TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS ................................................................................ 03

2. INDEX OFAUTHORITIES .................................................................................. 04

3. STATEMENT OF JURISDICTION ................................................................... 07

4. STATEMENT OF FACTS .................................................................................... 08

5. SUMMARY OF ARGUMENTS ........................................................................... 12

6. ARGUMENT IN ADVANCE ............................................................................... 13

7. PRAYER ................................................................................................................ 26

MEMORIAL ON BEHALF OF RESPONDENT Page 1

MEMORIAL ON BEHALF OF RESPONDENT Page 1
 LIST OF ABBREVIATIONS

AIR All India Reporter

Ans Anothers

Art Article

Cl.Ap Civil Appeal

TPA Transfer of Property Act

H.C. High Court

WBPTA West Bengal Premises And Tenancy Act

Ld Learned

Ors Others

r/w Read with

S.C Supreme Court

SCC Supreme Court Case

Sec Section

u/a Under Article

u/s Under Section

v. Versus

CPC Code of Civil Procedure

p.g Page

L.n Line

3|Page
 INDEX OF AUTHORITIES

Sr. Case name Citation Page

no. no.
1. 3Ammal V. G. Thangapalam (1995) 6 SCC 213 14
.
2. B arvind kumar v. Union of Writ Petition (Civil) No. 462/2007 14,20
India
3. Bishwanath V. Anjali AIR1975 Cal.45 25
4. 1C. Sarala v. Nalinak bhan AIR 1991 Ker 362 18
.
5. 8Chandrasekhar singh & ors. (1979) 3 SCC 118 17,30
. Vs. Siva ram singh & ors
6. 1Chunilal v. Mehta and sons (2001) 6 SCC 652 14
. ltd. Century spg. And mfg.
Co. Ltd
7. 1Deokinandan boobna v hara (1988) 1 Cal LJ 278: (1981) 1 CHN 180. 24
7Sundar sarkar
.
8. 1Jibon v taramoyee AIR 1979 Cal 383 22
.
9. Kashibai V. Parwatibai (1996) 3 SCC 392 14
10. Kk. Verma v. Union of india 1905 ILR Bom 213 22
11. 8M. Narasimha reddy v. M. AIR1976 A.P.77 25
. Moosamma
12. 1M.r.s. ramakrishnan v. AIR 1982 Mad 431 22
4Assistant director of ex-
. servicemen welfare
13. 2N.c dastane v. S dastane AIR 1957S.C 1534 26
.
14. 1Nanalal girgharlal v. AIR 1973 Guj 131 21
1Gulamnabi jamaibhai
. Moterwala
15. 5Nathu lal v. Union of india AIR 1932 All 65 15, 20
.
16. 2Pushpa rana v.vijay pal AIR1994 All 216 27
.
17. 7Ramsewak v sain datta AIR 1967 Del 113 16,24
.
18. 1Raptakos brett and co. Ltd AIR 1998 7 SCC 184 22
5V. Ganesh property,
.
19. 1Rudrappa V. Narsingrao (1905) LR 29 Bom 213 22
2
.
MEMORIAL ON BEHALF OF RESPONDENT
 20. 2S jayakumari v. S. Krishna AIR1995 Ker 139 at 140 26
1Nair
.
21. 9S. Hanumantha rao v. S AIR 1999 SC 1318 at 1320 18, 26
. raman
22. 6Secy, of state v. Bhupal 39 Ind Cas 409 15,21
. chandraray
23. 2Sulekha bairangi v. Kamala AIR 1980 Cal 370 26
0kant bairangi
.

MEMORIAL ON BEHALF OF RESPONDENT

 Statutes Referred
 TRANSFER OF PROPERTY ACT
 WEST BENGAL PREMISIS AND TENANCY ACT
 CONSTITUTION OF INDICA 1950
 CODE OF CIVIL PROCEDURE
 HINDU MARRIAGE ACT 1955

Books and Commentary

 Dr. AVTAR SINGH – THE TRANSFER OF PROPERTY ACT
 VEPA. P. SARATHI – TRANSFER OF PROPERTY ACT

Web Resources
Serial No Title Web Address
1 Manupatra www.manupatra.co.in/
2 Lexis Nexis www.lexisnexis.co.in/
3 Live Law www.livelaw.in/
4 SCC Online www.scconline.in/
5 The Wire www.thewire.in/
6 Calcutta High Court www.calcuttahighcourt.nic.in/

Legal Dictionaries
Serial No Title

1 Merriam-Webster's Law Dictionary: Legal Terms in Plain English

2 Dictionary of Law - Oxford Reference
3 Black's Law Dictionary

MEMORIAL ON BEHALF OF RESPONDENT Page 5

 MEMORIAL ON THE BEHALF OF RESPONDENTS

STATEMENT OF JURISDICTION

It is humbly submitted that Appellant has approached this Hon’ble High Court under Article 227
of the Constitution of Indica 1950. and Section 100 of Code of Civil Procedure.

