- (1.)By this motion under Section 115 of the Procedure Code, 5 of 1908, Nirmalendu Bhowmick, the sole principal Defendant in an action in ejectment, in the first additional Court of the Munsiff at Alipore, governed by the Premises Tenancy Act, 12 of 1956, asks for reversal of an order: Order No. 26 dated October 3, 1964: by which his defence against delivery of possession has been struck out under Section 17, Sub-section 3, ibid.
(2.)One Dwijendra Chandra Ghosh, the principal opposite party before me, raised this action in ejectment on December 7, 1963. Formerly, to be exact, upto July 27, 1963, he and his brothers Rukshmini Kanta, Bepin Behari, Jitendra Chandra and Sachindra Chandra were the joint owners of 28/3/1 Nakuleswar Bhattacharji Lane (for short '28/3/1'), in the southern portion of the ground floor of which the Petitioner Nirmalendu has been a tenant on a rent of Rs. 150 a month. By a registered deed of partition dated July 277 1963, amongst the brothers, '28/3/1' fell exclusively to the share of Dwijendra Chandra. Hence the suit by him alone, his brothers having been impleaded as proforma Defendants.
(3.)A suit as this is grounded, inter alia, on reasonable requirement of '28/3/1' for Dwijendra Chandra's own occupation, as also on default by Nirmalendu in the payment of rent for months on end nine months in all from December 1961 to August 1962. Of these nine months again, the rent for the first six months: December 1961 to May 1962: was deposited with the Controller, but beyond the prescribed time; and the rent for June to August 1962 was deposited in Court on April 7, 1964, some 122 days after the institution of the suit, the writ of summons of which was served on Nirmalendu qua principal Defendant, first on January 6, 1964, under Order 5, Rule 17 of the Procedure Code and then on March 9, 1964, through registered post, as indeed is the unfailing practice in the subordinate Courts to do by way of abundant caution.