- (1.) This appeal is at the instance of a defendant in a suit for eviction, arrears of rent and mesne profit and is directed against the judgment and decree dated 30th July, 2010 passed by a learned Single Judge of this Court by which His Lordship in exercise of power conferred under Chapter XIIIA of the Original Side Rules of this Court passed a decree for eviction by holding that the defendant had no good defence against the claim of eviction on merit nor could the defendant disclose such fact as might be deemed sufficient to entitle him to defend. As regards the other prayer of mesne profit and arrears of rent, His Lordship, however, held that those prayers should be carried to the trial. His Lordship further granted costs of 6000 GMs against the defendant. Being dissatisfied, the defendant has come up with the present appeal.
(2.) The facts giving rise to filing of this appeal may be epitomized thus: a) There is no dispute that there existed a relationship of landlord and tenant between the plaintiff and defendant and such tenancy is governed by the provisions of the Transfer of Property Act as the rate of the contractual rent was Rs.22,150/- a month and as such, by virtue of the provisions contained in the West Bengal Premises Tenancy Act, 1997, its operation for the purpose of eviction would be excluded and the same should be governed by the provisions of the Transfer of Property Act. b) According to the plaintiff, by a registered notice to quit dated May 22, 2007, the tenancy of the plaintiff was determined in terms of Section 106 of the Transfer of Property Act by asking the defendant to deliver vacant and peaceful possession of the premises within a month from the date of such notice. It was further indicated that upon the expiry of the period mentioned in the notice, the defendant would be regarded as a trespasser and the plaintiff would be entitled to claim damages at the rate of Rs.10,000/- per diem. c) The plaintiff further alleged that such notice of eviction was received by the defendant on May 29, 2007 and a copy of the postal acknowledgement card was appended to the plaint and the application for summary judgment. According to the plaintiff, despite due receipt of such notice, the defendant did not respond thereto or act in accordance therewith and consequently, the suit was instituted in the first week of December, 2007. d) In the application for summary judgment, the plaintiff has disclosed a letter dated January 3, 2008, issued by the defendant containing the following admission: As per the discussion held with the undersigned with you, we are giving the following proposal to liquidate the entire dues of Rs.1,991,206.82 (Ninteen Lacs Ninety One Thousand Two Hundred Six and Paise Eighty Two Only) against outstanding of Rent and other costs up to 31/12/2007 as per details enclosed. We shall pay 25% of the above mentioned amount immediately after receipt of your confirmation and the remaining outstanding amount shall be paid to you by a Bank Guarantee equivalent to one month Rent and Taxes every month, kindly give the proforma of the Bank Guarantee to enable us to discuss the matter with the bank. We shall pay the current Rent & Taxes, further we state that if our financial position improves we will liquidate the dues earlier also. We also submit that we will fulfil the commitments and won t give you opportunity for any complain and keep the good neighborly relation with you. We solicit your co-operation in this regard and waiting for an early reply . e) The plaintiff, thus, prayed for a summary judgment in terms of Chapter XIIIA of the Original Side Rules. f) The aforesaid prayer of the plaintiff was opposed by the defendant by filing affidavit thereby specifically disputing the claim that any notice to quit was served upon the defendant. The averment relating to service of notice was made in paragraphs 12 and 13 of the plaint. Those two paragraphs are quoted below: 12. The plaintiff by a notice dated 22nd May, 2007 has terminated the monthly lease of the defendant with effect from expiry of one month from the date of receipt of the said notice by the defendant. A copy of the said notice is annexed hereto and marked with letter F . The notice was duly served upon the defendant by registered post on 22nd May, 2007. A copy of the acknowledgement due and showing receipt of the said notice by the defendant on 29th May, 2007 is annexed hereto and marked with letter G . By the said notice the plaintiff also claimed mesne profit at the rate of Rs.10,000/- per diem in case the defendant fails to vacate the demised portion on the expiry of the notice period.
(3.) The period of one month from the date of service of the notice expired on 29th June, 2007 and since that the defendant has remained in wrongful possession of the demised portion as a trespasser . g) The statements contained in the aforesaid two paragraphs were dealt with by the defendant by way of an affidavit in paragraphs 13 and 14 and those two paragraphs are quoted below: 13. With reference to paragraph 12 of the said application, it is denied that the plaintiff by any purported Notice dated 22nd May, 2007 has terminated or could terminate the monthly tenancy of the defendant either with effect from the expiry of one month from the date of receipt of the said Notice by the defendant as alleged or at all. The defendant denies and disputes the legality, validity, correctness and existence of the purported notice a copy whereof has been annexed to the said application, marked with the letter F . It is further denied that the purported Notice was duly or otherwise served upon the defendant by registered post on 22nd May, 2007 or on any other date as alleged or at all. It is still further denied that the coy (sic, copy) of the purported acknowledgement due card does or can show the receipt of the purported Notice by the defendant on 29th May, 2007 as alleged or at all. The defendant denies and disputes the legality, validity and correctness of the purported acknowledgement due card a copy whereof has been annexed to the said application, marked with the letter G . It is also denied that in the purported Notice the plaintiff could claim mesne profit at the rate of Rs.10,000/- per diem or at any other rate from the defendant or there was or could be any question of the defendant vacating the suit premises either on expiry of the period mentioned in the purported Notice as alleged or at all. Without prejudice to the aforesaid and on the contrary strongly relying thereof, the defendant states that after issuance of the purported Notice dated 22nd May, 2007, the plaintiff has raised bills on the defendant for the monthly rent for the months of July and August, 2007 and the defendant has accepted such bills. In views (sic. view) of such issuance and acceptance of rent bills as aforesaid, the purported Notice dated 22nd May, 2007 was waived by consent of the parties. In this connection, copies of such bills for the monthly rent of July and August, 2007 raised by the plaintiff on the defendant are annexed hereto and collectively marked with the letter C .;