The respondents have appeared to the Hon’ble H.C of Metropolis, Indica in response to the
appeal filed by the appellant.

MEMORIAL ON BEHALF OF RESPONDENT Page 6

 STATEMENT OF FACTS

1. Rahul and Riya both are residents of Ambridge, a town in State of Metropolis, Indica and
are Hindus, they got married in February, 2011at Ambridge, Indica under the Hindu
Marriage Act, 1955. Immediately after their marriage both of them shifted to Jabalpur,
another city of Metropolis State, Indica, where Rahul is working since 2009.

2. Rahul and Riya took a flat on rent in Jamalpur after shifting to the new city. Mr. Ramakant
Shukla is their landlord who stays on the 2nd floor and gives the 1st floor on rent to Rahul
and Riya.

3. Mr. Ramakant Shukla makes an agreement for 11 months (i.e. from 01st March, 2011 to
28th February, 2012) with Rahul and Riya regarding renting the flat and handing over the
premises to both of them on 10,000/- per month.

4. Rahul and Riya started living in the aforementioned premises from 01st March, 2011.
Things were going good until Rahul lost his job in last week of May, 2011. However, Riya
was completely unaware of this incident.

5. Riya started working in a KidZee in Jamalpur as she used to get bored at home after Rahul
left for job. Riya was paid Rs. 5000/- per month. Rahul used to earn Rs. 20000/- per month.

6. Due to the loss of job of Rahul, the rent of the property remained due for 6 months
consecutively. However, Riya did not know the reason for such delay as to the payment of
the rent and kept on asking Rahul, while Rahul was trying to avoid confronting Riya.

7. At last, in November, 2011 Mr. Ramakant Shukla sent a notice to the Couple expressing his
desire to not continue the agreement with the couple. The said notice also disclosed that Mr.
Ramakant Shukla wanted the couple to leave the premises within 1 month.

MEMORIAL ON BEHALF OF RESPONDENT Page 6

8. Receiving this notice Riya confronted Rahul that followed a heated argument. Following
the argument Riya was informed about the unemployed status of Rahul.

9. Following this Riya left that house on 01st December, 2011 and went to her home at
Ambridge. Rahul made several attempts to call her and talk to her; however, everything
seemed to go in vain. Riya did not pay any heed and stayed back in her parental home.

10. It was on 22nd April, 2015 Riya came back to the shared flat at Jamalpur that the couple
had rented.

11. Mr. Ramakant shukla made repeated requests to Rahul during the absence of Riya to pay
the rent. However, every time Rahul has paid month for some months and then became
defaulter again and again for several months. Therefore, the payment of rent was irregular
in nature.

12. After coming back Riya asked Rahul to leave the said flat and also talked to Mr. Ramakant
Shukla that from now onwards Riya would stay in the flat and would pay the rent. Riya also
informed Rahul that she wanted to divorce him as he hide the fact of his unemployment to
her thereby causing mental trauma.

13. Mr. Ramakant Shukla did not want to face any unwanted problem therefore, he asked Riya
to vacate that flat no matter she agreed to pay the rent. Mr. Ramakant shukla has issued a
notice for eviction to the couple in May, 2015.

14. When the couple did not vacate the premises Mr. Ramakant Shukla filed a suit for eviction
against Mr. Rahul and Ms. Riya before the Controller in June, 2015.

Ms. Riya in the abovementioned suit contended that

MEMORIAL ON BEHALF OF RESPONDENT Page 6

 a. she was having a matrimonial dispute with her husband regarding which she had
to take a decision,
b. She had a job in Jamalpur therefore she wished to stay back in the town and did
not want to go back to her parental home and be a burden upon her parents,
c. She needed a safe place to stay in the city

Therefore, vacating the premises would not be possible for her. She made a prayer before
the Controller to order for the continuation of the tenancy.
Mr. Ramakant Shukla contended that
a. He requires the suit property for his personal use, &
b. The couple became defaulter in paying the rent amount.

Therefore, he prayed before the Controller to order for eviction of the

couple.

