| SooperKanoon Citation | sooperkanoon.com/852050 |
| Subject | Tenancy |
| Court | Kolkata High Court |
| Decided On | Aug-13-1996 |
| Case Number | F.A. No. 71 of 1990 |
| Judge | Gitesh Ranjan Bhattacharjee and; Devendra Kumar Jain, JJ. |
| Reported in | AIR1997Cal80 |
| Acts | Code of Civil Procedure (CPC), 1908 - Section 96 - Order 26, Rule 9 - Order 39, Rule 7;; West Bengal Premises Tenancy Act, 1956 - Section 13(1);; Transfer of Property Act, 1882 - Sections 106, 108, 111 and 114 |
| Appellant | Allahabad Bank |
| Respondent | Sourendra Nath Shaw and Another |
| Appellant Advocate | Sudhis Dasgupta, ;Ajit Mr. Chakraborty and ;Kanchan Ray, Advs. |
| Respondent Advocate | Sujit Kr. Adhya, ;Bijon Behari Roy and ;Tilak Kr. Nag Choudhury, Advs. |
| Cases Referred | B. S. Venugopal v. State of West Bengal |
Gitesh Ranjan Bhattachar-Jee, J.
1. This appeal is directed against the judgment and decree dated the 14th February, 1989 passed by the Judge, 10th Bench City Civil Court, Calcutta in Ejectment Suit No.813 of 1979, by which the learned trial Court granted a decree in favour of the respondent-plaintiffs for recovery of khaspossession of the suit premises by evicting the appellant-defendant therefrom. The respondents-plaintiff as joint receivers appointed to the estate of a Hindu Deity which included the suit-premises, filed the suit for eviction of the tenant, namely, the appellant-defendant from the suit premises. The landlord-tenant relationship between the parties is not in dispute. The appellant is a Bank, namely, the United Industrial Bank Limited subsequently substituted by Allahabad Bank. There are two rooms in the suit-premises, namely, room Nos. 15 and 16 on the floor of the premises No.24 of the Netaji Subhas Road, Calcutta-1 occupied by the said Bank for office purpose at a rental of Rs. 290.25 paise per month according to the English calendar month. Admittedly, the tenancy is governed by the provisions of the West Bengal Premises Tenancy Act. The suit for eviction was filed on two grounds. The first ground was default in payment of rent which ground however did not materialise as the defendant was found entitled to protection from eviction on that ground. The other ground on which the eviction was sought, was stated in paragraph 6 of the plaint. The case pleaded in the paragraph 6 of the plaint by the plaintiffs is that in or about March, 1977 the defendant without the knowledge and consent of the plaintiffs constructed a bath room and privy inside the demised premises and in construction the said privy the defendant made an opening in the floor and fixed a pan with siphon and latrine pipes therein projecting inside the room below let out to another tenant M/s. A. D. Coomar and Sons. It is further stated in the said paragraph 6 of the plaint that soiled water perculating from the said bath room and privy is causing damage to the properties of the said tenant and that in spite of repeated protests and objections the defendant has not removed the said offending constructions and installation which contravene the provisions of clauses (m) and (p) of Section 108 of the Transfer of Property Act. The respondents-plaintiffs therefore prayed for khas possession of the suit premises. The appellant-defendant contested the suit by filing a written statement. Paragraph 6 of the plaint as mentioned above has been dealt with by the defendant in paragraph 12 of the written statement. It is stated by thedefendant in paragraph 12 of the written statement that the allegations contained in paragraph 6 of the plaint are baseless, motivated and have been made with some ulterior motive and the same are denied. It is further denied in the said paragraph 12 of the written statement that without the knowledge and consent of the plaintiff a bath-room and privy has been constructed inside the tenancy or any opening of the floor was made by the defendant to fix a pan in the bath-room and privy as alleged or at all. It is also denied that there has been any contravention of the provisions of clauses (m) and (p) of Section 108 of the Transfer of Property Act as alleged or at all. In the trial Court an Engineer Commissioner was appointed by the Court on the application of the plaintiffs for making an inspection at the locale and for submission of report. In due course the Commissioner, after inspection, submitted his report before the trial Court. The learned Court below on consideration of the evidence on record including the report of the Commissioner held that the defendant made opening in the floor and fixed a pan with siphon and latrine pipes projecting inside the room below and further held that the defendant was guilty of committing mischief under clause (m) of Section 108 of the T.P. Act and found the defendant liable to eviction on that ground. The learned Court below however held that the plaintiffs miserably failed to substantiate the allegation about commission of mischief of clause (p) of Section 108, T.P. Act. However being aggrieved by the decree of eviction granted by the learned Court below in favour of the respondents-plaintiffs the appellant-defendant has preferred the present appeal.
