Stockman Boarding House Vs. Life Insurance Corpn. of India and ors. - Court Judgment

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
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			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
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			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | '
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		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
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		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
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			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR2000Cal219',
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			'respondent' => 'Life Insurance Corpn. of India and ors.',
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		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
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		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
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			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
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			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Stockman Boarding House',
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		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
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		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
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		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
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		'decidedon' => '2000-03-29',
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		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
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			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
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			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
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			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Stockman Boarding House',
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		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
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		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
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		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
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			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
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			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
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			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Stockman Boarding House',
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		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
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		'court' => 'Kolkata',
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		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'pubs' => 'AIR2000Cal219',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
		'sub' => 'Property',
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		'circuit' => null
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	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
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1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed.

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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	'casename_url' => 'stockman-boarding-house-vs-insurance-corpn',
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		(int) 0 => '875915',
		(int) 1 => 'stockman-boarding-house-vs-insurance-corpn'
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$title_for_layout = 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '875915',
		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
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2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act.

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR2000Cal219',
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			'respondent' => 'Life Insurance Corpn. of India and ors.',
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		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
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		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR2000Cal219',
		'ratiodecidendi' => '',
		'respondent' => 'Life Insurance Corpn. of India and ors.',
		'sub' => 'Property',
		'link' => null,
		'circuit' => null
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$ctype = ' High Court'
$caseref = 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain<br>'
$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed.

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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	),
	'casename_url' => 'stockman-boarding-house-vs-insurance-corpn',
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		(int) 0 => '875915',
		(int) 1 => 'stockman-boarding-house-vs-insurance-corpn'
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$title_for_layout = 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '875915',
		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
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$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;--

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
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		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
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		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
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		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => 'AIR2000Cal219',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
		'sub' => 'Property',
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$ctype = ' High Court'
$caseref = 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain<br>'
$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business.

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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$title_for_layout = 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '875915',
		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
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$caseref = 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain<br>'
$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.'

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR2000Cal219',
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			'respondent' => 'Life Insurance Corpn. of India and ors.',
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		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
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		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
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		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR2000Cal219',
		'ratiodecidendi' => '',
		'respondent' => 'Life Insurance Corpn. of India and ors.',
		'sub' => 'Property',
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		'circuit' => null
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$ctype = ' High Court'
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$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :--

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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	),
	'casename_url' => 'stockman-boarding-house-vs-insurance-corpn',
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		(int) 0 => '875915',
		(int) 1 => 'stockman-boarding-house-vs-insurance-corpn'
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$title_for_layout = 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '875915',
		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
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$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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' 1) Is the suit maintainable

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
		'observations' => null,
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		'pubs' => 'AIR2000Cal219',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
		'sub' => 'Property',
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	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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(2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
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			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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	'casename_url' => 'stockman-boarding-house-vs-insurance-corpn',
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		(int) 0 => '875915',
		(int) 1 => 'stockman-boarding-house-vs-insurance-corpn'
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$title_for_layout = 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '875915',
		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
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$caseref = 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain<br>'
$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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(3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
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		'appellant' => 'Stockman Boarding House',
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		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
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		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
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		'decidedon' => '2000-03-29',
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		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => 'AIR2000Cal219',
		'ratiodecidendi' => '',
		'respondent' => 'Life Insurance Corpn. of India and ors.',
		'sub' => 'Property',
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		'circuit' => null
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$caseref = 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain<br>'
$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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(4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
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			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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	'casename_url' => 'stockman-boarding-house-vs-insurance-corpn',
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		(int) 0 => '875915',
		(int) 1 => 'stockman-boarding-house-vs-insurance-corpn'
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$title_for_layout = 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '875915',
		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
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$caseref = 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain<br>'
$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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(5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
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		'appellant' => 'Stockman Boarding House',
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		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
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		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
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		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'prhistory' => '',
		'pubs' => 'AIR2000Cal219',
		'ratiodecidendi' => '',
		'respondent' => 'Life Insurance Corpn. of India and ors.',
		'sub' => 'Property',
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		'circuit' => null
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	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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(6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel.