15. Simultaneously, Rahul filed a suit for Restitution of Conjugal rights under section 9 of the
Hindu Marriage Act, 1955 before the District Court stated-
a. The reason because of which Riya has withdrawn herself from the conjugal
relationship with him is unreasonable,
b. That he wanted to continue this marriage with Riya.

16. The Controller in the suit for eviction decided in favour of Mr. Ramakant Shukla and
ordered Ms. Riya to vacate the suit property.

17. The suit for restitution of conjugal right between Mr. Rahul and Ms. Riya was still pending
before the competent court.

18. After the decision of the Controller Mr. Rahul left the suit property. However, Ms. Riya did
not vacate the suit property and decided to file an appeal before the Tribunal.

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 MEMORIAL ON THE BEHALF OF RESPONDENTS

19. An appeal was filed by Ms. Riya against the decision of the Controller to the Tribunal.
However, the Tribunal upheld the decision of the Controller and asked Ms. Riya to vacate
the suit property.

20. Aggrieved by the decision of the Tribunal Ms. Riya filed an appeal before the High Court
of Metropolis, Indica contending that the order of the trial court regarding eviction of Ms.
Riya from the suit property amounted to grave injustice. Therefore, the Appellate court
should consider the situation and order accordingly.

21. During the pendency of the appeal before the High Court of Metropolis, Indica the issue of
matrimonial dispute between Ms. Riya and her Husband Mr. Rahul came up. This also led
to the disclosure of pendency of suit for restitution of conjugal rights before the District
Court.

22. Considering the issue of matrimonial dispute between Mr. Rahul and Ms. Riya an important
issue, the High Court of Metropolis issued a notice under Article 227 of the Constitution of
Indica to the District Court and took up the suit for adjudication.

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SUMMARY OF ARGUMENTS

1. Whether the present suit is maintainable both in law and in fact?

This is humbly submitted before this honorable court that the rent appeal is not maintainable in
law and facts, That the rent petition nothing involve the any substantial question of law and as
well facts are not as such it may allowed by the Hon’ble court. The matrimonial petition is
maintainable in law and facts.

2. Whether there is landlord and tenant relationship between Ms. Riya and Mr. Ramakant
Shukla under the Transfer of Property Act?
It is humbly submitted before the Hon’ble court that the Appellant is not a tenant and Respondent
is the Landlord u/s 105 of Transfer of Property Act and u/s 3(g) and 3(c) of The West Bengal
Premises Tenancy Act, 1997. The decision of the Controller and tribunal is valid and justifiable.

3. Whether concealment of the fact of unemployment of Mr. Rahul is just and reasonable
ground for withdrawal from the conjugal relationship by Ms. Riya?

This is to be submitted before the honorable court that the concealment of fact of unemployment
of respondent no. 2 is a not reasonable ground for withdrawal from the conjugal relationship.
That the respondent no. 2 had no any malafide intension to concealment of fact of
unemployment.

Whether the High Court of Metropolis, Indica has the power to take up any case from a
Subordinate Court under Article 227 of the Constitution of Indica?
It is humbly submitted before this Hon’ble court that the power of H.C under article 227 of the
constitution of Indica is maintainable in the present case as there is nexus between these two
matters. And the court having wider powers under Article 228 to call a matter from subordinate
courts.

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ARGUMENT IN ADVANCED

1. Whether the present suit is maintainable both in law and in fact?

This is humbly submitted before this honorable court that the rent appeal is maintainable in law
and facts but the matrimonial petition is not maintainable in law and facts.

1.1 Whether rent appeal maintainable in law?

It is humbly submitted before this Hon’ble H.C of Metropolis, Indica that the present appeal is not
maintainable u/s 100 of CPC. H.C is satisfied that the case involves a substantial question of law
but in present appeal does not include any substantial question of law.

As per Section 100 of CPC the second appeal to the High Court from an appellate decree.

Second appeal:

(1) Save as otherwise expressly provided in the body of this Code or by any other law for the
time being in force, an appeal shall lie to the High Court from every decree passed in appeal by
any court subordinate to the High Court, if the High Court is satisfied that the case involves a
substantial question of law.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it
shall formulate that question1
In Annapoorani Ammal v. G. Thangapalam the Supreme Court held that a perusal of Section 100
CPC clearly indicates that the High Court had the jurisdiction to interfere only when a substantial
question of law is involved and even then it is expected that such a question shall be so framed
although the court is not bound by that question as the proviso indicates.2

