- (1.) This matter has been referred to me as there was difference of opinion between two Hon'ble Judges of a Division Bench of this Court in deciding an appeal against the judgment of an Hon'ble Single Judge decreeing the suit of the respondents/plaintiffs for recovery of possession of certain portions of a premises in a summary proceeding under Chapter XIIIA of the Original Side Rules of this Court. In the suit, the respondents/plaintiffs claimed recovery of possession, mesne profits and certain other reliefs in connection with a portion of premises No. 20, Jatindra Mohan Avenue, situated in Kolkata 700006. The premises in question was leased out to the appellant/defendant by executing a deed of conveyance on 24th December, 1996, by the owners of the premises at that point of time, Todi Investment Ltd. The initial lease period was for five years, with provision for renewal for a further term of five years. In the plaint, it has been pleaded that the extended period of five years was to expire on 1st January, 2006. It is the case of the plaintiffs, who are respondents in this proceeding that upon expiry of the contractual period, the defendant has no right to remain in possession of the suit premises or any part or portion thereof and the defendant was obliged to quit and deliver vacant and peaceful possession of the suit premises to the plaintiffs. On expiry of the contractual period, according to the plaintiffs, the defendant is in wrongful and illegal possession on and from 2nd January, 2006.
(2.) In connection with the said suit the plaintiffs had taken out an application under Chapter XIIIA of the Original Side Rules with prayer for final judgment on the ground that the defendant had no defence to the claims of the plaintiffs. The learned Trial Judge upon holding that the defendant had no defence and far less any substantial defence to the claim of the plaintiffs to delivery of possession, decreed the suit in favour of the plaintiffs in terms of prayer (a) of the Master's Summons. This Judgment was delivered on 10th May, 2007. In prayer (a) of the Master's summons, the plaintiffs prayed for: "a. Summary judgment and decree for recovery of vacant and peaceful possession of the suit premises being entire basement, entire ground floor and the entire first floor in the building at the premises no. 20, Jatindra Mohan Avenue, PS. Burtolla, Kolkata more fully described in a Schedule being Annexure "A" to the grounds attached hereto; " The claims for mesne profits and other reliefs, however, was relegated for trial in the suit.
(3.) The said judgment was appealed against by the defendant/appellant, in which two Hon'ble Judges of this Court have taken differing views. Before I refer to the opinions of the two Hon'ble Judges and the points of difference emerging from their Lordships' opinions, narration of certain factual aspects of the controversy which resulted in institution of the suit would be necessary. The initial deed of lease was executed on 24th December, 1996 between Todi Investments Ltd. , (being the predecessor-in-interest of the plaintiffs) and the defendant. Rent was stipulated to be Rs. 36,740/- to be paid month by month on or before 3rd day of the succeeding month. Clause 5 of the deed stipulated: "PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED that the Lessor will, on the written request of the Lessee made not less than one calendar month before the expiration of the term hereby created, if there shall not at the time of such request be any existing breach or nonobservance of any of the covenants on the part of the Lessee herein contained, grant to the Lessee a renewal of the lease of the demised premises for one further period of 5 years from the expiration of the term hereby granted at the rent increased by 15% of the then rent in respect of such further period and containing the same covenants and provisions as are herein contained excluding this present covenant for renewal. ";