Decided on August 05,1960

Sitanath Paul Respondents


- (1.) This is a second appeal on behalf of the Defendant tenant in a suit for ejectment on the ground of default. The suit was instituted on May 17, 1955, while the West" Bengal Premises Tenancy Act of 1950 was still in force.
(2.) The Plaintiff's case was that the Defendant was a sub-tenant under one Priyalal Karmakar whose tenancy was determined by a decree in a suit for ejectment in suit No. 2161/51 and the date of the decree was September 25, 1951. According to the Plaintiff a notice to quit was served upon the Defendant and he instituted the suit thereafter terminating the tenancy according to English calender month. His further averments are that the Defendant has been a defaulter from September 25, 1951, to April, 1954, Mr. Mitter on behalf of the Defendant Appellant has taken the following points: (i) There being no default within 18 months of the institution of the suit there was no default for which the ejectment suit would lie. (ii) The landlord having accepted a sum of Rs. 400 from the Defendant has waived the defaults, if any, and, therefore, even if there were defaults, the Plaintiff landlord cannot take advantage of them. (iii) The tenancy of the Defendant having commenced since September 26, 1951, the notice terminating the tenancy according to English calender month is a bad one. (iv) The tenancy between the Plaintiff and the landlord, though created by statute, became subsequently a tenancy by contract because of the demand letter and also because of a notice to quit and the notice being bad, the suit must be dismissed.
(3.) Regarding the first question of default Mr. Mitter says that there being no default within 18 months of the suit, there was no default in law. Mr. Mitter refers to a decision of the Division Bench in a case between Amal Krishna and Chandi Charan,1952 56 CalWN 528.;

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