2. It may be noted here that somehow at the time of hearing of the suit, it seems, a controversy arose whether the concerned bath and privy were within the original tenancy of the defendant or these were subsequently constructed by the defendant outside the limits of the tenancy. The learned Court below however found that the bath and privy were within the tenancy. Indeed it is also the case of the plaintiffs in the plaint that the plaintiffs constructed a bath and privy inside the demised premises (vide, Paragraph 6 of the plaint). Therefore it is an acknowledged fact that the bath and privy are located withinthe demised premises. It is however the specific case of the plaintiffs that the defendant made opening in the floor and fixed a pan with siphon and latrine pipes therein which were projecting inside the room down below that was let out to another tenant M/ s. A. D. Coomar and Sons. As we have seen, the defendant in the written statement did not plead any specific case as to when the pan with the siphon and latrine pipes was fixed but in evidence the defendant tried to make out a case that they had done the works with the consent of the landlords, namely, the plaintiffs. In this connection we may refer to Ext. I which is a letter dated the 28th December, 1976 written by the Branch Manager of the defendant Bank to the Joint Receivers, namely, the plaintiffs. In that letter the Branch Manager of the defendant Bank informed the Joint Receivers that the Bank had been renovating the premises concerned and such renovation included conversion of electric line from D.C. to A.C. repairing of latrine and interior decoration works. In reply to the said letter the joint Receivers by their letter dated 12-1-1977, Ext. 2, wrote to the Bank that they had no objection to the Bank carrying out necessary works of repair and renovation to the Bank's premises, provided they did so entirely at their own cost and did not make any structural additions and/or alterations and did not cause any damage to the property. It was also written in that letter that the Bank should not enlarge the water supply pipes or instal additional taps which might interfere with the supply of water to the other tenants. These two letters were included in the list of documents relied upon by the plaintiffs as annexed to the plaint. In the written statement nothing was mentioned by the defendant about these two letters. However the defendant wanted to develop their case later that whatever works they did for the purpose of renovation in the suit premises were done with the consent of the landlords as would be evident from the said letter of the landlords dated 12-1-1977, Ext. 2. On the other hand the stand of the respondents-plaintiffs is that the defendant Bank exceeded the limits of permission granted to them by the landlords for renovation. It is submittedon behalf of the respondents-plaintiffs that in the consent letter dated 12-1-1977, Ext. 2, the landlords while expressing 'no objection' regarding necessary works of repair and renovation, however made it specifically and expressly clear that in making such repair and renovation the Bank would not make any structural additions and/or alterations and would not cause any damage to the property.
3-4. It has also come in evidence that M/s. A. D. Coomar and Sons are occupying the room on the ground floor immediately below the suit premises in the first floor occupied by the defendant Bank and the said ground floor occupant is also a tenant under the same landlords and they are using the said ground floor room as godown. Ext. 7 is a letter dated 22-4-1977 written by a partner of the firm occupying the said ground floor as tenant, to the officer-in-charge of Hare Stree. Police Station. In thai letter it is complainec that at the time of opening their godown at 3.00 p.m. on 22-4-1977 it was found that unauthorised construction work was done in the first floor by the contractor of the United Industrial Bank, the tenant of the same building. It is further stated in the said letter that the Bank had installed one lavatory pan, iron cast pipe inside and outside the godown which were really unauthorised. The Officer-in-charge of the police station was requested in that letter to take action immediately requiring the contractor to dismantle the unauthorised construction. Ext. 7(b) is a letter written by the ground floor tenant to the manager of the defendant Bank on 3rd May, 1977. It is stated in that letter that there had been a discussion with the Manager of the Bank by B. K. Coomar, a partner of M/s. A. D. Coomar and Sons on 23-4-1977 regarding dismantling of unauthorised installation of lavatory pan etc. in the ceiling of their godown and the manager had committed that instruction had been given to their contractor to dismantle the said construction within three days, but in spite of that and in spite of repeated request (from M/s. A. D. Coomar and Sons) since 25-4-1977 no act ion had been taken against the contractor and that the Manager also had failed to honour his commitment. It is further stated in that letterthey had already informed the matter to Hare Street Police Station on 22-4-1977 for taking action against the unauthorised construction and the police station diary number also has been quoted in that tetter. A copy of that letter was also issued to the Joint Receivers.
5. Ext. 4 is the ejectment notice issued to the defendant Bank on behalf of the Joint Receivers. By that notice dated the 6th June, 1979 the tenancy was determined with effect from the expiry of the last day of July, 1979. The ground for eviction as mentioned in that notice is that the Bank, without the knowledge and consent of the landlords had constructed a privy and latrine inside one of the demised rooms by making an opening in the .floor and installing a pan and pipes therein projecting inside the godown let out to M/s. A.D. Coomar and Sons and that soiled water percolating from the said opening was causing damage to the goods of the said tenant and had rendered the said godown unusuable and the said wrongful acts done by the Bank, apart from causing damage to the property of the landlord constituted nuisance and annoyance to the neighbours including the landlords. It is further recited in the said notice that in spite of demand the Bank had not removed the said offending installations and restored the property to its original condition. Ext. 7(a) is a letter dated the 6th February, 1978 sent by M/ s. A. D. Coomar and Sons to the Joint Receivers. In the first paragraph of that letter attention of the Joint Receivers were drawn to the copy of their letter dated 3-5-1977 (Ext. 7/b) addressed to the Manager of the defendant Bank. We have already noticed that a copy of the said letter dated 3-5-1977 was issued by M.s. A.D. Coomar and Sons to the Joint Receivers also. In their letter dated the 6th Feb. 1978 Ext. 7, a addressed to the Joint Receiver, M s. A.D. Coomar and Sons recorded that the Bank had taken no action to dismantle the unauthorised latrine constructed by them although a long time had passed since they addressed the letter dated 3-5-1977 to the Branch Manager of the Bank. In the circumstances, in the said letter dated the 6th Feb. 1978 Ext. 7, a, A.D. Coomnr. and Sons requested the Joint Receivers to force the tenant Bank to dismantle the unauthorised latrine immediately. It was also stated therein that the latrine hadcaused great nuisance not only to their godown but to all adjoining shops, godown, rooms etc. and that the condition had become so filthy and unsanitary that it had become quite impossible for them to open and use the godown when needed. It was asserted in that letter that for reason of health, let alone other matters, the latrine must be dismantled immediately.