1
Section 100 of Code of civil Procedure
2
(1995) 6 SCC 213
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Chunilal V. Mehta and Sons Ltd. v. Century Spg. and Mfg. Co. Ltd.while determining the
said expression occurring in Article 133(1) of the Constitution of India. The Supreme Court laid
down the test as follows:

"The proper test for determining whether a question of law raised in the case is substantial
would, in our opinion, be whether it is of general public importance or whether it directly and
substantially affects the rights of the parties and if so whether it is either an open question in the
sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or
is not free from difficulty or calls for discussion of alternative views. If the question is settled by
the highest court or the general principles to be applied in determining the question are well
settled and there is a mere question of applying those principles or that the plea raised is palpably
absurd the question would not be a substantial question of law."3

The present case does not involve the substantial question of law and nothing anything of general
public importance is involved in the present case .

Kashibai v. Parwatibai the Supreme Court observed as under:

"It may not be out of place to mention that sub-section (1) of Section 100 of the Code of Civil
Procedure explicitly provides that an appeal shall lie to the High Court from every decree passed
in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case
involves a substantial question of law. Sub-section (4) of Section 100 provides that when the
High Court is satisfied that a substantial question of law is involved in any case it shall formulate
that question.”4

Ammal v. G. Thangapalam the Supreme Court held that a perusal of Section 100 CPC clearly
indicates that the High Court had the jurisdiction to interfere only when a substantial question of
law is involved and even then it is expected that such a question shall be so framed although the
court is not bound by that question as the proviso indicates.5

The present case does not involve the substantial question of law and nothing anything of general
public importance is involved in the present case.

3
(2001) 6 SCC 652
4
(1996) 3 SCC 392
5
(1996) 3 SCC 392
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In M.S.V. Raja v. Seeni Thevar it was held by the Supreme Court that the formulation of a
substantial question of law may be inferred from the kind of questions actually considered and
decided by the High Court in second appeal, even though the substantial questions of law were not
specifically and separately formulated.6

1.2 Whether rent appeal maintainable in fact?

Anamika Roy v. Jatindra Chowrasiya and others, A lease of immovable property is a transfer of
a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in
consideration of a price paid or promised, or of money, a share of crops, service or any other thing of
value, to be rendered periodically or on specified occasions to the transferor by the transferee, who
accepts the transfer on such terms.7

According to the above mentioned cases and definition under section 105 of TPA clarifies that the
appellant is not the tenant of Respondent because all the ingredients are satisfied:

B Arvind Kumar V. Union of India the Supreme Court has given the essential ingredient under this
case. There should be a transfer of right to enjoy an immovable property; such transfer may be for a
certain term or in perpetuity. The transfer should be in consideration of a premium or rent the
transfer should be a bilateral transaction and the transferee accepting the term of transfer.8

According to the above mentioned case under section 105 of TPA clarifies that the appellant is not
the tenant of Respondent because all the ingredients are not satisfied:

Kalpana Gopalkrishna Singhania and ors. Vs. Naresh M. Kabra it was held as under Transfer of
Property Act, section 105 Suit for ejectment of defendant as trespasser Question whether defendant
is tenant. Recovery of rent from defendant by a person who is not owner of land in question it cannot
give right to defendant as tenant or amount to recognition of his alleged tenancy. Evidence Act, Suit

6
AIR 1963 SC 302
7
(2016) 10 SCC 209
8
Writ Petition (Civil) No. 462/2007
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for ejectment of trespasser-plaintiff's title undisputed Burden of proof Failure of defendant to prove
his plea Effect Transfer of Property Act under section 105.Where in suit for ejectment of defendant
as trespasser the plaintiff proves his title and the defendant sets up plea of title by way of tenancy
under which he seeks to be in occupation of the suit land, it will be for him to establish that title.
Unless he does so, the plaintiff by virtue of his title will be entitled to possession of suit land and the
defendant must be held to be trespasser.9

Nathu lal v. Union of India Every tenancy is based upon an agreement between two persons
and contains covenants expressed or implied by one person with the other. The tenancy must
stand or fall with the agreement on which it is founded and with the covenants contained in it and
they fall so does the tenancy.6

According to the above mentioned cases and definition under section 105 of TPA clarifies that
the appellant is the tenant of Respondent because all the ingredients are satisfied:

The appellant have a transfer right to enjoy an immovable property. The appellant and
respondent make a valid agreement for a specific time period in which appellant name is
mentioned. An agreement for 11 months (i.e. from 01st March, 2011 to 28th February, 2012)
with Rahul and Riya regarding renting the flat and handing over the premises to both of them on
10,000/- per month.