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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	),
	'casename_url' => 'stockman-boarding-house-vs-insurance-corpn',
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		(int) 0 => '875915',
		(int) 1 => 'stockman-boarding-house-vs-insurance-corpn'
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$title_for_layout = 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '875915',
		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
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$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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(7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
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		'appellant' => 'Stockman Boarding House',
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		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
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		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
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		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR2000Cal219',
		'ratiodecidendi' => '',
		'respondent' => 'Life Insurance Corpn. of India and ors.',
		'sub' => 'Property',
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		'circuit' => null
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	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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(8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?'

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
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			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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	'casename_url' => 'stockman-boarding-house-vs-insurance-corpn',
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		(int) 0 => '875915',
		(int) 1 => 'stockman-boarding-house-vs-insurance-corpn'
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$title_for_layout = 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '875915',
		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
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$caseref = 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain<br>'
$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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Certain additional issues were also framed which are as follows :--

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
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		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
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		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR2000Cal219',
		'ratiodecidendi' => '',
		'respondent' => 'Life Insurance Corpn. of India and ors.',
		'sub' => 'Property',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
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			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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	'casename_url' => 'stockman-boarding-house-vs-insurance-corpn',
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		(int) 0 => '875915',
		(int) 1 => 'stockman-boarding-house-vs-insurance-corpn'
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$title_for_layout = 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '875915',
		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
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$caseref = 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain<br>'
$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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(2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
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		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
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		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
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		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR2000Cal219',
		'ratiodecidendi' => '',
		'respondent' => 'Life Insurance Corpn. of India and ors.',
		'sub' => 'Property',
		'link' => null,
		'circuit' => null
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$ctype = ' High Court'
$caseref = 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain<br>'
$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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(3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?'

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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	),
	'casename_url' => 'stockman-boarding-house-vs-insurance-corpn',
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		(int) 0 => '875915',
		(int) 1 => 'stockman-boarding-house-vs-insurance-corpn'
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$title_for_layout = 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '875915',
		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
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$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 .

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR2000Cal219',
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			'respondent' => 'Life Insurance Corpn. of India and ors.',
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		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR2000Cal219',
		'ratiodecidendi' => '',
		'respondent' => 'Life Insurance Corpn. of India and ors.',
		'sub' => 'Property',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
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7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :--

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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	),
	'casename_url' => 'stockman-boarding-house-vs-insurance-corpn',
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		(int) 0 => '875915',
		(int) 1 => 'stockman-boarding-house-vs-insurance-corpn'
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$title_for_layout = 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '875915',
		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
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$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR2000Cal219',
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			'respondent' => 'Life Insurance Corpn. of India and ors.',
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		'appellant' => 'Stockman Boarding House',
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		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
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		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
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		'decidedon' => '2000-03-29',
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		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'pubs' => 'AIR2000Cal219',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
		'sub' => 'Property',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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(2) Whether the valid service of notice in terms of Section 13(6) of the West Bengal Premises Tenancy Act, 1956 was a prerequisite for maintianing the suit

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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	),
	'casename_url' => 'stockman-boarding-house-vs-insurance-corpn',
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		(int) 0 => '875915',
		(int) 1 => 'stockman-boarding-house-vs-insurance-corpn'
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$title_for_layout = 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '875915',
		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
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$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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Regarding Question (1).

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2000Cal219',
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			'respondent' => 'Life Insurance Corpn. of India and ors.',
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		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
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		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
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		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
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		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => 'AIR2000Cal219',
		'ratiodecidendi' => '',
		'respondent' => 'Life Insurance Corpn. of India and ors.',
		'sub' => 'Property',
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		'circuit' => null
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$caseref = 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain<br>'
$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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$cnt = (int) 38
$i = (int) 24
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8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant.

