- (1.) THE principal issue that arises for consideration in the instant appeal is whether the Hon'ble First Court erred in law in refusing to pass a summary judgement and decree for recovery of vacant and khas possession of the entire tenanted portion under the provisions of Chapter XIIIA of the Original Side Rules of the High Court at Calcutta.
(2.) THE impugned order of the Hon'ble First Court, being an order dated 26th july, 2006, inter-alia, granted liberty to the defendant to defend the suit by filing written statement. By the said impugned order the defendant was also directed to pay to the plaintiff the actual rent collected by them month by month from kolkata Port Trust and Steel Authority of India Limited, who are sub-tenants of the defendant. The plaintiff was directed to appropriate the same in protanto satisfaction of their claim, subject to the result of the suit. The defendant was further directed to pay month by month rent @ Rs. 5. 00 per sq. ft. for the remaining area under occupation of the defendant. The defendant was also directed to pay the proportionate municipal tax as well as the electricity charge to the plaintiff. The plaintiff would be, however, obliged to raise appropriate bill therefor with supporting documents of proof of payment to the municipal authority as well as electricity authority. The payments to be made by the defendant and received by the plaintiff would be without prejudice to the rights and contentions of the parties in the suit. There was also a default clause in the impugned order whereby the Hon'ble First Court directed that in case of default of payment of monthly rent for two months at the rate so stipulated in the impugned order, or the municipal taxes or the electricity charges, there would be decree in terms of prayer (a) of the master's summons. In such case the suit would only be heard on the issue of mesne profit.
(3.) AGAINST this impugned judgement and order, the plaintiff has preferred the instant appeal.;