6. P.W. 1, Subhas Chandra Pan is the Manager of the Joint Receivers (Plantiffs). He speaks of placing of pan and siphon by the defendant on a lower level by making a hole on the roo'f as a result which the siphon is hanging over the tenanted portion in occupation of A.D. Coomar and Sons in a dangerous and obnoxious way and bad smell comes out through the siphon and boiled water perculates in tenanted portion of M, s. A.D. Coomar and Sons and plasters of the roof of the ground floor have also been severely damaged as a result of the unauthorised construction of the defendant, in his cross-examination he says that the letter objecting to the alterations made in the tenanted house had been written and at first they told the defendant's Manager over phono about the objected alterations and it was assured by him that the mistake done by the contractor would be rectified soon, but ultimately when they did not take steps to that effect, letters were written. He says thai alterations had been done in March 1977. P.W. 2 Hirendranath Coomar is a partner of the firm M/s. A.D. Coomar and Sons. He speaks of the existence of their godown in the ground floor of the concerned premises on rent. He says that in April, 1977 the roof of their godown was broken and nightsoil from the lavatory of the Bank Tell inside the godown making it impossible for them even to enter the godown and the informed the landlord as also the Bank of the same as well as the police station. He says that they are still unable to use the godown and water leaks from above and owing to foul smell and fall of nightsoil the cannot enter the godown and their goods in the godown are being damaged. D.W. 1 Taraknath Chakraborty is the Branch Manager of the defendant Bank. He was however posted in this branch only in May 1987, that is, long after the disputed works were done. He says that it is not correctto say that water falling from their bath room is causing nuisance to the ground floor tenants and others. In his cross-examination he says that his predecessor-in-office has joined Dum Dum Cantonment Branch of their Bank on transfer and he is available. The predecessor Branch Manager was however not examined on behalf of the Bank. D.W. 2, Kirtibas Guchait is an employee of the defendant Bank, and he has been working in this Bank since 1951. In his examination-in-chief he denies that there was no privy or urinal previously. It is however to be mentioned here that the question of previous existence of privy or urinal is not so much material in the context of the dispute whether the renovation of the bath and privy, in the manner in which it has been done, constitutes a valid cause of action for the plaintiffs to seek eviction of the defendant Bank. In his cross-examination D.W. 2 says that just at the bottom of the Bank M/s. A. D Coomarand Sons have their godown. He however categorically admits in cross-examination that in April/May, 1977 they (meaning the Bank) made an opening in the floor and fixed a pan with siphon and latrine pipe projecting inside the room below.
7. Ext. 3 is the report of the Engineer Commissioner submitted before the trial Court after necessary inspection at the locale. On an application filed by the plaintiffs the learned Court below appointed an Engineer-Commissioner to hold local inspection and submit report on the points mentioned in the application of the. plaintiffs. The Commissioner was required to submit report after holding inspection at the locale as to whether there was a bath and privy inside the suit premises and whether installing the pan of the privy an opening had been made in the floor of the suit room and whether the pan, siphon and soil pipe were projecting inside the room below in possession of M/s. A. D. Coomar and Sons and whether by installing the pan any damage had been cuased to the property. The Commissioner was also required to give, if possible, his opinion regarding the probable age of the bath room and privy. The Commissioner inter alia found, as recorded in his report, that the privy consisting of one Indian sitting-type porcelain pan having foolrests was fitted at a height of 1' from the existing floor level. The Comissioner also recorded that for the installation of the pan of the privy and for inducting siphon and soil pipe lines as well as for taking the C.I. discharge pipe line of the urinal the defendants had made certain holes on the floor of the suit room and had caused damage to the ceiling of M, s. A. D. Coomar and Sons, a direct tenant under the plaintiffs whose godown was situated at the ground floor-immediately below the suit urinal-cum-bath-cum-privy of the defendant. He also recorded that the siphon and soil pipes had partially projected underneath the ceiling of the ground floor godown of M/s. A. D. Coomar and Sons and in order to cover the projected exposed face of the said soil pipes efforts had been made to hide the same and level it by rendering rich plaster of cement sand mortar but due to slip-shod and haphazard manner of work the projected ugly face of the soil pipes rather created an unbecoming and unbefitting object of view. The Commissioner also recorded in his report the extent of damages found by him. He however noted that the bath-cum-privy was the integral part of the suit premises let out to the defendants. He also noted on the basis of physical verification that the'bath-cum-privy room was sufficiently old while the remodelling of privy and urinal had only been made about 6, 7 years ago. This is consistent with the case of the parties that remodelling of the bath and privy was done in the year 1977. It has been submitted by the learned advocate for the appellant-defendant that in this case the Commissioner had not been examined to prove his report. It is true that the Commissioner has not been examined in this case. It is also true that such appointment of Commissioner for ascertaining the condition of the concerned premises or any part thereof by making local inspection comes within the purview of Order 39, Rule 7 and not Order 26, Rule 9, C.P.C. (see, Nitendranath v. Subhas, : AIR1981Cal319 , Amulya v. Ananda : AIR1933Cal475 and ordinarily the Commissioner should be examined in support of his report. But his