- (1.) THIS first appeal is at the instance of a defendant in a suit for declaration of title and permanent injunction and is directed against the judgment and decree dated October 8, 1999 passed by the learned Judge, Eleventh Bench, City civil Court at Calcutta in Title Suit No. 1105 of 1990 thereby declaring that the plaintiff was a tenant under the defendant in respect of the western part of the godown on the ground floor of the premises No. 153a, Acharya Prafulla Chandra road, Calcutta, at a monthly rental of Rs. 513/ -. It was further declared that the decree passed in S. C. C. Suit No. 3076 of 1987 was not binding upon the plaintiff and at the same time, the defendant was permanently restrained from dispossessing or evicting the plaintiff from the suit premises in execution of the decree passed in S. C. C. Suit No. 3076 of 1987.
(2.) BEING dissatisfied, the defendant has come up with the present first appeal. The plaintiff-respondent filed a suit in the City Civil Court at Calcutta being Title Suit No. 1105 of 1990 thereby praying for declaration that the plaintiff was a tenant under the appellant in respect of one godown being the western part of godown no. FG-1 situated on the ground floor of premises No. 153a, acharya Prafulla Chandra Road at a monthly rental of Rs. 513/- payable according to the English Calendar and for further declaration that the decree passed in S. C. C. Suit No. 3076 of 1987 was not binding upon it. The plaintiff further prayed for permanent injunction restraining the appellant from dispossessing and/or evicting the plaintiff from the suit premises in execution of the decree passed in S. C. C. Suit No. 3076 of 1987.
(3.) THE case made out by the plaintiff-respondent may be summed up thus: a) The plaintiff was a partnership firm carrying on business at 25, Gangadhar babu Lane and also at 153a, Acharya Prafulla Chandra Road. The plaintiff was a tenant under the defendant in respect of one godown being the western part of godown no. FG situated on the ground floor of the premises no. 153a, Acharya Prafulla Chandra Road at a monthly rental of Rs. 513/-payable according to English Calendar. B) In the month of June 1985, the plaintiff was inducted in the suit premises and the same was being used as godown. Since the inception of the tenancy, the defendant did not issue any rent receipt after acceptance of monthly rental of Rs. 513/- from the plaintiff. The defendant did not grant such receipt on the ground that the defendant being a tenant would be evicted if such rent receipt was granted. C) The defendant having refused to accept rent from the plaintiff for the month of August 1987, the plaintiff tendered the said rent for the month of august 1987 by money order and the defendant having further refused to accept such money order, the plaintiff started depositing the rent in the office of the Rent Controller after observing statutory formalities. D) On 16th July, 1990, the defendant came to the plaintiff"s office at 25, gangadhar Babu Lane and demanded possession on the ground that the defendant obtained a decree for possession in respect of the suit property from the Small Causes Court at Calcutta. The plaintiff through their advocate made enquiry and came to know that the defendant on 18th december, 1987 instituted the S. C. C. Suit No. 3076 of 1987 before the sixth Bench, Small Causes Court at Calcutta impleading one Monohar Lal chopra as party defendant in his personal capacity alleging revocation of leave and licence. The defendant tried to make a wrongful gain by introducing the alleged story of grant of leave and licence in favour of the said Monohar Lal Chopra suppressing the material fact of the monthly tenancy of the plaintiff. The defendant with an ulterior motive filed the said suit against Monohar Lal Chopra who had no connection with the plaintiff firm. E) The said S. C. C. Suit No. 3076 of 1987 was decreed on 11th July, 1990. The said decree was not binding upon the plaintiff. The defendant having threatened to dispossess the plaintiff by taking aid of the said decree passed against Monohar Lal Chopra, the suit was filed. The suit was contested by the defendant by filing written statement thereby denying the material allegations made in the plaint and the defence taken by the defendant may be summarized thus: (i) At all material times, the defendant was a tenant in respect of one godown being No. FG-1, situated on the ground floor of premises no. 153a, Acharya Prafulla Chandra Road, Calcutta under M/s. Shree shiv Shakti Mills Pvt. Ltd. at a monthly rental of Rs. 1025/- payable according to English Calendar and the defendant had partitioned the godown into two parts by a partition wall running from South to North for the purpose of stocking his rubber goods as well as iron goods since the defendant deal with sale and supply of rubber goods and iron goods as well. (ii) One Monohar Lal Chopra, on or about 31st May, 1985, came to the defendant and requested him to provide a temporary accommodation in a portion of the godown on the ground floor of the said premises and expressed his difficulties and urgency on the ground that he was unable to carry on his business at premises No. 25, Gangadhar Babu Lane, carried on in the name and style of Capital Transport Corporation of india due to the regular disturbance and interference caused by his employee who had formed a Trade Union and were not permitting him to continue the said business at 25, Gangadhar Babu Lane, Calcutta until some sort of settlement was reached with them. (iii) That the said Monohar Lal Chopra further informed the defendant that he would take some time to sort out the difference between him and his employees and requirement for the accommodation was for about 21 months or even less. He assured the defendant that he would vacate the premises definitely by the expiry of 21 months. (iv) On the aforesaid request of Monohar Lal Chopra, the defendant granted him a verbal leave and licence for a period of 21 months commencing from 1st June, 1985 and ending in 28th February, 1987, without any licence fee in respect of western part of his godown with small office room in the ground floor of the premises having separate entrance gate opening on Sahitya Parishad Street just beside the gate of the defendant. (v) On the expiry of the period of licence, on 28th February 1987, the defendant asked the said Monohar Lal Chopra to vacate the godown in terms of leave and licence but he refused on various false pretexts. The defendant by his advocate sent notice dated 7th September, 1987 under registered cover determining the said leave and licence and called upon him to deliver the vacant possession of the godown within 15 days from the receipt of the said notice; but in spite of service of the said notice the said Manohar Lal Chopra did not vacate and in reply it was stated that he was a tenant under the defendant in respect of godown at a monthly rental of Rs. 512. 50p. The said Monohar Lal Chopra is the father of some of the partners and the husband of one of the partners of the plaintiff. (vi) The defendant filed a suit in the Presidency Small Causes Court being s. C. C. Suit No. 3076 of 1987 under Section 41 of the Presidency Small causes Court Act against the said Monohar Lal Chopra in which monohar Lal Chopra filed written statement and contested the suit. In course of hearing of the said suit, the partners of the plaintiff, namely, sri Dharampal Chopra was examined on behalf of the said Monohar Lal chopra as DW-2 who produced a book of accounts which was marked as Exbt.-"b". The learned Judge of the Small Causes Court decreed the suit on contest with clear finding that the said book of accounts did not help the defendant, Monohar Lal Chopra in the matter of proving his tenancy. (vii) The plaintiff filed the present suit suppressing the material facts as the plaintiff had knowledge that a decree had been passed in which the plaintiff"s partners appeared and examined himself as DW-2 and the book of accounts of the plaintiff was also produced. (viii) The defendant granted leave and licence to Monohar Lal Chopra and not to the firm M/s. Capital Transport Corporation of India. It was a false statement that the plaintiff was inducted as a tenant in respect of the godown. The suit was liable to be dismissed.;