- (1.) The Court: This is an application under Chapter XIIIA of the Original Side Rules of this Court for final judgment against the defendant for recovery of vacant possession as also for mesne profits. The facts inter alia involved in the suit are set out hereinafter : The plaintiff is the owner and landlord of the premises. (a) An Indenture of Lease was executed by and between the plaintiff's predecessor in title and the defendant on December 1, 1969. The said Indenture of Lease has also been duly registered. The Lease is for a period of 21 years commencing from the first day of November, 1969. (b) In terms of the said Indenture, the Lease has expired on 31st October 1990. Though it is not required under the law yet out of abundant caution, the plaintiff by a letter dated 25th September 1990 (Annexure 'A' to the A/R) duly informed the defendant of the imminent expiry of the Lease on 31st October 1990 and intimated that the plaintiff's authorised representative will call upon the defendant to receive vacant possession of the demised premises. (c) A writ application was filed, inter alia, claiming possession of the demised premises. The same was rejected principally on the ground that such a relief cannot be granted in a writ petition. While dismissing the application, it was, however, made clear that there was no adjudication of the merits of the controversy raised in the writ petition and it would be open to the writ petitioner to seek appropriate remedy in accordance with law.
(2.) It is the case of the applicant/plaintiff that since duration of the lease was for a period of 21 years and the lease expired on 31st October, 1960, the defendant has no defence whatsoever and a decree for eviction should follow as a matter of course. It has also been submitted by Mr. A. K. Sen learned Advocate for the plaintiff that the defendant is not entitled to protection under the West Bengal Premises Tenancy Act inasmuch as the term reserved under the lease is for a period of 21 years and the provisions of the West Bengal Premises Tenancy Act did not and does not apply.
(3.) The learned Advocate for the defendant however has argued that there is a bona fide defence which should entitle the defendant to have the suit tried on evidence. It has further been submitted on behalf of the defendant that the tenancy strictly construed as per the deed of lease in question created monthly tenancy in favour of the defendant. Mr. Ajoy Chatterjee learned Advocate referred to Clause 4(II) and Clause 4(xi) of the lease respectively. It has been submitted on behalf of the defendant that "Sooner determination" in all the said clauses really mean that the lease strictly speaking should not be taken to be a lease for a period of 21 years. The learned Advocate referred to proviso to Section 3 of the West Bengal Premises Tenancy Act. In reply to the contention raised by the learned Advocate for the defendant, it has been argued on behalf of the plaintiff that the said argument is ex facie not sustainable and can termed as in aid of a moon shine defence. It has further been submitted on behalf of the plaintiff that in order to relieve the landlord of the rigorus of the provisions regarding eviction of tenants under the West Bengal Premises Tenancy Act, the legislature has thought it fit to confer a right of the landlord in respect of a tenancy, the tenant whereof would have an unrestricted right to enjoy the tenancy for a period of 21 years. The intention appears to be clear that by giving unrestricted right of enjoyment for 21 years, on the other hand the landlord cannot reserve to himself the right to terminate the same at his option at any time before the expiry of the period. The language of the proviso it has been submitted also makes it clear that the lease is not expressed to be terminable at the option of the landlord or tenant.;