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
	'desc' => array(
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			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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$title_for_layout = 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '875915',
		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
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$caseref = 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain<br>'
$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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9. Regarding question (2).

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
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		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
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		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
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		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
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		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR2000Cal219',
		'ratiodecidendi' => '',
		'respondent' => 'Life Insurance Corpn. of India and ors.',
		'sub' => 'Property',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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Section 13(6) of the West Bengal Premises Tenancy Act, 1956 reads thus -

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
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			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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	'casename_url' => 'stockman-boarding-house-vs-insurance-corpn',
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		(int) 0 => '875915',
		(int) 1 => 'stockman-boarding-house-vs-insurance-corpn'
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$title_for_layout = 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '875915',
		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
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$caseref = 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain<br>'
$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.'

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR2000Cal219',
		'ratiodecidendi' => '',
		'respondent' => 'Life Insurance Corpn. of India and ors.',
		'sub' => 'Property',
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		'circuit' => null
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$ctype = ' High Court'
$caseref = 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain<br>'
$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served.

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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	),
	'casename_url' => 'stockman-boarding-house-vs-insurance-corpn',
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		(int) 0 => '875915',
		(int) 1 => 'stockman-boarding-house-vs-insurance-corpn'
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$title_for_layout = 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '875915',
		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
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$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required.

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
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		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
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		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
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		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
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		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'pubs' => 'AIR2000Cal219',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
		'sub' => 'Property',
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		'circuit' => null
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$ctype = ' High Court'
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	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
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12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance.

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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	),
	'casename_url' => 'stockman-boarding-house-vs-insurance-corpn',
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		(int) 0 => '875915',
		(int) 1 => 'stockman-boarding-house-vs-insurance-corpn'
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$title_for_layout = 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '875915',
		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
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$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
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13. The question as to whether there has been a valid service of notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question.

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR2000Cal219',
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			'respondent' => 'Life Insurance Corpn. of India and ors.',
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		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
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		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
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		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
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		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
		'observations' => null,
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		'pubs' => 'AIR2000Cal219',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
		'sub' => 'Property',
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		'circuit' => null
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$ctype = ' High Court'
$caseref = 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain<br>'
$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
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14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance.

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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	),
	'casename_url' => 'stockman-boarding-house-vs-insurance-corpn',
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		(int) 0 => '875915',
		(int) 1 => 'stockman-boarding-house-vs-insurance-corpn'
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$title_for_layout = 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '875915',
		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
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$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge,

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR2000Cal219',
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			'respondent' => 'Life Insurance Corpn. of India and ors.',
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		'appellant' => 'Stockman Boarding House',
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		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
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		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
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		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'pubs' => 'AIR2000Cal219',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
		'sub' => 'Property',
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	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs.

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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	),
	'casename_url' => 'stockman-boarding-house-vs-insurance-corpn',
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		(int) 0 => '875915',
		(int) 1 => 'stockman-boarding-house-vs-insurance-corpn'
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$title_for_layout = 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '875915',
		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
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$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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17. Prayer for stay of operation of the judgment is considered and refused.

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
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		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
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		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
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		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR2000Cal219',
		'ratiodecidendi' => '',
		'respondent' => 'Life Insurance Corpn. of India and ors.',
		'sub' => 'Property',
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		'circuit' => null
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$ctype = ' High Court'
$caseref = 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain<br>'
$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
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18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking.