report was put in evidence in this case by P.W. 1, Subhas Chandra Paul and was marked as Ext. 3 while the evidenceof the said witness was being taken. No objection was taken on behalf of the defendant at that stage of at any stage in the trial Court regarding the admissibility of the report of the Commissioner, either on the ground that the Commissioner was not examined to prove his report or on any other ground whatsoever. In the circumstances the appellant-defendant cannot at the time of hearing of this appeal, raise objection for the first time that the report of the Commissioner should not have been admitted in the evidence. On the other hand it is submitted by the learned Advocate for the respondents-plaintiffs that far from raising any objection against the report of the Commissioner in the trial Court the appellant-defendant has rather relied upon the said commissioner's report Ext. 3 in their Memorandum of Appeal itself. In ground No. IX of the Memorandum of Appeal it is stated that the learned Court below in any event, in view of the Commissioner's report, Ext. 3 and the provisions of clause (m) of Section 108 of the Tansfer of Property Act should have held that the plaintiffs are not entitled to any decree on the ground mentioned in Section 13(1)(b) of the West Bengal Premises Tenancy Act, 1956 as the floor of the tenancy premises has been duly renovated and repaired and no objection was raised by the lendlords-plaintiffs. It therefore seems that far from raising any objection even in the Memorandum of Appeal the appellant-defendant is rather relying upon the report of the Commissioner. Again in ground No. XVII! of the Memorandum of Appeal also the Commissioner's report Ext. 3 has been relied upon to discredit the evidence of P.W. 2 on the ground that the Commissioner's report does not mention of falling of night soil or percolation of water to the godown of P.W. 2 from the lavatory of the defendant. It may be mentioned here that falling of night soil or percolation of water, for obvious reason, is a phenomenon which will operate only when the privy or urinal is used. Presumably during the Commissioner's visit none used the privy or urinal and that is why the percolation of water or falling of night soil was not there when the Commissioner inspected the bath room and that iswhy there is no mention of this in the report of the Commissioner. There is also no mention either, in the report of the Commissioner, that inspite of use of the bath room and privy there was no falling of night soil or percolation of water to the ground floor. But it is evident that even while filing the appeal the appellant-defendant did not raise any objection against the report of the Commissioner or its admissibility in evidence. Rather in the Memorandum of Appeal also the appellant-defendant categorically relied upon the Commis-sioner's report, as we have seen. In the circumstances objection to the admissibility of the Commissioner's report, as raised for the first time at the hearing of the appeal, cannot be entertained. This view is also supported by the decision of the Supreme Court in P. C. Purusothama v. S. Parumal, : [1972]2SCR646 where the Surpeme Court in appeal refused to entertain objection against admissibility of certain police reports marked exhibits during trial on the ground that the persons who made those reports were not examined in the case. In that connection the Supreme Court observed that those reports were marked without objection and hence it was not open to the repondent now to object to their admissibility. In that context the Supreme Court also referred to the Privy Council decision in Bhagat Ram v. Khetu Ram AIR 1929 PC 110. The view we have taken in the matter also receives support from the Privy Council decision in Nkwantahene v. Bechemhene AIR 1949 PC 291. On the other hand the learned Advocate for the appellant relied upon three decision in support of his contention that the Commissioner's report cannot go in evidence without examining the Commissioner, viz. Amulya Kumar v. Annanda : AIR1933Cal475 , Kunja Prusti v. Harekrushna Prusti, (1990) 70 Cuttak Law Times 269, and In re: P. K. Ganguli v. Anindita Ganguly, (1993) 97 Cal WN 53. These decisions are however not applicable to the facts and circumstances of the present case, because in the first mentioned two cases the Commissioner's report was not put in evidence at all and in the last mentioned case objection regarding admissibility of certain medical certificate and prescription was taken by the aggrieved party during the continuance of the trial before the trial Court itself. What we are holding in this case -- supported by the Supreme Court decision referred to above -- is that since the Commissioner's report was put in evidence through a witness during the trial and was admitted in evidence and marked exhibit by the trial Court without any objection whatsoever from the appellant-defendant either at the time of such admission in evidence or at any time thereafter before the trial Court and when the appellant, far from raising any objection to the admissibility of the Commissioner's report in evidence has rather expressly relied upon the same in the Memorandum of Appeal even, it is not now open to the appellant to raise such objection for the first time during the hearing of the appeal. Having regard to the evidence on record which we have already discussed including the Commissioner's report and the defence withness D.W. 2 who is an employee of the appellant-Bank, we have no hesitation in holding that while renovating the bath-cum-privy (which indeed is located within their tenancy) in 1977 the appellant-Bank not only made opening on the floor but also placed privy pan with siphon and soil pipes therein projection in the room down below which is in the tenancy of M/s. A. D. Coomar and Sons under the same landlord. This finding of fact, we would like to make it clear, will not be affected in any way even if the Commissioner's report is kept out of consideration, because this finding is sustained not only, by the other evidence adduced on behalf otthe plaintiffs but also by the clear admission made by the defence witness D.W. 2 during his cross-examination, as we have seen.
