Decided on July 19,1983

PROVA RANI Respondents


BANERJEE, J. - (1.) This appeal by the defendant arises out of a suit for recovery of Khas possession. The plaintiffs are the owners by purchase of premises No. 139A, Rash Behari Avenue by a deed of conveyance dated 5th June, 1973. The defendant, it is alleged, is a tenant under the plaintiffs in respect of a flat on the second floor of the suit premises described in Schedule "A" to the plaint at a rental of Rs. 675/- per month. It is further alleged that the defendant did not pay rents from February, 1975 onwards and he is guilty of committing nuisance and annoyance by using abusive languages and of threatening the plaintiff's and the family members. It is stated further that the flat was let out to the defendant for residential purposes but he has sub-let a portion to Kunjalal Mahabir Prasad for carrying on business in the suit flat. The defendant, it is alleged, forcibly occupied one garage on the western side of the suit premises, one small mezzanine room and open terrace on the second floor as described in the Schedule "B" to the plaint. On these grounds the plaintiff's filed the suit on 9th Feb., 1976. The plaintiff's applied for amendment of the plaint on 28-4-1977. The plaintiffs had purchased the suit premises on 5th June, 1973. On 28th April, 1977 the plaintiffs filed an application for amendment of the plaint introducing two new grounds for eviction of the defendant from the said flat. One of the grounds is that the plaintiffs required the suit flat for their own use and occupation as their present accommodation is insufficient as also the defendant without their consent converted the English type of privy commonly known as "commode system" into an Indian style by raising pucca construction. The defendant contested the suit by filing written statement, contending inter alia, that he is a tenant in respect of both the Schedules, "A" and "B" to the plaint, since the time of the vendor of the plaintiffs. It is further stated that "B" Schedule property, including the garage, is a part of the tenancy. The plaintiffs, it is alleged, did not collect rents for the months of Feb. and Mar., 1975. Thereafter the defendant sent the rents for those two months by Money Orders but the plaintiffs refused to accept rents by Money orders. Hence the defendant went on depositing the rent with the Rent Controller since April 1975. It is further alleged that the notice to quit is bad, invalid, illegal and insufficient. The defendant denied the allegations of sub-tenancy. On these grounds both the Courts below held in favour of the plaintiffs. Hence the appeal by the defendant.
(2.) On behalf of the defendant, Mr. Ghosh contended that the suit was filed within 3 years after the purchase of the premises by the plaintiffs on the ground of default and committing nuisance. Application for amendment was made on 28-4-1977 and granted on 27th June, 1977. The decree was passed on that ground alone. It is argued that in view of S.13(3A) of West Bengal Premises Tenancy Act, 1956 the amendment could not have been allowed and therefore the decree on the ground of reasonable requirement cannot be sustained.
(3.) Mr. Saktinath Mukherjee on behalf of the respondents-plaintiffs contended firstly that the Courts below ought to have held that the defendant was in default in payment of rent for two months within the period of 12 months. Secondly it is argued that the Courts below have held that the defendant is a trespasser in the part of the premises, and therefore the defendant has committed nuisance within the meaning of S.13(1)(e) of the West Bengal Premises Tenancy Act. Thirdly it is contended that the amendment was granted beyond 3 years after the purchase though the suit was filed within 3 years from the date of purchase. Mr. Mukherjee contended that the amendment was made, the Courts below directed to pay the costs and the cost was accepted and as such there was a waiver of objection regarding the amendment of the plaint.;

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