SOUMEN SEN, J. - (1.) THE principal issue for consideration in the suit filed by the plaintiff is whether the plaintiff is entitled to maintain a suit for adjudication, determination and settlement of the monthly rent for the suit premises from 1st July, 1995 together with interest on the face of a demurrer as to its maintainability founded on Section 47 of the Code of Civil Procedure.
(2.) THE said objection as to the maintainability is on the basis that the suit involves questions relating to execution, discharge or satisfaction of a compromise decree passed in Ejectment Suit No.197 of 1990 in which in Clause (iii) the defendant has agreed to review the rent after 5 years. All questions including the reluctance of the defendant to review the rent or a decision in purported exercise of such Clause (iii) according to the defendant could only be decided in an application for execution of the said compromise decree and not in a suit. In or about 1947 Commilla Banking Corporation was inducted as a tenant at the Ground floor of Premises No.5, Kiran Shankar Roy Road, Kolkata ­ 700 001 (hereinafter referred to as the said office space) as a Lessee thereof. Commilla Banking Corporation was merged with the United Bank of India and subsequently United Bank of India became a tenant in respect of the said Office Space. The defendant is a tenant under the plaintiff in respect of about 4000 Sq. ft. in the ground floor of premises No.5, Kiran Shankar Roy Road, situated at the crossing of Kiran Shankar Roy Road and Old Post Office Street, presently paying rent of Rs.4146.73 per month. In the year 1990 Dipali Mallik, the erstwhile owner of the said premises filed an eviction suit being Ejectment Suit No.197 of 1990 against the Bank before the Learned City Civil Court at Calcutta claiming recovery of possession of the said Office Space.
(3.) THE predecessor -in -interest of the plaintiff filed an ejectment suit No.197 of 1990 against the defendant. The said suit was compromised and a decree was passed in terms of settlement filed in the Court. The compromise decree was marked as Exhibit 1 collectively. Some of the relevant terms and conditions of the said compromise decree as reproduced hereinbelow: - "Clause (i). The defendant has agreed to enhance the rent to Rs.4,146.73 p. inclusive of all taxes per month from the month of July, 1990 in respect of the suit premises. Clause (ii). The Plaintiff has agreed to accept the proposed rate of rent and the total rent in respect of suit premises amounting to Rs.4146.73 p. inclusive of all taxes. In the event of increase in Municipal Taxes, the Defendant will bear the proportionate increase in taxes. Clause (iii). The defendant has agreed to review the rates of rent in the year 1995 and thereafter at the instance of the Plaintiff he reviewed after every 5 years which will be not exceeding 15% of the existing rent. Clause (v). The Defendant will have right to fix up at its own cost counter, furnitures etc. bring in heavy steel safes and safe -deposit locker, locker, cabinate of any number and sizes to defendants' requirements and erect partition walls wooden or brick -built in part or whole to construct strong -room, safe -deposit vault with steel doors at any place considered suitable by the Defendant, to fix up additional light and fan points, wherever necessary and later, and remove at any time any and/or all of them belonging to the defendant. The defendant will have the right to remove articles including the strong room door, vault door, collapsible gate/s, grill gate/s brought in the premises and belong to the defendant whether fixed up or embedded. Clause (viii). The fixation of rent at the rate of Rs.4146.73 p. inclusive of all taxes shall be deemed to be effective from the month of 1st July, 1990 and the rent for the month of July, 1990, is being paid by the defendant here and now by a bank draft drawn on United Bank of India, High Court Branch in favour of the plaintiff Vs. Depali Mall: ok. Clause (ix). The defendant shall not ask the plaintiff for reimbursement of any expenses necessary for repair and renovation as mentioned in Clause Nos. IV to VII above. Clause (xii). The defendant shall have option to install a power generator of required capacity to be placed in the rented space inside the premises considered fit and proper by the Bank without being liable to payment of further rent or otherwise. Clause (xiii). The Plaintiff will keep the premises wind and water tight and to do all repairs of the suit premises, as and when required, while washing every 2 (two) years and painting of doors and windows every 5 (five) years. If the Plaintiff fails to do such repairs or not perform any of their obligations the defendant shall be at liberty to do the same at plaintiff's cost and such cost will be paid by the plaintiff to the defendant on demand failing which the defendant shall recover the same from the monthly rent payable by the defendant to the plaintiff." ;