D S COMMERCIAL PVT LTD Vs. SHEWTAMBAR STHAKBASI JAIN SAB HA
HIGH COURT OF CALCUTTA
D.S.COMMERCIAL PVT. LTD.
SHEWTAMBAR STHAKBASI JAIN SAB HA
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MOKHERJEE, J. -
(1.) The plaintiff respondent by a registered deed, dated 29th December, 1958 had granted in favour of the defendant-appellant a lease for a term of 20 years commencing from 1st September, 1958 in respect of two rooms in the ground floor of Premises No. 18D, Sukias Lane, Calcutta. The said lease deed, inter- alia stipulated monthly rent of Rs. 196/- per month and did not provide for any increase of rent during the lease period which was to end on 31st August, 1978. Undisputedly, with effect from April, 1977 the defendant lessee had been paying rent to the plaintiff at the rate of Rs. 245/- per month instead of Rs. 196/- per month.
(2.) The plaintiff-respondent had instituted, in the City Civil Court at Calcutta, a suit against the defendant for recovery of possession in the aforesaid two ground floor rooms at Premises No. 18D, Sukias Lane, Calcutta and for recovery of arrear rents and mesne profits. In paragraph (2) of its plaint, the plaintiff had pleaded that the defendant was a lessee in respect of the suit rooms at a rent of Rs. 245/- per month under the aforesaid registered deed of lease dated 29th December, 1958 for a term of 20 years. The plaintiff pleaded that the lease had expired by efflux of time on the expiry of 31st August, 1978 and prayed for recovery of possession by evicting the defendant. The plaintiff further pleaded that the defendant had failed to pay rent since June, 1978 amounting to Rs. 735/-, The plaintiff also claimed recovery of mesne profits from 1st September, 1978 at the rate of Rs. 10/- per diem.
(3.) The defendant in its original written statement had, inter- alia denied that the aforesaid registered deed of lease was a lease for non residential purposes and had claimed that its tenancy was governed by the West Bengal Premises Tenancy Act and was therefore, it was not liable to be ejected. On 14th August, 1981 the defendant had filed an additional written statement, inter- alia, pleading that with the consent of both parties, on 1st April, 1977 the registered lease in question was determined and it had been verbally agreed between the parties that the defendant should occupy the said premises as a monthly tenant under the plaintiff on payment of rent of Rs. 245/- per month instead of Rs. 196/- per month. Pursuant to the said alleged agreement, the defendant had paid rent to the plaintiff at the new rate since April, 1977. The defendant claimed that the said monthly tenancy which had commenced on 1st April 1977 had not yet beer determined in any manner recognise by law and consequently the plaintiff suit was bound to fail.;
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