Harish Tandon, J. - (1.) G.A. 218 of 2013 is taken out by the defendant for rejection of the plaint primarily on the ground that the suit is barred by law. Essentially this is an application under Order 7 Rule 11 of the Code, though such provision does not apply in stricto sensu to the High Court exercising ordinary original civil jurisdiction in view of Order 49 Rule 3 of the Code of Civil Procedure. Such applications are frequently entertained not under Order 7 Rule 11, but the prevalent practice is to take off the plaint from the file. Principally the application of such nature is dealt with on the principles of Order 7 Rule 11 of the Code and, therefore, the scrutiny should be confined to the averments made in the plaint. Both the learned Advocates have agreed on the above proposition and restricted their arguments on the statements made in the plaint and the documents annexed thereto.
(2.) Before proceeding to deal with the points agitated by the respective Counsels, the case made out in the plaint is summarised as under: "(i) The plaintiff is the owner of premises No. 15/2, Jawaharlal Nehru Road, Kolkata -700 013. (ii) The defendant was inducted as a monthly tenant on the basis of an agreement dated 6th May, 1993 in respect of a shop room/show room measuring 1700 sq.ft. on the ground floor in the Oberoi Grand Hotel Arcade at a rental of Rs. 10,000/ - per month payable according to English Calendar and quarterly municipal tax including surcharge and water tax/fees, if any in the said tenancy and the present municipal rates and taxes is Rs. 18,622/ - per quarter. (iii) The said tenancy was created for commercial purposes and was essentially governed by the West Bengal Premises Tenancy Act, 1956. (iv) The Act of 1956 was subsequently repealed by West Bengal Premises Tenancy Act, 1997 which came into force on and from 10th July, 2001 and by reason of the provisions contained in the later Act, the defendant became a lessee for month to month and such tenancy is terminable by 15 days notice under the provisions of Transfer of Property Act, 1882. (v) The tenancy of the defendant was terminated by a notice dated 14th June, 2012 issued under Sec. 106 of the Transfer of Property Act which was sent by registered post with acknowledgement due and the said notice is duly received by the defendant on 16th June, 2012. (vi) In spite of having received the said notice, the defendant failed and neglected to vacate the suit premises and/or hand over the possession thereof which makes him liable for damages/mesne profit at the rate of Rs. 11,900/ - per diem on and from 2nd July, 2012."
(3.) On the basis of the aforementioned statements, the plaintiff claims for a decree for 'vacate' and 'khas' possession of the shop room/show room along with a decree for damages.;