(1.)These appeals make a group of together six appeals* involving more or less the same questions. They were referred to a Special Division Bench under Rule 1, sub-rule (ii) of Chap. II of the Appellate Side Rules by a Bench constituting the late D. N. Sinha, C.J. and myself on June 19, 1968. The reference was made on the ground that they raise one or two common questions of law which are of great public importance. The Hon'ble Chief Justice, thereafter, constituted the present Special Bench to dispose of these appeals. Since we have to dispose of the entire appeals we shall have to deal with them separately resolving the questions of law as they arise. This is what we propose to do as hereunder:
APPEAL NO. 550 OF 1662.
The original defendant, Satish Chandra Mukherjee was a tenant under the plaintiffs in respect of a shop-room on the ground floor of premises No.8A, Lal Bazar Street, Calcutta, at a monthly rental of Rs.30.94 payable according to the English calendar month. The entire premises at 8A, Lal Bazar Street, Calcutta, was transfer to the plaintiffs, by Smt. Sushila Debi Rampuria and Sri Joychand Lal Rampuria who were the liquidators of Rampuria Properties Ltd., by a registered deed of conveyance dated July 13, 1958. Prior to this transfer the tenant, namely, Satish Chandra Mukherjee, had defaulted in payment of rents since September, 1957. He, however, deposited the rents for September, 1957 to April, 1958 on May 29, 1958. After the transfer, the plaintiffs as the new landlords served through their lawyers a notice of ejectment dated September 13, 1958, on the said tenant-defendant. By the said notice the plaintiffs determined the defendant's tenancy and called upon him to quit and vacate the aforesaid shop-room No. 5 on the expiry of the last day of October, 1958. The defendant having failed or neglected to do so the plaintiffs filed a suit against the said defendant-tenant for eviction. In the plaint, it is claimed that the said defendant would not be entitled to any protection from eviction under the provisions of the West Bengal Premises Tenancy Act of 1956 (hereinafter referred to as the said Act) by reason of the fact that eh tenant had defaulted in the payment of rent to his previous landlords as well as to the plaintiffs who were the successor-in-interest of those landlords 'since September 1957 and also for four months within a period of 12 months'. Before the suit had been filed on January 2, 1958, the tenant had deposited rents for August, September and October 1958 on December 1, 1958. The defendant contested the suit and filed a written statement. Sometime latter the original defendant having died his heirs, namely, Sri Sanjib Mukherjee, Sri Ranjit Mukherjee, Sri Manindra Nath Mukherjee, Sri Samita Mukherje and Mrs. Satish Chadnra Mukherjee were substituted as the defendants in lieu and place of the original defendant. I shall hereinafter refer to the substituted defendants merely as the defendants. The defendants Manindra Nath Mukherjee and Samita Mukherjee filed a written statement on November 12, 1960, and an additional written statement on March 24, 1961.
(2.)Certain issues and additional issues were framed for determination at the time of the trial upon the pleadings of the parties. They are as follows:
(1) Is there any relationship of landlord and tenant between the parties in respect of the suit room, i.e. the shop-room No.5 on the ground floor of premises No. 8A, Lal Bazar Street, Calcutta ?
(2) Is the defendant a defaulter in the payment of rent for four months during the period of twelve months before institution of the suit ?
(3) Was the notice of ejectment served on the defendant ? If so, is the notice legal, valid and sufficient ?
(4) To what relief, if any, are the plaintiffs entitled ?
(1) Are the defaults in the payment of rent committed by late Satish Chandra Mukherjee, the predecessor-in-interest of the substituted defendants and/or the substituted defendants prior to July 13, 1958, the date of purchase of the suit premises by the plaintiff to be tacked to the defaults committed by the said late Satish Chandra Mukherjee and/or the substituted defendants from July 13, 1958, onwards ?
(2) Can the plaintiffs take advantage of the defendants in payment of rent committed by Satish Chandra Mukherejee and/or the substituted defendants when the plaintiffs' predecessor-in-interest were the landlords and/or the owners of the suit premises ?
After evidence has been adduced on behalf of both sides the learned trial Judge came to the following decision:
(1) There was a relationship of landlord and tenant between the parties.
(2) (a) It is not a fact that there had been non-payment of rent for all months since September, 1957 to the date of judgment.
(b) Defendants were defaulters in payment of rent for all months of August, September and October, 1958 because of paying them after the due date.
(c) Further, the defendants having deposited the rents from September, 1957 to April, 1958 on May 29 were defaulters in the payment of rent within the meaning of the Act for the months of September, 1957 to March, 1968, and, as such, the defendants were not entitled to claim any protection from eviction under the Act.
(3) The plaintiffs as transferee landlords could take advantage of the defaults made by the tenant before the transfer of the property. In short, the defendants were not entitled to protection from eviction under the Act for having made defaults in the payment of rent for four months within a period of twelve months from the commencement of the Act to the date of the suit.
(4) The ejectment notice had been properly served and was proper and valid.
(3.)Onthese findings the learned trial Judge decreed the suit against the defendants and ordered that the plaintiffs would get khas possession of the suit premises by removing the defendants therefrom.