Bhaskar Bhattacharya, J. - (1.) This first appeal is at the instance of a defendant in a suit for eviction and is directed against the Judgment and Decree dated 25th June. 2003 passed by the learned Judge, 5th Bench, City Civil Count at Calcutta in Ejectment Suit No. 166 of 1996 thereby passing a decree for eviction of the present appellant on the ground of default in payment of rent with the observation that the defendant, in an earlier suit having obtained relief under section 17(4) of the West Bengal Premises Tenancy Act ("Act"), was not entitled to get further benefit of protection under that provision of the Act.
(2.) The respondent No. 1 along with one Arun Chandra Lahiri. since deceased, the predecessor-in-interest of respondent Nos. 2(a) and 2(b) filed a suit being Ejectment Suit No. 166 of 1996 against the appellant on the ground of default in payment of rent from September, 1993.
(3.) The case made out by the plaintiff-respondents may be summed up thus: (a) One Mrs. Kanwal Madan, the proforma defendant was the original owner of the suit property. On 29th May, 1986 the said Mrs. Kanwal Madan delivered possession of the flat to Shri Ashok Chandra Lahiri. the husband of the respondent No. 1. (b) The appellant was inducted by Mrs. Kanwal Madan as a tenant in respect of the said flat at a monthly rental of Rs.2,000.00. Consequent to the sale of the said flat by Mrs. Kanwal Madan to Shri Ashok Chandra Lahiri, the tenancy of the appellant was attorned in favour of Ashok Chandra Lahiri and the appellant continued to pay rent to the said Ashok Chandra Lahiri and thus, accepted him as its landlord. .(c) The said Ashok Chandra Lahiri died on 15th January, 1995 leaving the respondent No.1 as his wife and one Smt. Urmila Lahiri, since deceased, being his mother, as his sole heirs and legal representative. The said Smt. Urmila Lahiri during her lifetime released and relinquished her right, title and interest in the said flat in favour of respondent No.1 and thus, the respondent No. 1 became the sole and absolute owner of the disputed property. (d) Smt. Urmila Lahiri died on 19th February, 1996 leaving the respondent No. 1, the widow of her predeceased son and another son, vix. Arun Chandra Lahiri. the predecessor-in-interest of the respondent No.2 (a) and 2(b) as her sole heirs and legal representatives and as such, the said predecessor-in-interest of the Respondent No. 2(a) and 2(b) had been impleaded as plaintiff No. 2 by way of abundant caution, even though, the respondent No. 1 was the sole and absolute owner of the suit property. (e) The appellant, was inducted by virtue of a lease dated November 2/1/1977 expiring with November 20. 1982 but the appellant failed to vacate the said flat and accordingly, a suit was filed against the appellant by the previous owner, namely. Mrs. Kanwal Madan for eviction on the ground of default in payment of rent. (I) Being a case of first default, the appellant got protection after having paid the outstanding amount of rent and thus, the Court dismissed the earlier Ejectment Suit No. 1028 of 1982 by a decree dated 5th March. 1986 after giving protection to the Appellant under section 17(4) of the Act. (g) The appellant failed and neglected to pay any part of the increased occupiers' share of the consolidated tax imposed by Corporation of Calcutta and on account of non-payment of commercial surcharge, a sum of Rs.92,309.00 was due and payable by the appellant to the plaintiff No. 1 up to 31st December. 1995. (h) The appellant was a habitual defaulter and accordingly, the plaintiff No. 1 was compelled to initiate distress case being Suit No.1 of 1988 against the appellant and after the issue of the distress warrant, the appellant made payment of the arrears of rent. (i) The plaintiff No. 1 by a notice dated December 15, 1995 under section 13(6) of the West Bengal Premises Tenancy Act and section 106 of Transfer of Property Act terminated the tenancy of the appellant asking it to vacate the suit property on the expiry of January, 1996 but in spite of receipt of such notice, the defendant did not vacate the suit property. Hence the suit.;