8. Now let us examine whether making of opening in the floor of the bath room on the first floor and placing of privy pan with siphon and soil pipe therein in such manner that the same visibly projects into the ground floor room of another tenant down below and keeps on hanging oh the roof of the ground floor room, constitutes a violation of clause (m) of Section 108 of the Transfer of Property Act so as to attract the mischief of Section 13(1)(b) of the West Bangal PremisesTenancy Act thereby making the tenant liable to eviction on that ground. Section 108 of the Transfer of Properly Act, 1882 deals with rights and liabilities of lessor and lessee. Clauses (a) to (c) of the said Section 108 deal with the rights and liabilities of the lessor while the clauses (d) to (q) deal with the rights and liabilities of the lessee. Clause (m) of Section 108, T. P. Act runs thus : --
'(m). The lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable time during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition, and, when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left.'
Clause (m) of Section 108, T.P. Act, when properly analysed, will be found to include within its fold a number of liabilities for the lessee, such as :--
(1) The lessee is bound to keep the property in as good condition as it was in the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force.
(2) The lessee is bound, on the termination of the lease, to restore the property in as good condition as noted above.
(3) The lessee is bound to allow the lessor and his agents, at all reasonable time during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition.
(4) When such defect has been caused by any act or default on the part of the lessee, his servants or agents he is bound to make it good wihtin the three months after such notice has been given or left.
We thus find that the provisions of clause (m) of Section 108 resolve into four distinct partsof liabilities for the lessee.
9. The learned Advocate for the appellant argues that even for filing a suit for eviction for the tenant doing any act contrary to clause (m) of Section 108, T. P. Act as provided in Section 13(1)(b) of the West Bengal Premises Tenancy Act the landlord will have to give notice to the tenant stating the defects found in the condition of the premises so that the tenant can get an opportunity to make it good within three months after such notice has been given as mentioned in clause (m) of Section 108, T.P. Act and a suit can be filed only if inspite of such notice the tenant does not remove the defect within three months. It is further submitted by the learned Advocate for the appellant that in this case no such notice under clause (m) of Section 108, T.P. Act was served upon the tenant by the landlord and as such the suit is not maintainable. It is also submitted by him in this connection that under clause (m) of Section 108, T.P. Act notice is required to be given by the landlord and therefore any notice given by another tenant of the premises, namely, M/s. A. D. Coomar and Sons will not satisfy the requirement of clause (m) of Section 108. In this connection the learned Advocate for the appellant also refers to the deposition of P. W. 1, Subhas Chandra Paul who is the Manager of the plaintiffs. The said witness in his cross-examination says that latters objecting to the alterations made in the tenanted house had been written. He also says that at first they told the defendant's Manager over phone about the objected alterations and it was assured by him that the mistake done by the contractor would be rectified soon, but ultimately when they did not take any step to that effect letters were written. He further says that letter was sent through their lawyer in 1977. It is submitted by the learned Advocate for the appellant that no such letter stated to have been written by the plainiiff's Advocate in 1977 has been exhibited. On the other hand the learned Advocate for the respondents submits that the notice referred to in clause (m) of Section 108 T. P. Act need not necessarily be a written notice and even a verbal notice is sufficient for the purpose of clause (m) of Section 108, T.P. Act. A plainreading of clause(m) of Section 108 will show that is does not state therein that the notice has to be in writing, unlike the provisions in Sections 106, 111(g) and 114A of the T.P. Act where it has been expressly stated that the concerned notice notice must be in writing. This difference of language used in Sections 106, 111(g) and 114A on the one hand and Section 108(m) on the other, with reference to notice, is not without significance. The flexibility inhering in the expression 'give or leave notice' as used in clause (m) of Section 108 is also additionally indicative of the legal position that such notice as referred to in clause (m) may be given orally also. The being so even oral notice as stated by P.W. 1 to have been given in the case was sufficient to attract the fourth part of the liabilities of the lessee to make good the defect and since admittedly the defect was not removed by the defendant the violation of the fourth part of the liabilities, as enumerated earlier while analysing the clause (m), is attracted in this case.
10. In this connection the learned Advocate for the respondents also submits that in view of the pleadings in the case the appellant cannot now raise the plea that no notice of the defects in the condition of the tenanted premises was given to the appellant. In this connection he refers to paragraph 6 of the plaint wherein it is stated that in constructing the privy the defendant made an opening in the floor and fixed a pan with siphon and latrine pipe therein projecting inside the room below let out to another tenant M/s. A. D. Coomar and Sons. It is further stated therein inter alia that inspite of repeated portests and objections the defendant has not removed the offending constructions and installations which comravenes the provisions of clauses (m) and (p) of Secton 108 of the T.P. Act. It is submitted on behalf of the respondent, that in paragraph 6 of the plaint it has been categorically alleged that repeated protests and objections to the offending constructions and installations were made but inspite of that the defendant did not remove the same, but in delaing with those averments in paragraph 12 of the written statement the defendant has not made any specific denial that no such protestor objection was ever made and therefore in view of the rule of pleadings it is not open to the appellant-defendant now to allege that no notice of the offending installations was given on the defendant. In our opinion there is substance and force in this argument of the learned Advocate for the respondents.
