SANJIB BANERJEE,J. - (1.) THE plaintiff in a suit for eviction on account of sub-letting and default in payment of rent complains of a recent order by the trial court accepting the first defendant 's written statement some four years after the institution of the suit without appreciating that no plausible explanation had been proffered by the first defendant for the inordinate delay.
(2.) THE first defendant is represented after notice and submits that since the writ of summons was neither served nor deemed to have been served on him, it was magnanimous on the first defendant 's part to condescend to file the written statement without insisting on the service of the summons; and, rather than the first defendant having been undeservingly rewarded by the order impugned allowing him to contest the suit, the first defendant has allowed a glaring lacuna on the plaintiff 's part to be glossed over. In the plaint relating to Title Suit No. 536 of 2008 filed in the Alipore Court, the plaintiff claims to be the owner of a second floor flat at premises No.32H, Sarat Bose Road, Calcutta-700 020 and says that the suit premises were let out to the first defendant at a monthly rent of Rs.1,100.00. The relationship between the plaintiff and the first defendant is governed by the West Bengal Premises Tenancy Act, 1997. The plaint claims that in March, 2006 the first defendant left for Singapore with his family and settled thereat; that the first defendant had illegally made over possession of the suit premises to the second defendant and his wife who came to be in possession thereof without the written consent of the plaintiff; and, such conduct entitled the plaintiff to possession of the premises. The plaintiff claims to have determined the tenancy of the first defendant by a notice dated September 27, 2007 which was issued to the first defendant by registered post. The plaintiff seeks eviction, arrears rent and mesne profits. The plaintiff states that shortly after the service of the notice to quit addressed to the first defendant at the suit premises, the sister of the first defendant instituted Title Suit No. 1094 of 2007 before the Alipore Court seeking a declaration that such sister was a monthly tenant under the plaintiff herein at the suit premises and a consequential injunction restraining the present plaintiff from disturbing such person 's peaceful possession of the premises. A copy of the plaint relating to Title Suit No. 1094 of 2007 has been appended to the present petition wherein it has been stated that the mother of the plaintiff in the earlier suit was inducted as a tenant at the premises in question in 1964 and the quantum of monthly rent was periodically enhanced. The mother is said to have died in November, 2001 and the plaintiff in the present suit is alleged to have accepted the first defendant herein as the tenant after his mother 's demise. It is also averred in the plaint that early in 2006 the first defendant herein "temporarily left for Singapore with his family keeping the suit premises under the care and control of the plaintiff. " The sister of the first defendant herein claimed in her suit that she resided at the suit premises with her two daughters and her husband resided in Asansol where he had his business. The previous suit remains pending and the plaintiff herein harps on paragraph 10 of the plaint relating to the earlier suit where the first defendant 's sister has cited a letter of June 28, 2007 addressed by the plaintiff herein to the first defendant herein at the suit premises and a subsequent ejectment notice issued on behalf of the plaintiff herein.
(3.) THE present suit was filed on February 26, 2008 and the writ of summons was attempted to be served by registered post on the first defendant which returned with the postal endorsement "not claimed ". The plaintiff refers to an order dated November 20, 2008 directing substituted service of the writ of summons to be effected and insists that the first defendant has all along been aware of this suit and emphasises on the first defendant 's sister admitting receipt of the notice to quit at the suit premises and the present occupants thereat being an uncle and aunt of the first defendant. The first defendant 's sister applied to be added as a party to the present suit. Such application, filed in early 2010, claimed, inter alia, that the first defendant and his family had left for Singapore and the sister enjoyed a good relationship with the first defendant. The sister also asserted, at paragraph 8 of her application for being added as a party to the instant suit, as follows: "8) That by receiving the money order from the present applicant tenancy of the suit premises has been created in favour of the present applicant, so, in order to avoid the situation, the present plaintiff through his Solicitor sent a letter to the defendant No.1 at his address at Singapore with a false allegation that the defendant No.1 has created subtenancy by delivering possession of the suit property tot he defendant No.2. " The sister of the first defendant also maintained in her said application that the second defendant herein did not reside in the suit premises and that it was such sister who was in exclusive possession thereof. By an order of February 24, 2010, the sister 's application was dismissed. A civil revisional petition carried from such order to this court was dismissed with the observation that the sister was neither a necessary nor a proper party to the present suit.;