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	'title_for_layout' => 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '875915',
			'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
			'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
			'appellant' => 'Stockman Boarding House',
			'authreffered' => '',
			'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
			'citingcases' => '',
			'counselplain' => 'Ashish Chakraborty, Adv.',
			'counseldef' => 'Sandip Mukherjee, Adv.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2000-03-29',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
			'judgement' => '<p style="text-align: justify;">1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p style="text-align: justify;">2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p style="text-align: justify;">3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p style="text-align: justify;">4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p style="text-align: justify;">'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p style="text-align: justify;"> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p style="text-align: justify;">5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p style="text-align: justify;">' 1) Is the suit maintainable </p><p style="text-align: justify;"> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p style="text-align: justify;"> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p style="text-align: justify;"> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p style="text-align: justify;"> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p style="text-align: justify;"> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p style="text-align: justify;"> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p style="text-align: justify;"> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p style="text-align: justify;">Certain additional issues were also framed which are as follows :-- </p><p style="text-align: justify;">'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p style="text-align: justify;"> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p style="text-align: justify;"> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p style="text-align: justify;">6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p style="text-align: justify;">7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p style="text-align: justify;">(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p style="text-align: justify;"> (2) Whether the valid service of notice in terms of Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p style="text-align: justify;">Regarding Question (1). </p><p style="text-align: justify;">8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p style="text-align: justify;">9. Regarding question (2). </p><p style="text-align: justify;">Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p style="text-align: justify;">'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p style="text-align: justify;">10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p style="text-align: justify;">11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p style="text-align: justify;">12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p style="text-align: justify;">13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p style="text-align: justify;">14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p style="text-align: justify;">15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p style="text-align: justify;">16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p style="text-align: justify;">17. Prayer for stay of operation of the judgment is considered and refused. </p><p style="text-align: justify;">18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
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			'pubs' => 'AIR2000Cal219',
			'ratiodecidendi' => '',
			'respondent' => 'Life Insurance Corpn. of India and ors.',
			'sub' => 'Property',
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			'circuit' => null
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	'casename_url' => 'stockman-boarding-house-vs-insurance-corpn',
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		(int) 0 => '875915',
		(int) 1 => 'stockman-boarding-house-vs-insurance-corpn'
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$title_for_layout = 'Stockman Boarding House Vs Life Insurance Corpn of India and ors - Citation 875915 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '875915',
		'acts' => '<a href="/act/137820/west-bengal-premises-tenancy-act-1956-complete-act">West Bengal Premises Tenancy Act, 1956</a> - Section 13 and 13(6)',
		'appealno' => 'Appeal No. 203 of 1989, C.S. No. 497 of 1973 and EO Suit Nos. 12 and 13 of 1975',
		'appellant' => 'Stockman Boarding House',
		'authreffered' => '',
		'casename' => 'Stockman Boarding House Vs. Life Insurance Corpn. of India and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain;',
		'citingcases' => '',
		'counselplain' => 'Ashish Chakraborty, Adv.',
		'counseldef' => 'Sandip Mukherjee, Adv.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2000-03-29',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Satyabrata Sinha and ;M.H.S. Ansari, JJ.',
