KUSUM AGARWALLA Vs. BISWABHUSAN BOSE & ANR.

JUDGEMENT

(1.) This appeal at the instance of the Defendant arises out a suit for eviction on the ground of default in payment of rents and forfeiture of tenancy. The Plaintiffs are the landlord of premises No. 3 Asoke Road, Calcutta-27. The said premises formed part of the estate of late Sribhusan Bose. The Plaintiff No. 2 and one Sri Promode Kumar Ray Chowdhury were the Executors to the estate of the said deceased by virtue of their appointment as such by the last Will and Testament of the said deceased dated Feb. 23, 1962, Probate was obtained by the Executors in Aug. 1966 from this Court. As such Executors, the Plaintiff No. 2 and the said Sri Promode Kumar Ray Chowdhury were in possession, control and management of the said property being premises No. 3. Asoke Road, Calcutta-27. By and under an Indenture of Lease executed and registered by and between the Plaintiff No. 2 and the said Sri Promode Kumar Ray Chowdhury as such Executors as aforesaid of the one part and the Defendant of the other part, the Executors demised, granted and let out to and in favour of the Defendant nine rooms, two covered verandahs, two bath-rooms, kitchens, pantry courtyard, one garage, common passage and entrance together with all fixtures, electric installations, sanitary and water fittings and all other appurtenances whatsoever attached thereto, all situate at and lying on the ground-floor of the said building and premises being premises No. 3, Asoke Road, Calcutta-27. The said lease was for 7 years commencing from Jan. 1, 1966. The Defendant was to pay to the said Executors the rent of Rs. 1,200 per month and the Defendant also would pay to the Executors Rs. 100 as service charges, Rs. 25 as lighting charges, Rs. 25 as water charges arid Rs. 150 as for durwan per month. The total sum of Rs. 1,500 constitutes rent which the Defendant was to pay per month to the Plaintiffs in terms of the said lease. The said monthly rent as also all the other charges would be payable in advance by the Defendant to the said Executors. It was further agreed by the Defendant by and under the said Indenture of Lease to pay the said monthly rent service and other charges on the day and in the manner as aforesaid without any deduction or abatement whatsoever, to keep and maintain at her own costs and expenses the demised premises including the floorings, doors, windows etc. in good and tenantable repair and condition and to replace such of the said articles as will be damaged by the negligence and not to call upon the said Executors to effect any such repairs. Once in every 3 years from the date of commencement of this lease to paint in a workmanlike manner with two coats of good paint such parts of the demised premises and limewash, whitewash, whiten and colour such of the walls and other parts of the demised premises as have here to before usually been painted, plastered, washed and whitened and not to make any additions or alterations to the demised premises or any part thereof or to the fixtures and fittings except with the previous permission of the said Executors in writings. It is further provided in the said lease that if the monthly rent, services and other charges or any part thereof should be in arrear and remain unpaid for 90 days after the day on which the same is to be paid as aforesaid or in case of default made in the observance or performance of any of the covenants and conditions on the part of the Defendant, hereinbefore stated, then and in any of the said cases it would be lawful for the said Executors to enter upon the demised premises or any part thereof in the name of the whole and to repossess and enjoy the demised premises together with all fixtures, fittings, articles etc. In or about June 1969 the Executors wrote to the Defendant saying that the Defendant may attorn her tenancy in favour of the Plaintiffs. On the basis thereof since June 1969 the Defendant was paying rent etc to the Plaintiff, but since the month of Sept. 1969 the Defendant wrongfully failed and neglected to pay rent, service and other charges arid to keep and maintain at her own costs and expenses the said premises including the flooring doors, windows, etc. The Defendant also failed to paint or cause to be painted in a Workmanlike manner. This is in breach of Clause 2(iv) of the said Indenture of Lease. It is further alleged that the Defendant has wrongfully constructed a bath-room inside the courtyard on the northern side of the demised premises and made additions and/or alterations to the demised premises without the previous permission in writing from the said Executors or the Plaintiffs. In view of the expressed breach of the lease, the Plaintiff it is alleged, has right to re-enter upon the demised premises and the Plaintiffs became entitled to determine the said lease, It is alleged that by a notice dated Jan. 28, 1939, given by the Plaintiffs through their Solicitors to the Defendants, the Plaintiffs determined the said lease. The same notice was sent by registered post and also under certificate of posting. The Defendant received the said notice sent to her under the registered post and also under certificate of posting on or about Jan. 29, 1970. The Defendant not having vacated the premises, the Plaintiff filed the present suit for eviction.

(2.) The Defendant filed written statement and challenged that the service charges sought to be realised are not to be payable. None of the services as alleged therein was ever provided by the Plaintiff to the Defendant and the sweeper charges, electric charges etc. are being paid separately by the Defendant. It is alleged that the Defendant does not consume any electricity from the meter of the Plaintiffs but she has her separate meter and charges for consumption are being paid by the Defendant directly to the Calcutta Electric Supply Corporation Ltd. It is further stated that the Plaintiff has realised Rs. 13.200 as service charges illegally from Jan. 1966 till Aug. 1969. It is also alleged that the rent is Rs. 1,200 and not Rs. 1,500 as stated. It is stated that the Defendant has always taken all possible steps to keep and maintain the premises including the furniture and fixtures provided therein in tenantable repairs but the construction of the building is so (sic) bad and there are inherent vices with the result that the effect of the repairs is washed away rapidly. It is further stated that the Plaintiffs landlords are bound to keep and maintain the premises in habitable condition and/or to carry out all necessary and essential repairs under the provision of the West Bengal Premises Tenancy Act, 1956. The Plaintiffs have failed and neglected to keep the premises in habitable condition though the Plaintiffs are under such a legal obligation It is stated that the suit is defective and the plaint does not even set out the schedule of the property of which khas possession is sought to be recovered, The Defendant denied that she has committed breach of Clauses 2(i), 2(iv), 2(vi), 2(v) and 2(ii) of the said Indenture of Lease. It is stated that the Defendant is protected under Sec. 114(A) of the Transfer of Property Act and the Plaintiff is not entitled to the possession of the premises in question. The Defendant denied the notice of ejectment and denied further that she has committed breach of clause of M.O.P. of Sec. 108 of the Transfer of Property Act. On these pleadings the parties came to trial.

(3.) The suit was filed on March 18, 1970. The Defendant entered appearance and filed an application for time to file the written statements. The Defendant filed application under Sec. 17 read with Sec. 17(2)(A) of the West Bengal Premises Tenancy Act raising dispute about the quantum of rents as also the rate of rents and prayed for an easy instalment. The Plaintiff filed objection to the said application wherein an order was passed by the Court below but without complying with the order, the Defendant filed an application in this Court under Art. 227 of the Constitution of India.