- (1.) THIS Rule was obtained by in the landlord of a thika tenant whose application under section 9 of the calcutta Thika Tenancy Act, 1949 was allowed by the Thika Controller, but on appeal the said order was set aside and the matter was remanded back to the Thika Controller. The rule was obtained on an application made under section 115 of the Code of Civil Procedure paying a court fee of Rs. 5/- only. When the attention of Mr. Guha, learned advocate for the petitioner, was drawn to this fact, he agreed to put in the balance amount of court fees of Rs. 15/- in course of this day after converting the application with the leave of the court, into one under article 227 of the Constitution.
(2.) THE opposite party was a thika tenant under the petitioner in respect of the disputed holding. As the opposite party failed to pay rent from january, 1974 and also Municipal taxes from the first quarter of 1968-1969, the petitioner filed an application under section 9 of the Act for permission to enter the holding on the ground that the thika tenant had abandoned the holding. Notices were duly published as contemplated under section 9 of the Act and thereafter the matter was taken up by the Thika Controller who by his order dated 5tn June, 1975 granted permission to the petitioner to re-enter the disputed holding after treating the same to be abandoned by the opposite party. Against this order the opposite-party preferred a miscellaneous appeal which was heard by the additional District Judge, 11th court, alipore. From certain materials produced before him the learned Judge took the view that as the address of the opposite-party was known to the petitioner, the petitioner ought to have served the notice under section-9 of the Act upon the opposite party at her address. He further took the view that from certain rent receipts filed by the opposite party which showed that the rent from January 1972 to December 1972 was paid after more than one and half years, it was clear that from non-payment of rent from January 1974 it cannot be inferred that the thika tenant had abandoned the holding. In my view, the learned Judge was not correct in his approach to the case. Section 9 requires the landlord to file the prescribed notice showing that he intends to treat the holding as abandoned. The copies of the notice which the landlord is required to file were duly filed in this case before the controller and the same were duly published by the Controller as required under section-9 read with rule 6 of the rules framed under the Act. It is immaterial whether the landlord was aware of the address of the thika tenant or not. The section does not require the landlord to pursue his tenant and serve a notice upon him as is required in the case of service of a notice to quit upon a tenant. That being so, if the landlord fulfilled the requirement of section-9, it is enough for his purpose. Secondly, if the tenant is not actually residing in the holding in question and he makes no arrangement for payment of rent in proper time, it is sufficient to constitute abandonment in the eye of law. That being so, the learned Judge in the lower appellate court was not justified in remanding the matter back to the Thika Controller on the basis of materials produced before him at the appellate stage.
(3.) I therefore make this rule absolute, set aside the order of the learned Additional District Judge and restore that of the Thika Controller. In view of the fact that the petitioner even after the passing of the appellate order made an offer to settle the matter amicably with the opposite-party as would appear from annexure X (ii) to the affidavit-in-opposition filed on behalf of the opposite party, but the same was not accepted by the opposite party, I direct that the opposite party will pay the costs thrown away by the petitioner in this Rule, the hearing fee being assessed at five fold mohurs. Mr. Guha, learned Advocate for the petitioner is permitted to put in the deficit court fee of Rs. 15/- and to amend the cause title of the application in course of this day.;