		'judgement' => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. </p><p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. </p><p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. </p><p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- </p><p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. </p><p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' </p><p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- </p><p>' 1) Is the suit maintainable </p><p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise </p><p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times </p><p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business </p><p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill </p><p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. </p><p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf </p><p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' </p><p>Certain additional issues were also framed which are as follows :-- </p><p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom </p><p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom </p><p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' </p><p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . </p><p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- </p><p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant </p><p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit </p><p>Regarding Question (1). </p><p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. </p><p>9. Regarding question (2). </p><p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - </p><p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' </p><p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. </p><p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. </p><p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. </p><p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. </p><p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. </p><p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, </p><p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. </p><p>17. Prayer for stay of operation of the judgment is considered and refused. </p><p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p></p><p>',
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		'respondent' => 'Life Insurance Corpn. of India and ors.',
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$caseref = 'In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain<br>'
$content = array(
	(int) 0 => '<p>1. The defendant No. 2 is the appellant in this appeal which is directed against a judgment and decree dated 17th Feb. 1989 passed by a learned single Judge of this Court whereby and whereunder the suit for eviction filed by the first respondent herein was decreed. ',
	(int) 1 => '<p>2. In view of the question raised in this appeal it is not necessary to state the fact of the matter in details. Suffice it to say that admittedly by a registered Indenture of Lease dated 15-11-1949 between Prudential Assurance Company Limited, the predecessor in Interest of the first respondent herein and the defendant No. 1 Mrs. Harmine Madath alias Mrs. H, Madath and Mr. Vasgen David Gatachick, the premises in question were demised for a term of three years from 1-10-1949. Allegedly such a demise was made for the purposes mentioned in the Deed of Lease. The plaintiff contended that the aforementioned Vasgen David Gatachick surrendered joint lease whereafter the defendant No. 1 became the sole monthly tenant under the said Prudential Assurance Co. Ltd. The right, title and interest of the aforementioned Prudential Assurance Co. Ltd. vested in the respondent No. 1 herein in terms of the provisions of the Life Insurance Corporation Act. ',
	(int) 2 => '<p>3. By a notice datd 27th April, 1971 the aforementioned tenancy of the defendant No. 1 was determined. As the defendant No. 1 did not vacate the suit premises the aforementioned suit was filed. ',
	(int) 3 => '<p>4. In the plaint it was alleged that the appellant herein has been inducted by the said defendant as a sub-tenant. In the written Statement it has inter alia been stated as follows ;-- ',
	(int) 4 => '<p>'That the statements, contentions and insinuations made in paragraph No. 4 of the plaint are not wholly correct. The above Boarding House business was started by Mr. and Mrs. Stockman and this business had been carried on in the relevant flats under the name and style of 'Stockman Boarding House' some 40 years ago much earlier than the premises were taken over by the Life Insurance Corporation. On death of Mr. Stockman, his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs. Mary More and Mrs. H. Madath, who transferred this share to her husband Mr. Madath. Thereafter the above business was continued under the same name and style of 'Stockman Boarding House.', by four partners, namely, Mr. Mrs. More, Mrs. T.A. Gasper and Mr. H. Madath, and the lease in the name of Mrs. Madath was for the benefit of the said business, as thereinafter stated in details below. Thus all the tenancies concerned in respect of different premises within No. 12, Park Street, Calcutta, were from the very beginning held firstly by Mr. and Mrs. Stockman and thereafter by the aforesaid partners for the purpose of registered firm styled and declared as Stockman Boarding House and as such the said firm in its own name issued cheques for each of the aforesaid rents signed by any partner as was convenient. It is false to suggest that only two persons aforesaid individually paid the 'Rent' or that those tenancies at will started by holding over by them on and from 2-10-1952 or that the monthly tenancy commences from 2nd day of a month ending with the first day of the succeeding month as most falsely stated or at all. As a matter of fact the entire aforesaid different tenancies were taken out for the purposes of Boarding House business styled Stockman Boarding House and has been since then held for and on behalf of the already created and established business firm styled Messrs. Stockman BoardingHouse through the aforesaid the then sole partners acting as such partners, representing the firm, the area being the market area for Hotel and Boarding House business. ',