11. But even if it is accepted, as contended by the learned Advocate for the appellant, that no notice under clause (m) of Section 108 of the T.P. Act was at all given to the appellant-defendant by the landlords regarding the offending alterations and installations, yet that will not be a bar for institution of the suit. In other words, notice under clause (m) of Section 108 is not a sine qua non for giving rise to a cause of action under Section 13(l)(b) of the West Bengal Premises Tenancy Act for attracting the mischief of clause (m) of Section 108, T.P. Act. If the tenant makes such alteration in the premises either in the name of repair or otherwise, as to constitute a violation of the first part of his liabilities enumerated in clause (m) of Section 108, that is, if the act done by the tenant is contrary to his liability to keep the property in as good condition as it was at the time when he was put in possession, that itself will give rise to a cause of action under Section 13(1)(b) of the West Bengal Premises Tenancy Act to terminate the tenancy and institute a suit for eviction of the tenant on the ground of contravention of clause (m) of Section 108 T. P. Act. Where however the landlord, instead of availing of that cause of action arising from the offending alteration made in the premises, prefers at the first instance to give notice of such offending alteration or installation to the tenant, in that event he has to wait for a periodiof three months from the date of giving such notice to see whether the tenant makes good the defect notified to him before a suit for eviction is filed on the ground of contravention of clause (m) of Section 108 T.P. Act. Section 13(l)(b) of the West Bengal premises Tenancy Act is attracted for evicting the tenant:
'(b) Where the tenant or any person residing in the premises let to the tenant has done any act contrary to the provisions ofclause (m), clause (o) or clause (p) of Section 108 of the Transfer of Property Act, 188,2.'
12. The doctrine of incorporation by reference has been discussed in the decisions of the Surpeme Court (which have been cited by the learned Advocate for the appellant) in J. A. Pradhan v. Partha Sarthy, : [1986]2SCR1 and M/s. Onkarlal Nandlal v. State of Rajasthan, : AIR1986SC2146 . There is indeed no dispute that when certain provisions of an Act are incorporated in a subsequent Act by reference to such provisions, those provisions would be deemed to have been included in the subsequent Act as if they were expressly written in the subsequent Act. But then still the subtle question remains as to the scope or extent of incorporation by such reference. Now Section 13(l)(b) W.B.P.T. Act, as we have seen, says that the tenant will be liable to eviction if he or any person residing in the tenanted premises has done any act contrary to the provisions of clause (m) of Section 108, T.P. Act. As we have seen earlier, the liabilities of the lessee under clause (m) of Section 108, T.P. Act resolve into four different parts. From the language used in Section 13(1)(b), W.B.P.T. Act it is very clear that the tenant will be liable to eviction for doing any act contrary to any of the provisions of clauses (m), (o) and (p) of the Section 108, T.P. Act. Therefore if the tenant does any act which is contrary to or violates any of the four parts of his liabilities mentioned in clause (m) of Section 108, T.P. Act he will be liable to eviction under Section 13(1)(b). This is the scope of incorporation by reference to clause (m) of Section 108 of the T.P. Act read with Section 13(1)(b), W.B.P.T. Act. In other words, if the tenant makes any alteration or installation in the tenanted premises which is violative of his liability to keep the tenanted premises in as good condition as it was when he was put in possession of the same, that will be an act constituting a violation of clause (m) of Section 108, T.P. Act giving rise to a full-fledged cause of action under Section 13(1)(b) of the W.B.P.T. Act for eviction of the tenant after terminating the tenancy. It is not necessary that before filing a suit for eviction for contravention of clause (m) of Section 108, T.P. Act a notice mentioned in saidclause (m) must invariably be given. Such notice is not a sine qua non for filing a suit for eviction on ground of contravention of clause (m). But where however the landlord chooses to give such notice he cannot file a suit for eviction for contravention of clause (m) without waiting for three months as mentioned in the said clause (m) to see whether the defect brought to his notice is removed by the tenant. Where a notice is given under clause (m) and pursuant to that the offending alteration or installation is removed by the tenant within three months in conformity with his liability to do so under the said clause (m), in that event no cause of action for eviction survives to the landlord on ground of contravention of clause (m). However in the present case if it is held that notice was given by the landlords to the tenant regarding the offending alteration and installation, the fact remains that inspite of such notice the alleged defect were not removed and therefore the landlords had a cause of action for filing the suit for eviction under Section 13(l)(b) of the W.B.P.T. Act for contravention of the said clause (m). On the other hand even if the contention of the learned Advocate for the appellant-defendantis accepted that no notice under clause (m) was at all given by the landlords to the tenant, yet that does not debar the landlord from filing a suit for eviction of the tenant for conravention of clause (m) of Section 108 on the allegation that the defendant has made such alteration and installation in the suit premises as would be violative of his liability under clause (m) of Section 108, T.P. Act to keep the property in as good condition as it was at the time when he was put in possession. In any view of the matter therefore, it cannotbe said that the cause of act ion did not mature for the plaintiffs to file the suit for eviction on the ground of contravention of clause (m) ofSection 108, T.P. Act.