The appellant has a personal issues as she had a job in Jamalpur therefore she wished to stay
back in the town and did not want to go back to her parental home and be a burden upon her
parents moreover she needed a safe place to stay in the city
Priyavarte Mehta vs Amrendu Banerjee, it provides that if the amount of 2 months’ rent,
lawfully payable by the tenant and due from him is in arrears and if tenant has not paid within time
fixed by the contract or if there is no such contract than by the last day of the month next following
that for which the rent is payable and not having deposited the rent in accordance with the provision
of the said Act, will be liable for eviction.10
In the present scenario after the arrear of rent takes the agreement at end there is an implied consent

9
2002(5)BomCR370
10
AIR 1997 Pat 114
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of the appellant that the tenancy will be continued as the respondent no 2 did not able to pay rent.
Grounds for eviction: A landlord can ask the tenant to leave if he has completed the tenure as per
the lease agreement. Other valid grounds are refusal to pay the rent or indulging in unlawful
activities on your property. Landlord can demand eviction if the tenant has sub-let a part or all of
your property without your permission.
If applied in the present case the landlord have sufficient ground for eviction because the appellant
and respondent no.2 did not pay rent. The Controller and tribunal give valid and justifiable
decision.
In the present case the respondent no 1 gave the sufficient ground to evict the appellant and the all
the conditions are fulfilled by the respondent

1.3 Whether the matrimonial petition maintainable in law?

That the court having the wider powers to adjudicate the matter under Article 227 of Constituion of
indica and the appeal is maintainable In law. The hon’ble high court has clubbed the Appeal and the
suit for restitution of conjugal rights which is its inherent power and the constitutional right. The
power of high court to take up the case and club it with subject matter which are nexus with each
other are under the power of high court mentioned in Article 227 of constitution of Indica

In Surya Dev Rai v. Ram Chander Rai the Apex Court held that, Article 227of the Constitution
confers on every High Court the power of superintendence over all courts and tribunals throughout
the territories in relation to which it exercises jurisdiction excepting any court or tribunal
constituted by or under any law relating to the Armed Forces. The jurisdiction under Article227 can
be traced back to Section 15 of High Courts Act, 1861 which gave a power of judicial
superintendence to the High Court apart from and independently of the provisions of other laws
conferring revisionsal jurisdiction on the High Court. Section 107 of the Government of India Act,
1915 and then Section 224 of the Government of India Act, 1935 were similarly worded and
reproduced the predecessor provision. However, sub-section (2) was added in Section 224 which
confined the jurisdiction of the High Court to such judgments of the inferior courts which were not
otherwise subject to appeal or revision. That restriction has not been carried forward
in Article 227 of the Constitution.11

11
(2003 (6) SCC 675)
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Article 227 determines that every High Court shall have superintendence over all courts and
tribunals throughout the territories in relation to which it exercises jurisdiction except a court
formed under a law related to armed forces..

1.4 Whether the matrimonial petition maintainable in fact?

In the present facts and circumstances of this case the concealment of unemployment by the
husband to his wife is not a resonable ground for Judicial Separation or divorce as now the
respondent no.2 is doing his job and able to fulfill the necessity of life. This appeal is maintainable
under in fact, this is a prima facie case.

Madhukar Bhaskar Sheorey v. Saral Madhukar Sheorey: Section 10 of the Hindu Marriage
Act provides six grounds for a decree for judicial separation. Three of the grounds, namely
desertion, cruelty and isolated acts of adultery are grounds which arise from a wrong committed by
one of the parties to the marriage. The remaining three grounds namely, one of venereal disease or
insanity may arise without a wrong committed by a party to the marriage. In all the six
cases Section 10(2) provides that after the passing of the decree for judicial separation the Court
may rescind the decree in proper cases. This may be if the Court is satisfied that the desertion is
over, the cruelty is ended or even that the party guilty of isolated acts of adultery has given up the
committing of the matrimonial offence, or in case of diseases that there has been a cure.12

In the above mentioned case in which the Hon’ble court states that there are only seven grounds of
judicial separations. Other than those grounds are not considered as reasonable ground. The
appellant has no such reasonable ground for judicial separation. That the unemployment is not a
reasonable ground to left the home.

In Annapoorani Ammal v. G. Thangapalam the Supreme Court held that a perusal of Section 100
CPC clearly indicates that the High Court had the jurisdiction to interfere only when a substantial
question of law is involved and even then it is expected that such a question shall be so framed

12
AIR 1973 Bom 55

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although the court is not bound by that question as the proviso indicates.13

2. Whether there is landlord and tenant relationship between Ms. Riya and Mr. Ramakant
Shukla under the Transfer of Property Act?

