Decided on August 04,1961



- (1.) THIS appeal arises out of a suit for ejectment and mesne profits. The: facts of the case may be stated as follows : monohar Lal Kakar (plaintiff) purchased premises No. 52b, Kali Temple Road from the previous owner Nishikanta Ghosh by a registered kobala on 7-2-59. Omprokash Asija, (defendant) occupied a portion of the said premises as a tenant under Nishikanta holding the same at a rental of Rs. 60/- per month. The rent was admittedly payable according to English calendar month. Monohar Lal conducts a hotel business in a rented house in premises No. 16, Russa Road. After his such purchase he served a notice to quit on the defendant requiring the latter to vacate the suit premises on the expiry of the month of June, 1959. The present suit was instituted on 11-7-59 as the defendant failed to vacate the premises as required by the plaintiff. The ground for eviction was stated to be that the plaintiff reasonably required the suit premises for purposes of building and rebuilding.
(2.) THE suit was governed by the provisions of the West Bengal Premises Tenancy Act, 1956 and the relevant section applicable to this case was section 13 (1) clause (f) of the said Act. Both the courts below found that the defendant had been duly served with the notice and it was legal, valid and sufficient. The courts also held that the plaintiff reasonably required the suit premises for building and rebuilding for his personal use and occupation. The contention of the defendant to the effect that the suit had been prematurely instituted by the plaintiff, inasmuch as the former had erected some structures on the land on the basis of an alleged agreement between him and Nishikanta at the time of the commencement of the tenancy in October, 1955, and by virtue of which defendant was not liable to be evicted from the suit premises within six years from the date of the tenancy, was repelled by the lower courts. In rejecting the defendant's contention in this respect, the court of appeal below observed that "the defendant had no acceptable evidence in support of such alleged constructions. " These findings were not challenged, and indeed could not be challenged, at the time of the hearing of the appeal before this Court.
(3.) THE sole contention pressed before me on behalf of the defendant-appellant was that the courts below had failed to consider that plaintiff's reasonable requirements would be substantially satisfied by evicting the defendant from a part only of the suit premises. It has been argued by Mr. Bhose, learned Advocate for the appellant, that in view of the provisions of sub-section (4) of section 13 of the West Bengal Premises Tenancy Act, 1956, it was the duty of the Court to apply its mind to this question, irrespective of the fact that the question was not actually raised by the appellant either in the court of first instance or before the first appellate court. It has, on the other hand, been contended by Mr. S. C. Janah, learned Advocate for the plaintiff-respondent, that the defendant not having raised the plea in the written statement or in the courts below, he would be precluded from raising this plea for the first time in this Court.;

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