and restore the order of the Single Judge.

42. In our considered opinion, the reasoning and the conclusionarrived at by the Single Judge while declining to grant leave to defendthe suit to the respondent and decreeing the appellant’s suit for evictiondeserves to be restored as against the impugned judgment passed by theDivision Bench.

43. In other words, we are of the considered opinion that thegrounds, which were pressed in service by the respondent, to seek leaveto defend the suit are neither arguable nor have any prima facie merittherein and, therefore, there does not arise any need to have any trial inthe suit on merits on such grounds. This we say for the following reasons.

44. The first question that arises for consideration in this appeal iswhether the respondent attorned to the appellant or whether the appellantis required to prove their title over the suit premises or whether thereexists any doubt or confusion over the issue of title of the suit premisesso as to grant leave to defend to the respondent to probe these questionselaborately on merits in the summary suit filed by the appellant againstthe respondent for eviction.

45. It is settled principle of law laid down by this Court that in aneviction suit filed by the landlord against the tenant under the Rent Laws,when the issue of title over the tenanted premises is raised, the landlordis not expected to prove his title like what he is required to prove in titlesuit.

46. In other words, the burden of proving the ownership in aneviction suit is not the same like title suit. (See Sheela & Ors. vs.Firm Prahlad Rai Prem Prakash, 2002 (3) SCC 375, Para 10 at page383 and also Boorugu Mahadev & Sons & Anr. vs. Sirigiri NarasingRao & Ors. 2016 (3) SCC 343, Para 18 at page 349 ).

A47. Similarly, the law relating to derivative title to the landlord andwhen the tenant challenges it during subsistence of his tenancy in relationto the demised property is also fairly well settled. Though by virtue ofSection 116 of the Evidence Act, the tenant is estopped from challengingthe title of his landlord, yet the tenant is entitled to challenge the derivativetitle of an assignee of the original landlord of the demised property in anBaction brought by the assignee against the tenant for his eviction underthe Rent laws. However, this right of tenant is subject to one caveatthat the tenant has not attorned to the assignee. If the tenant pays rent tothe assignee or otherwise accepts the assignee’s title over the demisedproperty, then it results in creation of the attornment which, in turn,Cdeprives the tenant to challenge the derivative title of the landlord. [SeeBismillah De (dead) by Legal Representatives vs. Majeed Shah.2017 (2) SCC 274 Para 24]

48. It is equally well-settled law with regard to attornment that itdoes not create any new tenancy but once the factum of attornment isDproved 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 theoriginal owner of the suit premises was GEHL, who had created theEoriginal contract of tenancy with the respondent in relation to the suitpremises.

50. It is also not in dispute that the GEHL was then acquired bythe State by Act of 1975 and the Act of 1980, as consequence thereof,the suit premises stood vested in an authority called the GEHA byFoperation of law as per Section 3 read with Section 5 of the Act 1980with effect from 17.07.1980 and 22.06.1981.

51. It is also not in dispute that the respondent accepted this changeof ownership and accordingly started paying monthly rent to the GEHAfrom 1980 as monthly tenant of the GEHA and which they paid till 2005.G52. It is also not in dispute that in terms of the notification issued

G52. It is also not in dispute that in terms of the notification issuedby the Governor on 05.10.2005 under Section 3(2) of the Act of 1980,the suit premises then stood transferred and vested in the appellant-Company (see notification dated 05.10.2005) by operation of law andthe appellant accordingly became the owner of the suit premises witheffect from 05.10.2005.H

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 respondentabout the change of ownership of the suit premises and the appellantacquiring the ownership of the suit premises vide notification dated05.10.2005.

54. In our considered opinion, the aforementioned undisputed facts,which are matter of record, are sufficient to hold in the eviction suit thatthe appellant became the owner of the suit premises with effect from05.10.2005.

55. In our considered view, the respondent also attorned to theappellant and accepted the ownership of the appellant over the suitpremises, which is prima facie proved by the three facts andcircumstances as set out below.

56. First, when the appellant sent quit notice dated 17.05.2012to the respondent under Section 106 of the TP Act determining the tenancyand calling upon the respondent to pay the arrears of rent and vacate thesuit 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 noticeat the first available opportunity, which they failed to do so. It amounts towaiver on their part to challenge the invalidity or infirmity of the quitnotice including the ownership issue raised therein.

58. In the case of Parwati Bai vs. Radhika, AIR 2003 SC 3995,the question arose as to whether the tenancy was terminated inaccordance with the provisions of Section 106 of the TP Act. Thedefendant despite receiving the notice from the plaintiff did not reply toit.

59. This Court held that if the defendant does not raise any objectionto the validity of quit notice at the first available opportunity, the objectionwill be deemed to have been waived. The following Para 6 of the decisionis apposite which reads as under:

“6. The singular question to be examined in the presentcase is whether the tenancy was terminated in accordancewith the provisions of Section 106 of the Transfer ofProperty Act. The receipt of notice by the defendant isadmitted in the written statement. The defendant has notraised any specific objection as to the validity of the notice.

AAn objection as to invalidity or infirmity of notice underSection 106 of the TP Act should be raised specifically andat the earliest; else it will be deemed to have been waivedeven if there exists one. It cannot, therefore, be said thatthe notice in the present case suffered from any infirmity. Acopy of the notice was exhibited and proved by the plaintiffBas Ext. P-4.”