This is submitted to this honourable court that the Appellant is not a tenant and Respondent is the
Landlord under Section 105 of Transfer of Property Act, That the agreement of tenency is signed
between the respondent no.1 and respondent no. 2 and the respondent no. 2 is only paying the
rent so appellant directly or indirectly not form any relation.

2.1 The appellant is not the tenant under Transfer of Property Act

B Arvind Kumar V. Union of India the Supreme Court has given the essential ingredient
under this case. There should be a transfer of right to enjoy an immovable property, such transfer
may be for a certain term or in perpetuity. The transfer should be in consideration of a premium
or rent The transfer should be a bilateral transection and the transferee accepting the term of
transfer14.

According to the above mentioned cases and definition under section 105 of TPA clarifies that
the appellant is the tenant of Respondent because all the ingredients are not satisfied:

In the case of Nathu lal v. Union of India Every tenancy is based upon an agreement between
two persons and contains covenants expressed or implied by one person with the other. The
tenancy must stand or fall with the agreement on which it is founded and with the covenants
contained in it and they fall so does the tenancy.15

According to the above mentioned cases and definition under section 105 of TPA clarifies that
the appellant is the tenant of Respondent because all the ingredients are not satisfied:

13
(1995) 6 SCC 213
14
Writ Petition (Civil) No. 462/2007
15
AIR 1932 All 65

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Secy, of State v. Bhupal chandraray It must be conceded that the right to exclusive possession
and enjoyment of the property let out to him is an important feature of the rights of a lessee.16

In the instant case there was no exclusive possession enjoyed by the appellant in the instant case
and she was come back to the property after 4 years.

Justice Bhagwati in the matter of Nanalal Girgharlal v. gulamnabi Jamaibhai Moterwala had
explained the concept of a tenant remain in possession of the property after determination of the
lease in India. He said that ‘we do not think that tenant possession in a property after
determination of lease can be equated to the trespasser. When a tenant remain in possession of
the property after determination of lease in India undoubtedly becomes a tenant at sufferance but
If the landlord accept the rent from him and otherwise assents s to his continuing in possession,
the tenency is, in in the absence of an agreement to the contrary, renewed from year to year
according to the purporse for which the property is leased. The tenant has the judicial possession
of the property and no one can deprive him of such judicial possession’17

In the present scenario after the expiration of the agreement there is was no consent of any kind
in the present case as there was various notices which were sent by the landlord for the eviction
and thereafter he has filed in the court of law.

In Bhaurao v. Rakhmin, the Bombay High Court adopted with approval the following
definition of adverse possession given by Markby, J. in...the true owner has no right to
immediate possession no adverse possession can begin against him16

M.R.S. Ramakrishnan v. Assistant Director of Ex-Servicemen Welfare the Madras High

Court said that, ‘the law in India and English Law in this respect are different. The landlord in
India, even if the lease had expired, will not be entitled to dispossess his tenant except by due
process of law20

So, the respondent in the instant case after giving various notices has files a suit for eviction and
got the favorable response.

Kestur Chand v Raman Rajan, Interpreting the definition of 'landlord' in Tamil Nadu Buildings

16
(1898) ILR 23 Bom 137 (FB)
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(Lease and Rent Control) Act, 1960, the Supreme Court has also held that sub-section 2(6) of the
Tamil Nadu Act shows that any person acting on his own account or on behalf of another or on
behalf of himself and others is a landlord, that the definition being wide and also inclusive does not
exclude a person who at all material times acted as a landlord to the knowledge of all the parties
concerned and whose authority to deal with the premises has never been disputed and that a person
who so acts also falls within the definition not as a mere agent as defined u/s. 182 of the Contract
Act, that he may also be an agent, but not a mere agent and is much more than that particularly in
the light of the facts of this case. It has, therefore, been held that the respondent for all purposes was
treated by all the parties interested in the transaction as a landlord. Such a landlord is, therefore,
entitled to file a suit for eviction against the tenant on the ground of arrears of rent.17

2.2 Appellant is the tenant under The West Bengal Premises Tenancy Act18

Section 3(c) "landlord" includes any person who, for the time being, is receiving, or is entitled to
receive, the rent for any premises, whether on his own account or on account of, or on behalf of,
or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or
who would so receive the rent or be entitled to receive the rent, if the premises were let to a
tenant.