13. The next question that we will take up for consideration is whether the digging of hole on the floor of the bath room and placing of privy pan with siphon and soil pipeline;, therein in the manner in which the same has been done constitutes an act contrary to the liability of the tenant to keep the premises inas good condition as it was when he was put in possession thereof as required by clause (m) of Section 108, T.P. Act. It may be noticed here that in clause (m) nothing is mentioned about permanent structure. The question of permanent structure falls for consideration directly when the tenant is sought to be evicted on the ground of contravention of clause (p) of Section 108, T.P. Act. But even then in considering the question whether the alteration and installation complained of by the landlord attract clause (m), the nature of such alteration and installation as well as the surrounding or the situalional set-up and the associated get-up affected by the same will also have to be kept in view. It is not that every alteration or installation will be a violation of clause (m). It may also be that an alteration or installaiion in one set-up may be violative of clause (m) but the same may not be so in a different set-up or in a different situation. Much depends on the facts and circumstances of a case. The alteration, to attract the mischief of clause (m) of Section 108, T.P. Act, must not be of a mere nominal or unobjectionable nature. It must be a material alteration. The Surpeme Court in Manmohan Das v. Bishun Das, : [1967]1SCR836 had the occasion to consider what constitutes 'material alteration'. In paragaph 7 of the said decision the Supreme Court observed thus : --
'without attempting to lay down any general definition as to what material alterations mean, as such a question would depend on the facts and circumstances of each case, the alterations in the present case must mean material alterations as the construction carried out by the respondent had the effect of altering the form and structure of the accommodation. The expression 'material alterations' in its ordinary meaning would mean importants alterations, such as those which materially or substantially change the front or the structure of the premises. It may be that such alterations in a given case might not cause damage to the premises or its value or might not amount to an unreasonable use of the leased premises or constitute a change in the purpose of the lease.'
The decision of the Supreme Court in P. C. Purusothama v. S. Parumal, : [1972]2SCR646 where the Surpeme Court in appeal refused to entertain objection against admissibility of certain police reports marked exhibits during trial on the ground that the persons who made those reports were not examined in the case. In that connection the Supreme Court observed that those reports were marked without objection and hence it was not open to the repondent now to object to their admissibility. In that context the Supreme Court also referred to the Privy Council decision in Bhagat Ram v. Khetu Ram AIR 1929 PC 110. The view we have taken in the matter also receives support from the Privy Council decision in Nkwantahene v. Bechemhene AIR 1949 PC 291. On the other hand the learned Advocate for the appellant relied upon three decision in support of his contention that the Commissioner's report cannot go in evidence without examining the Commissioner, viz. Amulya Kumar v. Annanda : AIR1933Cal475 , Kunja Prusti v. Harekrushna Prusti, (1990) 70 Cuttak Law Times 269, and In re: P. K. Ganguli v. Anindita Ganguly, (1993) 97 Cal WN 53J. A. Pradhan v. Partha Sarthy, : [1986]2SCR1 and M/s. Onkarlal Nandlal v. State of Rajasthan, : AIR1986SC2146 Manmohan Das v. Bishun Das, : [1967]1SCR836 Naba Kuamr v. Annapurna, 1994 AIR SCW 400 would also show that structural alterations which are not merely repairs may entail eviction under Section 13(1)(b) of the West Bengal Premises Tenancy Act. In Suraya Properties Private Ltd. v. B. Nath, : AIR1965Cal408 a Division Bench of this Court in dealing with the characteristics of 'permanent structure' observes that the meaning of the words 'permanent structure' would be that the lesses intended that he would enjoy the structure that he raises as long as he would be continuing in possession and that period may be definite or may be indefinite, but that is the period of the lease and the person namely, the lessee who constructs the structure should have an intention to use it as long as he remains a lessee. In Atul Chandra v. Sonatan Daw, : AIR1962Cal78 a Division Bench of this Court observes that what is permanent structure within the meaning of clause (p) of Section 108 of the T.P. Act will depend on the facts of each case and there can be no rigid or hard and fast rule or formula to define or construe a permanent structure and that the test of removability or demolition is not an invariable test because even permanent structures like buildings or walls can be demolished or removed and that the question whether a structure is permanent or not, is appropriate under clause (p) but is not so under clauses (m) and (o) of Section 108 of the T.P. Act. In paragraph 12 of the said decision it has been observed thus :--
'12. Clause (m) of Section 108, Transfer of Property Act puts an obligation upon the lessee to keep the property in as good a condition as it was at the time when he was put into possession subject only to the changes caused by such reasonable wear and tear as provided there. This clause (m) in the Indian context has been applied to mean a prohibition upon the tenant to make any structural additions and alterations. See the comments in Sir Dinshah Mulla's Transfer of Property Act, Fourth Edition, 1956, at page 665 where the learned editor, a former Chief Justice of India says:
'Alterations that are not authorised are asmuch a breach of the covenant as dilapidations, e.g., opening a door in a wall, or pulling down a wall across a courtyard, or converting the gound floor into a shop.'
In Kalpana Dhar v. Subodh Kumar, (1978) 2 Cal LJ 292, it was held that during ihe continuance of the lease or tenancy, if the tenant erects or constructs any permanent structure in a portion to which the landlord or other tenants can have access, then that tenant wili come within the mischief of Section 108(p) of the Transfer of Property Act and will be liable to be ejected and it will be no answer of the tenant that the portion in respect of which the tenant has made the construction is outside the demised premises. It was further held in the said decision that the true test is whether the tenant can retain possession of the new construction he has made after his euction from the demised premises and if the answer be in the negative, then any construction he has made wili entail the eviction of the tenam if he has violated the provision of Section 108(p) of the Transfer of Property Act. In Om Pal v. Anand Swarup : (1988)4SCC545 the Supreme Court took notice of its earlier decision in Om Prakash v. Amar Singh, : [1987]1SCR968 where it had been observed that the expression 'materially altered' meant a substantial change in the character, form and structure of the building without destroying its identity.