	(int) 5 => '<p> That the statements made in paragraph No. 6 of plaint are entirely false. It is totally false to say that Mr. V.D. Catchick surrendered and relinquished all his right, title and interests in all the aforesaid tenancies in respect of different premsies under separate and distinct rent receipts either by writing or verbally to the plaintiff as most falsely contended. It is similarly a blatant lie to suggest that 'Since then' said Mrs. Madath was made and became the sole monthly tenant of all the aforesaid tenancies as most falsely stated. This document challenges the plaintiff to specifically state when and how said Mr. Catchick surrendered his tenancies to the plaintiff and when said Mrs. Madath was accepted either in writing or verbally as the sole tenant in her individual capacity. It is totally denied that Mrs. Madath who had partner of the Defendant No. 2 Firm held the tenancy ever in the fashion that the months should commence from 2nd day and ending with the 1st day of succeeding month as most falsely stated. The real facts and circumstances which the plaintiff suppressed by simply referring to the exist of said Mr. Catchick calling the same a surrender of tenancy, are hereinafter stated.' ',
	(int) 6 => '<p>5. The appellant herein sought to raise a further question that as the business of lodging was continued by the appellant herein after the partnership agreement was entered into by and between the parlies in the manner as stated in the written statement, it ceased to be a sub-tenant and continued to be a tenant. The learned trial Judge upon considering the rival contentions of the parties framed the following issues :-- ',
	(int) 7 => '<p>' 1) Is the suit maintainable ',
	(int) 8 => '<p> (2) Is the plaintiff landlords of the defendants Was such relationship ever established by letters of attornment or otherwise ',
	(int) 9 => '<p> (3) Do the 9 different suit flats comprise different respective tenancies, involving different rent receipt and payable at different times ',
	(int) 10 => '<p> (4) Were the suit flats taken for the exclusive purposes of hotel and boarding house business ',
	(int) 11 => '<p> (5) Is the defendant No. 2 the actual tenant of the suit flats since 1932 and is he still in possession carrying on the same business with same goodwill ',
	(int) 12 => '<p> (6) Did the plaintiff accept payments by Bank cheques as rents of all the suit flats, thereafter, from defendant No. 4 as Receiver of the suit tenancies and business tendering for and on behalf of the defendant No. 2, and for Mrs. Mary More as per order of High Court If so, is the suit barred by waiver and estoppel. ',
	(int) 13 => '<p> (7) Is the suit bad for non-joinder of necessary party viz., Marry More who were notified by High Court to plaintiff, through Receiver to be in possession of the suit flats after the plaintiff having accepted rents tendered on her behalf ',
	(int) 14 => '<p> (8) Was the alleged notice of ejectment even legally served If so, is the same valid, sufficient and legal ?' ',
	(int) 15 => '<p>Certain additional issues were also framed which are as follows :-- ',
	(int) 16 => '<p>'(1) Is the plaintiff entitled to a decree and arrears of rent if so, several what amount and against whom ',
	(int) 17 => '<p> (2) Is the plaintiff entitled to get the mesne profits If so, and what amount and against whom ',
	(int) 18 => '<p> (3) Is the plaintiff entitled to get decree for the charges for consumption of Gas and electricity as claimed in the amended plaint. If so, what amount and against whom ?' ',
	(int) 19 => '<p>6. The learned Trial Judge has answered all the material issues in favour of the plaintiff and against the defendants. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has raised two contentions in support of this appeal. Firstly, it was submitted that the appellant having become tenant in respect of the demised premises the learned trial Judge erred in decreeing the suit. It was further contended that even assuming that the appellant was sub-tenant of the defendant No. 1 but as no valid notice in terms of Section 13(6) of the West Bengal Premsies Tenancy Act, 1956 had been served upon the defendant No. 1 the suit ought to have been dismissed by the learned trial Judge, In support of the aforementioned contentions strong reliance has been placed by the learned counsel upon the decision of the learned single Judge of this Court in Binani Properties Pvt. Ltd. v. M. Gulamali Abdul Hossain reported in : AIR1967Cal390 . ',
	(int) 20 => '<p>7. Mr. Sandip Mukherjee, learned counsel appearing on behalf of the respondent on the other hand supported the judgment. In view of the rival contentions of the appellant the questions which raised for consideration in this appeal are as follows :-- ',
	(int) 21 => '<p>(1) Whether the learned trial Judge erred in holding that the appellant was a subtenant and not a tenant ',