A person who is the holder of a life interest under the Will may be a landlord—Jibon v
Taramoyee so also an assignee of the landlord of the lessee of the interest of the landlord.19

Section 3 (g) "tenant" means any person by whom or on whose account or behalf the rent of any
premises is or, but for a special contract, would be payable, and includes any person continuing
in possession after termination of his tenancy and, in the event of death of any tenant, also
includes, for a period not exceeding five years from the date of death of such tenant or from the
date of coming into force of this Act, whichever is later, his spouse, son, daughter, parent and the
widow of his predeceased son, who were ordinarily living with the tenant up to the date of death
of the tenant as the members of his family and were dependent on him and who do not own or

17
AIR 1994 SC 217
18
1997 [WEST BENGAL ACT XXXVII OF 1997]
19
AIR 1979 Cal 383

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occupy any residential premises. Provided that the time-limit of five years shall not apply to the
spouse of the tenant who was ordinarily living with the tenant up to his death as a member of his
family and was dependent on him and who does not own or occupy any residential premises,

According to the above mentioned definition the appellant cover under the west Bengal premises
tenancy act as tenant and all the ingredients of the fulfil.

According to the section 3 of West Bengal Premises tenancy act include the dependent of the
tenant, as the appellant left from the premises her husband respondent no 2 continued to stay
there which means after leaving from the rental home the appellant is still a tenant of respondent
no 1 and also clearly shows the intention of respondent no 1 landlord that he wants to continue
the tenancy agreement and in tenancy agreement the name of the appellant is written as a tenant.
In both the ways appellant is the tenant of respondent no 1. Moreover the appllent told to the
respondent no.1 that she is duly and on time will pay the rent.

2.3 Whether the Mr. Ramakant Shuklataken has taken reasonable ground to evict the
appellant?

Protection of tenant against eviction.—(1) Notwithstanding anything to the contrary contained in

any other law for the time being in force or in any contract, no order or decree for the recovery of
the possession of any premises shall be made by the Civil Judge having jurisdiction in favour of
the landlord against the tenant, except for certain grounds20

If applied the abovementioned section in the present case the protection to the appellant (tenant)
against the eviction should be given because the appellant does not cover under the exceptional
grounds mention in the section 6. The Controller and tribunal fail to give the justice to the
innocent and give its decision contrary to the law. Because of this the appellant is mentally
disturb and with no option left file an appeal to this honourable court.

The prayer by the respondent no 1 is that he requires the suit property for his personal use.
Before jumping to the conclusion of respondent prayer the two conditions is required to fulfil
The two conditions mentioned in the case of Ramsewak v Sain Datta a) He requires the suit
property for his personal use and b) that he has no other suitable accommodation. Other than

20
Section 6 of West Bengal premises and tenancy Act 2007

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these two conditions the Controller shall consider whether the existing accommodation of the
landlord is sufficient to meet his requirement. The onus to establish the plea of requirement is
always upon the landlord. The landlord's claim will fall to ground if he has any alternative
suitable accommodation.21

Deokinandan Boobna v Hara Sundar Sarkar The Division Bench of the Calcutta High Court
has observed that section 13(1)(ff) of the 1956 Act as amended in 1969 has imposed a statutory
obligation on the landlord to plead and to prove that he is not in possession of any reasonably
suitable accommodation elsewhere in order to entitle him to recover possession of any tenanted
premises for his own occupation22

In the present case the respondent no 1 has a sufficient ground to evict the appellant and the
above two conditions are not fulfilled by the respondent. The appellant is protected under section
6 of West Bengal Premises and Tenancy Act as the rent was not paid for the 3 months and
moreover the respondent required the property for the personal use.

3. Whether concealment of the fact of unemployment of Mr. Rahul is just and reasonable
ground for withdrawal from the conjugal relationship by Ms. Riya?

This is to be submitted before the honorable court that the concealment of fact of unemployment
of respondent no. 2 is not reasonable ground for withdrawal from the conjugal relationship.

Whether unemployment is a materiel fact of husband is the ground for Judicial separation
or divorce?

Judicial separation-Either party to a marriage, whether solemnized before or after the

commencement of this Act, may present a petition praying for a decree for judicial separation on
any of the grounds specified in sub-section (1) of Section 13, and in the case of a wife also on
any of the grounds might have been presented.23

M. Narasimha Reddy v. M. Moosamma the judicial separations and arrangement by which

21
AIR 1967 Del 113
22
(1988) 1 Cal LJ 278: (1981) 1 CHN 180.
23
AIR 1980 Cal 370
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Husband and wife live a part by the court decree.24

So, for living separately a degree of judicial separation is required by the court of law which is
not taken by the wife and still she is living separately.

