Decided on May 20,1983



M.M.Dutt, J. - (1.) This appeal is at the instance of the defendant in a suit for eviction, and it is directed against the judgment and order dt. April 21. 1978 of B. C. Basak. J passed on the implication of the defendant under Section 17 (2) of the West Bengal Premises Tenancy Act. 1956. hereinafter referred to as the Act.
(2.) The defendant. Remington Rand of India Ltd., was initially a lessee of a two storied building being premises No. 5/A, Mangoe Lane. Calcutta for a term of 16 years under the plaintiff under a registered deed of lease dt. May 1. 1953. After the expiry of the lease, the plaintiffs and the defendant entered into an agreement referred to in the letter dt. December. 4. 1970 addressed by the defendant to the plaintiffs. The relevant portions of the said letter recording the agreement between the parties are as follows:-- "(a) We have on 1st Dec. 1970 put you in vacant possession of the 1st floor of the premises No. 5/A. Mangoe Lane, Calcutta. (b) We shall continue to be in occupation of the ground floor of the above premises as monthly tenant under you on the terms and conditions in the lease dated 14th Sept. 1953. granted by you to us in so far as the same shall be applicable to such monthly tenancy except that our monthly rent for the said entire ground floor shall be Rs. 3,200/-(Rupees Three Thousand and Two Hundred only) per month with effect from 1st Dec. 1970. and all common spaces and land spaces in the ground floor will be used by us in common with you and other occupants of the aforesaid premises and we will not be entitled to obstruct and/or block the same in any circumstances whatsoever. (c) We will put you in quiet, vacant and peaceful possession of the said ground floor mentioned in Clause (b) hereof within 31st Mar. 1978. Please also note that our tenancy under you in respect of the ground floor will in any event stand determined with the expiry of 31st Mar. 1972. In the event the Company does not vacate the ground floor of the said premises by 1st April. 1972. it shall commence paying the then prevalent market rent."
(3.) It appears from the agreement between the parties as recorded in the letter quoted above that the defendant vacated the first floor of the said premises No. 5/A. Mangoe Lane. Calcutta and continued to occupy the ground floor of the said premises as a monthly tenant under the plaintiffs on payment of a monthly rent of Rs. 3,200/- with effect from Dec. 1, 1970. It was also agreed that the tenancy of the defendant with regard to the ground floor would stand determined on the expiry of Mar. 31, 1972. and that in the event the defendant did not vacate the ground floor by April 1, 1972. it would have to pay the prevalent market rent. The parties, however did not decide what the prevalent market rent was. The defendant did not pay tent at the old rate, that is at the rate of Rs. 3,200/- per month, the reason being that the prevalent market rent was not decided. It appears from the letter dated Aug. 26, 1974 addressed by the defendant to the plaintiffs that a sum of Rs. 15,000/- was paid by the defendant to the plaintiffs on July 12, 1972 towards arrears of rent. In the said letter, the defendant called upon the plaintiffs to ascertain the market rate of rent of similar tenancies within seven days from the receipt of the letter, failing which, it was stated, the defendant would be constrained to move the Rent Controller in Accordance with law for fixing the rent payable by it. Thereafter, on Sept. 7, 1976 the plaintiffs instituted the suit being Suit No. 369 of 1976 in the Original Side of this Court praying for a decree for eviction of the defendant from and recovery of vacant possession of the suit premises, being the ground floor of the said premises no. 5/A. Mangoe Lane. Culcutta, on the ground of default in payment of rent. It was alleged that the defendant had paid rent at the rate of Rs. 15,000/- per month being the prevalent market rent for the month of April, 1972, but the defendant failed and neglected to pay rent from May, 1972. The plaintiffs also claimed mesne profits at the rate of Rs. 500/- per diem from April 1, 1976 until recovery of vacant possession of the suit premises. It was claimed by the plaintiffs that the prevailing market rent was Rs. 15,000/- per month. and that the defendant having failed to pay rent at that rate with effect from May. 1972, forfeited the protection against eviction under the Act. Accordingly, the plaintiffs determined the tenancy of the defendant by the service of a notice to quit dt. Feb. 26, 1976 on the defendant. As the defendant did not comply with the terms of the notice to quit, the suit was instituted by the plaintiffs.;

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