14. Now as we have seen, in the name of repairing or renovating the bath room the appellant-defendant has placed a privy pan with siphon and soil pipeline by opening the floor of the bath room in such a manner that the siphon and the soil pipeline arc projecting and hanging on the ceiling of the ground floor room which is occupied by another tenant under the same landlord. Even apart from the question whether night-soil and soiled water were falling in the ground floor room as a result of the objected construction and instalation, the placing of the privy pan with siphon and soil pipe projecting in the ground floor room from the ceiling of that room. In our opinion, itself constitutes a material alteration of the condition of the bath room in occupation of the defendant bank. It requiresnot much of a commonsense of aesthetic sense to appreciate that neither the landlord nor the ground floor tenant can be reasonably expected to remain unconcerned to the same. Be that as it may, in our considered opinion the alteration made by the defendant in the name of repair and renovation of the bath-room in the manner in which it has been done is a material alteration of an obnoxious nature which attracts clause (m) of Section 108, T.P. Act. Such a material alteration, in our opinion obviously be accommodated as a mere innocent repair or renovation. The learned 'Advocate for the appellant has referred to the Full Bench decision of this Court in Ratanial Bansilal v. Kishorilal, : (1993)1CALLT162(HC) . Our attention has been drawn to paragraphs 156 and 157 of the said decision. Paragraph 130 may also be looked into. It appears that the tenant bored a hole in the floor of the balcony on the first floor for the purpose of laying a pipe to drain out the accumulation in the urinal and the hole bored did not cause any damage to the property and could be readily filled in. In the facts and circumstances of the said case it was held that the hole bored was so insignificant that it could not be said to have led to any waste or damage. It does not appear that any pipe line was in fact taken through the hole bored or that any pipe line had projected into the tenancy of another tenant. In fact the pipe line was only intended to be placed but as a matter of fact no pipe line was placed. What was the matter for consideration of the Court in that case was not any existent pipe line but only the hole which could be readily filled in. But in our present case the matter for consideration is not any hole in the floor but rather the placing of a privy pan with siphon and soil pipe inside the opening made for the purpose in the floor of the first floor bath room in such a manner that a part of the installation visibly projects inside the ground floor room and keeps on hanging from the ceiling of that room which room is included in the tenancy of another tenant under the same landlord. The facts and circumstances being radically different, the decision in Ratanial Bansilal v. Kishorilal : (1993)1CALLT162(HC) (supra) are clearly distinguishable.
15. The plea taken by the appellant-defendant that he has done the repair and, renovation works in the bank's premises with the consent of the landlords is wholly untenable. By their letter daied 12-1-1977, Ext. 2, the landlords conveyed to the defendant-bank their 'no objection' to the repair and renova-tion works on specific condition that the bank shall not make any structural additions and/or alterations and shall not cause any damage to the property. As we have seen, the works done by the defendant in the garb of repair and renovation constitute material alteration and as such the same cannot take shelter under the protection of the letter of 'no objection' issued by the landlords. Having regard to the facts, circumstances and evidence on record we therefore affirm the decree of eviction granted by the learned trial Court on ground of contravention of clause (m) of Section 108, T.P. Act.
16. The learned Advocate for the respondents also contended that the learned trial Court, on the basis of the evidence on record, should have held that the appellant-defendant was liable to eviction also on the ground of contravention of clause (p) of Sectioa 108, T.P. Act. We have already noted that (he decision of the learned trial Court on that point has gone against the respondent-landlords. It is submitted by the learned Advocate of the respondents that although they have not filed any cross-objection in this appeal they arc entitled to support the decree on the ground that the learned trial Court should have held also that the appellant-defendant contravened clause (p) of Section 108, T.P. Act which the learned trial Court did not do. In support of this argument that they can raise this point in this appeal even without filing any cross-objection the learned Advocate for the respondents has relied upon two Division Bench decisions of this Court in M/s. Tide Water Oil Company (India) Ltd. v. Kalidas Banerjee, : AIR1982Cal127 and Nishambhu Ch. Jana v. Smt. Sova Guha, (1985) 89 Cal WN 685. On the other hand the learned Advocate for the appellant has relied on the decision of a Division Bench of this Court in B. S. Venugopal v. State of West Bengal, (1984) 88 Cal WN 723 : (1984 Lab IC 1119) insupport of his contention that without filing any cross-objection the respondents cannot raise this point in this appeal. The learned Advocate for the respondents also submitted that in this appeal the respondents can urge in view of the pleadings and evidence on record, that the appellant-defendant is liable to eviction under Section 13(l)(b) of the West Bengal Premises Tenancy Act on the ground of causing nuisance and annoyance. We are however not entering into these questions, namely, whether the respondents can urge in this appeal for a decree of eviction on the ground of nuisance and annoyance under Section 13(1)(e) of the West Bengal Premises Tenancy Act or whether the respondents can, in this appeal, ask for reversal of the finding of the learned trial Court regarding the applicability of clause (p) of Section 108, T.P. Act, as we have already held that the appellant-defendant is liable to eviction on the ground of contravention of clause (m) of Section 108, T.P. Act thereby affirming the decree of the learned trial Court on that ground. In the result the appeal fails and the same is hereby dismissed with costs. The appellant is however, granted time for three months from this date to vacate the suit premises and deliver vacant (possession) of the same to the respondents, failing which the respondents will be at liberty to put the decree into execution on the expiry of three months.
Devendra Kumar Jain, J.
17. I agree.
18. Appeal dismissed.