S. Hanumantha Rao v. S Raman The court held that removal of mangal sutra by wife to irritate
her husband may amount to mental cruelty but when it is done at the instance of the husband
himself such act cannot be said to be one that of cruelty25

There is no reasonable ground for judicial separation and divorce. The husbands loved his wife a
lot and don’t want to give unnecessary tensions to her wise so he hidden the fact of his
unemployment from the wife.

3.1 Whether Under Section 9 of HMA the conjugal rights are granted in the present case?

Restitution of conjugal rights. - When either the husband or the wife has, without reasonable
excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to
the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of
the statements made in such petition and that there is no legal ground why the application should
not be granted, may decree restitution of conjugal rights accordingly.

Explanation- Where a question arises whether there has been reasonable excuse for withdrawal
from the society, the burden of proving reasonable excuse shall be on the person who has
withdrawn from the society

P Radha Krishna v. P Vijay Lakshmi The expression reasonable excuse should not be
confused with reasonable cause or justification26

Here as no ground for matrimonial rlief is there hence, act of the wife amount to unreasonable
excuse it amounts mere to a justification,so it is prayed before this hon’ble court to grant the
directions for restitution of conjugal rights.

24
AIR1995 Ker 139 at 140
25
AIR 1999 SC 1318 at 1320
26
AIR 1980 Cal 370
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4. Whether the High Court of Metropolis, Indica has the power to take up any case from a
Subordinate Court under Article 227 of the Constitution of Indica?

It is humbly submitted before this honorable court that the power of high court under article 227
of constitution of Indica is maintainable in the present case and there is nexus between these two
matters.

4.1 High Court power under article 227 of constitution of Indica is not maintainable in law.

Power of superintendence over all courts by the High Court

(1) Every High Court shall have superintendence over all courts and tribunals throughout the
territories interrelation to which it exercises jurisdiction
(2) Without prejudice to the generality of the foregoing provisions, the High Court may
a) call for returns from such courts;
b) make and issue general rules and prescribe forms for regulating the practice and
proceedings of such courts; and
c) prescribe forms in which books, entries and accounts shall be kept by the officers
of any such courts27
The honorable high court has clubbed the Appeal and the suit for restitution of conjugal rights which is
witin its power and violating the constitutional right of appellant. The power of high court to take up the
case and club it with some other subject matter is within the scope of the power of high court mentioned
in Article 227 of constitution of Indica.

4.2 High Court power under article 227 of constitution of Indica is maintainable in Facts.

In the present case the appellant filed a second appeal in this honorable High Court, when the
case is running in the high court, the court found out that there is one more case in which the
appellant is a party, without so in the interest of justice and by seeing a proper nexus between
both the matters this honorable court club it together.

State, through Special Cell, New Delhi Vs. Navjot Sandhu @ Afshan Guru and Ors This
Court held that the power must be exercised sparingly, only to move subordinate courts and
Tribunals within the bounds of their authority to see that they obey the law. The power is not

27
ART 227 of constitution of indica 1950
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available to be exercised to correct mere errors (whether on the facts or laws) and also cannot be
exercised "as the cloak of an appeal in disguise".28

So, the power of high court is wide enough to take up any case from a Subordinate Court under
Article 227.
In Umaji Keshao Meshram and Ors. vs. Smt. Radhikabai and Anr. Court observed that the
proceedings under Article 227 of the Constitution are supervisory. Article 227 significantly imitates
the provisions of Section 107 of the Government of India Act, 1915 aside from that the power of
superintendence has been reached out by this Article to tribunals too. Under Article 227 is planned
to be utilized sparingly and just in fitting cases to keep the subordinate courts and tribunals inside
the limits of their authority and not for rectifying unimportant mistakes. The power might be
exercised in cases occasioning grave injustice or disappointment of justice.29

28
JT 2003 (4) SC 605, para 28
29
(1986) Supp. SCC 401
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PRAYER

In the light of issues raised, arguments advanced and authorities cited, the complainant most
humbly and respectfully pray and request the Hon’ble Court:

1) To dismiss the appeal

2) To order the wife for restoration of conjugal rights
3) TO GRANTANY OTHER RELIEF WHICH THE HON’BLE COURT MAY DEEM
FIT IN THE EYES OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

All of which is respectfully submitted and for such act of kindness the defendant shall be
duty bound as ever pray.

Sd/-

(Counsel for Appellant)

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