Judgment:
IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction Original Side Before: The Hon’ble Justice Debangsu Basak C.S.No.83 of 1977 Maheswar Pramanik & ORS.versus Satkari Sadhukhan & ORS.For the Plaintiff : Mr.Sabyasachi Chowdhury, Advocate Mr.Lalratan Mondal, Advocate Mr.Shiladitya Bose, Advocate For the Defendant No.6 : MRS.Suparna Mukherjee, Advocate Mr.Ambar Banerjee, Advocate MRS.Leena Panja, Advocate MRS.Amrita Panja, Advocate Heard on : February 27, 2014 Judgment on : March 07, 2014 DEBANGSU BASAK, J.
The continued occupation of Premises No.67/45-B, Strand Road, Kolkata by the defendants gave rise to the instant suit.
The owner of the premises was Kolkata Port Trust.
Lalita Sadhukhan was the tenant of Kolkata Port Trust.
The original plaintiff took lease of the said premises form Lalita Sadhukhan.
The original plaintiff gave sub-lease of the said premises to the Defendant No.6 by a deed of sub-lease dated December 16, 1965 on and from February 9, 1965.
The Defendant No.6 was a partnership firm of which Lakshan, Ram, Bharat, Manick, Ratan and Mangal Chandra Sadhukhan were the owneRs.The sub-lease was in respect of Plot No.161A, Premises No.67/45 B, Stand Road, Kolkata.
The sub-lease was for a period of 10 years commencing on and from June 29, 1964 at a monthly rent of Rs.75/- be paid on or before the 7th day of each succeeding Bengali Calendar month inclusive of all rates and taxes.
The deed provided that, in the event the sub-lessees did not deliver peaceful and vacant possession of the demised premises on the expiry or sooner determination of the lease, the sub-lessees would be liable to pay damages at the rate of Rs.12.50 for each day until the sub-lessees were evicted in due couRs.of law.
By a registered memorandum of agreement dated December 16, 1965 entered into between the same parties it was recorded that, the Defendant No.6 was carrying on business at the demised premises and that, in lieu of the rent as mentioned in the deed of sub-lease the plaintiff would receive 50% of the net-profit of the business of the Defendant No.6.
The plaintiffs claimed that, the defendants failed and neglected to give accounts.
The plaintiffs also claimed that, the sub-lease expired by efflux of time.
With the sub-lease expiring by efflux of time the plaintiff became entitled to immediate possession of the demised premises.
The plaintiff caused issuance of two letters dated April 22, 1975 and April 28, 1975 calling upon the defendants to vacate the suit premises.
The defendants replied through their Advocate’s letter dated May 11, 1975 claiming monthly tenancy under Lalita Sadhukhan.
The defendants failed and neglected to make over vacant and peaceful possession of the demised premises to the plaintiff.
The defendants did not render accounts.
The plaintiff, therefore, instituted the present suit.
During the pendency of the instant suit, various parties died.
Their heirs and legal representatives were duly brought on record.
Written statement on behalf of the defendants was filed.
In such written statement the defendants contended that, the sub-lease was for a period of 10 years with an option to renew the sub-lease for a further period of 5 yeaRs.The deed of sub-lease as well as the memorandum of agreement dated December 16, 1965 was admitted.
The defendant denied failure to submit true and faithful accounts to the plaintiff.
They claimed that they offered inspection of all relevant books of the business of the Defendant No.6 to the plaintiff.
They claimed that, the original plaintiff took inspection of such accounts and of the relevant books of the Defendant No.6.
According to the defendants, the plaintiff granted receipts after inspecting the books of accounts of the Defendant No.6.
The claim of the plaintiffs that, no accounts of the Defendant No.6 were furnished, according to the defendants, was without any basis.
The defendants claimed that, the plaintiff from time to time received a sum of Rs.1,93,925.60p.
Such sum was paid either to the plaintiff directly or to the Income Tax authorities for and on behalf of the plaintiff.
There were large outstandings of the plaintiff to the Income Tax department.
The defendants received notices from the Income Tax authorities on which they paid on behalf of the plaintiff.
The defendant also contended that, the plaintiff’s lease dated December 13, 1965 with the superior landlord expired on February 8, 1975.
Consequently, the plaintiff ceased to be a lessee of the premises.
According to the defendants, the lease in favour of the plaintiff having expired, the partners of the Defendant No.6 approached the original plaintiff and the superior landlord Smt.
Lalita Sadhukhan.
According to the defendants, the superior landlord agreed to allow the Defendant No.6 to occupy the premises as a monthly tenant under her.
After such agreement, the Defendant No.6 made over cheques drawn in favour of the superior landlord and continued to remain in possession of the premises as a monthly tenant.
In the written statement, however, it was admitted that the cheques taken in the name of the superior landlord was not encashed.
According to the defendants, therefore, they continued to remain in occupation as a monthly tenant under the superior landlord.
Maheswar Pramanik adduced evidence as the plaintiff witness No.1.
The defendants produced the accountant of the Defendant No.6 as their witness.
Various documents were relied upon in evidence by both the parties.
On behalf of the plaintiff, it was contended that, the plaintiff was entitled to a decree for eviction with the expiry of the term in the deed of sub-lease.
It was contended that, the deed of sub-lease was originally for a period of 10 yeaRs.Even with the option for renewal of another 5 years being shown to be exercised, such period also expired.
Consequently, the plaintiff was entitled to an order of eviction since the defendants failed, neglected and refused to vacate the suit premises.
It was contended that, the status of the plaintiff as the landlord of the defendants did not change.
No document was shown in evidence, to establish, that the plaintiff accepted the so-called change any status.
The defendants reliance on the so-called eviction decree dated March 17, 1978 was misplaced.
The said decree did not change the relationship between the parties to the instant suit.
The plaintiff contended that, the defendant could not establish a new tenancy coming into being between the defendants and superior landlord.
It was also submitted that, the defendants having acknowledged the profit of the Defendant No.6 to be in excess of Rs.2,50,000/-, the defendants were liable to pay rent at least at such rate.
Few questions and answers given by the accountant of the Defendant No.6 were referred to.
It was submitted that, the Court in absence of any evidence of the profit of the Defendant No.6 being disclosed should draw adveRs.inference.
The accounts of the Defendant No.6 were within the personal knowledge of the defendants.
They were obliged to produce such accounts.
The defendants did not produce such accounts.
In absence of such accounts being produced, the Court ought to make adveRs.presumption against the defendants.
The plaintiffs referred to the Order dated August 17, 1977 which required the defendants to submit accounts.
However, it was fairly submitted by the plaintiff that, the defendants complied with the direction contained in the Order dated August 19, 1977.
The plaintiff relied upon 63 Calcutta Weekly Notes page 192 (National Jewellery Works & Ors.v.Diana Printing Works LTD.& Anr.) and All India Reporter 1985 Calcutta page 37 (Ganesh Trading Co.PVT.Ltd.) for the proposition that the defendants were liable to pay the plaintiff the rent for the period they were in occupation even if the status of the plaintiff as landlord changed from a particular date.
On the quantification of mesne profit, it was contended on behalf of the plaintiff that, the plaintiff was entitled to mesne profit.
The defendants did not pay rent to the plaintiff since February 1975.
The plaintiff contende