60. 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 ofownership of the suit premises and payment of rent had expressed theirwillingness to attorn and continue the tenancy with the appellant andCalso offered to pay rent to the appellant. (See pages 198 & 199 of theSLP Paper Book-order of the Single Judge)

61. Third, the respondent in their civil suit (No.1183 of 2012) filedagainst the appellant in Paras 15, 17, 18 and relief clause (e) of the plaintadmitted the ownership of the appellant over the suit premises and wentDto the extent of seeking the mandatory injunction against the appellantdirecting them to accept the monthly rent of the suit premises from therespondent.

62. In other words, reading of the aforementioned paras in therespondent’s plaint including the relief clause (e) would go to show thatEthe respondent was all along willing to accept and indeed actually acceptedthe ownership of the appellant over the suit premises and, therefore,sought mandatory injunction against the appellant to accept them astenant. The conduct of the respondent, therefore, disentitles them tonow raise new plea questioning the title of the appellant over the suitFpremises and plea of attornment. Both, in our opinion, are whollymisconceived pleas and, therefore, deserve to be rejected.

63. As mentioned above, the title of the landlord over the tenantedpremises in suit for eviction cannot be examined like title suit. Similarly,the attornment can be proved by several circumstances including takingGinto consideration the conduct of the tenant qua landlord.

64. The aforesaid three circumstances, in our opinion, are,therefore, more than sufficient to record finding that the appellant wasprima facie able to prove their title over the suit premises so also wasable to prove the factum of “attornment” made by the respondent inrelation to the suit premises in appellant’s favour thereby entitling theH

appellant to determine the contractual tenancy which was devolved uponthem by operation of law.

65. In the light of the foregoing discussion, we are unable to agreewith the view taken by the Division Bench that there was some disputeor 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 ambiguityover the question of title over the suit premises which needed anyelaborate inquiry.

66. This takes us to examine the next question as to what was themonthly rent of the suit premises – whether Rs.1600/- towards monthlyrent and Rs.38,400/- towards maintenance charges as claimed by therespondent or Rs.40,000/- as claimed by the appellant.

67. In our view, the monthly rent of the suit premises was Rs.40,000/-. It is for the reason that Firstly, the respondent had been payingRs.40,000/- per month to their previous landlord – GEHA for longtime; Second, the bifurcation of Rs.40,000/- was being sought by therespondent so that they may get the benefit of applicability of the TenancyAct to defend therein tenant’s right which they failed to prove and lastly,the rent receipts filed by the parties clearly proved that the monthly rentof the suit premises was Rs.40,000/- and not Rs.1600/-.

68. This takes us to examine the next question as to whether thesuit filed by the appellant invoking the provisions of the TP Act wasmaintainable or it should have been filed under the Tenancy Act.

69. In our opinion, the appellant rightly filed the suit by invokingthe provisions of the TP Act. It is for the reason that once the monthlyrent of the suit premises was found to exceed the limit prescribed underSection 3(f) of the Tenancy Act, the provisions of the Tenancy Act hadno application to the suit premises.

70. Section 3(f) of the Tenancy Act says that any premises let outfor non-residential purpose when carries more than Rs. 10,000/- asmonthly rent in the areas included within the limits of MunicipalCorporation, the provisions of the Tenancy Act will not apply.

71. In the case at hand, the monthly rent of the suit premises wasRs.40,000/- and, therefore, the appellant was well within their right tofile summary suit against the tenant’s eviction and for recovery of thearrears of rent by taking recourse to the provisions of the TP Act read

Awith Rule 1(B) of The Rules applicable to the suits filed on the originalside jurisdiction of the High Court at Calcutta.

72. In the light of the foregoing discussion, we are of the viewthat the respondent failed to raise any arguable and substantial defenseas required under Rule 6 read with Rule 9 of the Rules and the threeBgrounds raised for seeking leave to defend the suit were only for thesake of raising and had no factual or/and legal foundation to stand fortrial in the suit and hence no leave can be granted to the respondent onsuch grounds under Rule 9 of the Rules. It was, therefore, rightly declinedby the Single Judge but wrongly granted by the Division Bench.

C73. In view of the foregoing discussion, the appeal succeeds andis allowed. Impugned judgment is set aside and that of the Single Judgeis restored.

74. The respondent is granted six months’ time to vacate the suitpremises subject to the condition that they shall deposit the entire arrearsDof rent up to date at the rate of Rs.40,000/- per month within one monthfrom the date of this order and also deposit six months’ rent by way ofdamages for use and occupation within one month in advance.

75. The entire amount, as directed above, be deposited with theHigh Court. The appellant shall be entitled to withdraw the sum soEdeposited. The respondent shall also furnish the undertaking in this Courtwithin two weeks stating therein that they will vacate the suit premiseswithin six months from the date of this order and will also deposit thesum, as directed above, in time. Failure to file the undertaking and depositof the amount will entitle the appellant to execute this order against therespondent on the expiry of one month.

76. As consequence of this judgment, all the pending casesmentioned above such as, C.S. No.53/2007, Title Suit No.1183/2012,and W.P. No. 569 of 2004 which were filed by the parties against eachother in various Courts in relation to the suit premises and, if pending tilldate, stand accordingly disposed of.

Kalpana K. Tripathy

Appeal allowed.