KAUMUDI MOHAN GUHA RAJA Vs. PARESH NATH MITRA

JUDGEMENT

(1.) THIS appeal is from the judgment and decree passed by the learned Additional District Judge at Alipore in Title Appeal No. 775 of 1977 affirming the judgment and decree passed by the learned Munsif, 1st Additional Court at Alipore in Title Suit No. 35 of 1976. The suit was filed, by the plaintiff respondent for ejectment of the defendant No. 1 on the ground of default and reasonable requirement of the owner. The defendant No. 2 was also made a party inasmuch as it was the case of the plaintiff that the defendant No. 1 had assigned his tenancy to the defendant No. 2, the present appellant. The defendant No. 1 was the tenant in respect of the 'entire ground floor flat of premises No. 2/D, Bawali Mandal Road, P. S. Tollygunge at a monthly rental of Rs. 126/- payable according to English Calendar month. The defendant No. 1 defaulted in payment of rent since Jan, 1971. The plaintiff respondent's further case is that the defendant No. 1 without the consent of the landlord plaintiff assigned his right jn the said tenancy in respect of the suit property to his brother-in-law defendant No. 2 who is tha present appellant, before this Court Apart from the ground of default, the plaintiff respondent prayed for eviction on the ground of reasonable requirement for his own use and occupation and for the use and occupation of his family members and, in particular, for accommodating his daughter who is qualified as a doctor for the purpose of providing a chamber for practising as a doctor and also for providing a drawing room for himself and for accommodation of his other daughters whenever they come to live with him. Notices were served upon both the defendants Nos. 1 and 2 (vide Exts. 2 and 2/a). As the defendant No. 1 did not vacate the suit premises the plaintiff respondent filed the suit being Title Suit No. 35 of 1976. The defendant No. 1 appeared and contested the suit on filing a written statement but the defendant No. 2 did not appear in spite of notice being served upon him. The defendant No. 2 entered appearance at the time when the plaintiff respondent filed the petition under Section 17 (3) of the West Bengal Premises Tenancy Act and the same was heard and allowed and filed a petition giving explanation for not coming to court in time together with written statement. On 13-6-1975 the learned Munsif passed the following order.

(2.) IN the result, the impugned orders are set aside and the judgment and the decree passed by the appellate court are set aside and the case remanded back to the trial court to frame fresh issues and to try the suit from the stage of filing of the written statement according to the directions given above. The appeal is allowed without costs. No decree need be prepared.