	(int) 22 => '<p> (2) Whether the valid service of notice in terms of Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> was a prerequisite for maintianing the suit ',
	(int) 23 => '<p>Regarding Question (1). ',
	(int) 24 => '<p>8. The factum of execution of the Indenture of Lease dated 15-11-1949 is not in dispute. By reason of the said Indenture of Lease Prudential Assurance Co. Ltd. demised the premises mentioned therein in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. Although it was argued that appellant had been in possession of the premises in question prior to the aforementioned execution of the deed of lease, the said question in the instant case cannot arise, as even if the said contention is accepted as correct such a tenancy must be deemed to have been surrendered and a fresh lease must be held to have been executed by the predecessor-in-interest of the respondent in favour of Mrs. Hermine Madath and Mr. Vasgen David Catchick. In view of the fact that as noticed hereinbefore the appellant herein claimed its rights, title and interest as a tenant under or through the defendant No. 1 who was originally inducted as one of the tenants. The very fact that the defendant in her written statement categorically stated that on the death of Mr. Stockman his widow Mrs. Stockman made a transfer of the business to Mr. T.A. Gasper, Mr. V. Catchick, Mrs, Mary More and Mrs. H. Madath, who transferred her share to her husband Mr. Madath is itself pointer to the fact that a sub-tenancy had been created. Admittedly, therefore, there had been a transfer by the Lease in favour of the third party and the possession was also handed over. Thus the defendant No. 2 had been in exclusive possession of the properties in question to the exclusion of the defendant No. 1 which fact has not been denied or disputed. The said admitted fact therefore leaves no manner of doubt that the defendant No. 2 is a subtenant. ',
	(int) 25 => '<p>9. Regarding question (2). ',
	(int) 26 => '<p>Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> reads thus - ',
	(int) 27 => '<p>'13(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.' ',
	(int) 28 => '<p>10. As would appear from issue No. 8 no issue was framed as regards the validity of the notice but the only question which was raised as to was whether a valid notice was served. ',
	(int) 29 => '<p>11. The learned trial Judge has not only found that there has been a valid service of notice upon the defendant No. 1 but has also found that the plaintiff has also served a notice upon the defendant No. 2/appellant although in law the same was not required. ',
	(int) 30 => '<p>12. Keeping in view the fact that the defence of the appellant herein was that he was himself a tenant and a notice of termination having been validly served upon him, the question as to whether notice had been validly served upon the defendant No. 1 or not in our considered opinion takes a backseat in the instant case. In any event the defendant No. 2 was not even required to be impleaded as a party in the suit as it is not the case of the defendant that the subtenancy was created in his favour by the tenant in accordance with law. If the appellant was not a necessary party in the suit, except for limited purposes, the appeal is not maintainable at his instance. ',
	(int) 31 => '<p>13. The question as to whether there has been a valid service of notice under Section 13(6) of the <a>West Bengal Premises Tenancy Act, 1956</a> or not in our considered opinion can be taken only by the defendant No. 1 tenant she or her legal heirs and representatives having not filed any appeal against the judgment and decree which was passed ex parte against her, the appellant herein has no locus standi to raise the said question. ',
	(int) 32 => '<p>14. Even otherwise a notice of termination of service can be waived by the defendant. Even service of a notice under Section 80 of the Code of Civil Procedure can be waived. It is one thing to say that the Court lacks inherent jurisdiction in passing a decree in a suit and it is another thing to say that the Court ought not to have decreed the suit because the condition for passing a decree has not been fulfilled. Whereas in the first case a question of waiver will not arise, in the second case the same does. Once the defendant is entitled to waive his right to be served with a notice, the question of dismissing a suit on the ground of non service of notice loses all its importance. ',
	(int) 33 => '<p>15. In Binani Properties Pvt. Ltd. v. M. Gullamali Abdul Hossain & Co. reported in : AIR1967Cal390 , the learned single Judge has not considered this aspect of the matter and thus the said decision cannot be said to be an authority for the proposition on the questions with which we are concerned with the instant case. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the judgment and decree passed by the learned Judge, ',
	(int) 34 => '<p>16. For the reasons aforementioned, this appeal is dismissed with costs. Advocate's fee is assessed at 100 GMs. ',
	(int) 35 => '<p>17. Prayer for stay of operation of the judgment is considered and refused. ',
	(int) 36 => '<p>18. Xerox certified copies of this judgment and order be made available to the parties on priority basis on the usual undertaking. <p>',
	(int) 37 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 38
$i = (int) 37
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