- (1.) THIS first appeal is at the instance of a tenant-defendant in a suit for eviction on the ground of default in payment of rent and directed against the judgment and decree dated 15th day of May, 1997, passed by the learned Judge, 4th Bench, City Civil Court at Calcutta, in Ejectment Suit No. 83 of 1994 thereby passing the decree for eviction on the ground of default in payment of rent.
(2.) BEING dissatisfied, the defendant has come up with the present first appeal.
(3.) THE case made out by the plaintiff-respondent may be abridged thus: (a) One Durga Charan Pyne, the predecessor-in-interest of the respondents, during his lifetime, was the owner of the premises No. 8, Canal road, Calcutta-22 and upon his death on 29th January, 1992, the respondents, being his widow and the sons, inherited the property as the sole heirs. (b) One Delta Trading Company was a tenant under the said predecessor-in-interest of the respondents in respect of the entire 8, Canal Road and the appellant and some others were the sub-tenants under the said Delta Trading company. The said Delta Trading Company surrendered their tenancy right to the predecessor-in-interest of the respondents and all the sub-tenants including the appellant became direct tenants of the predecessor-in-interest of the respondents in respect of their respective tenancies with effect from february, 1988. The appellant, thus, became monthly tenant under Durga charan Pyne in respect of the suit premises at a monthly rental of Rs. 800/-according to the English calendar month and paid rent accordingly. (c) The tenants of the said premises including the appellant are all using the property for commercial purposes and under the provision of the Calcutta municipal Corporation Act only one consolidated rate bill is issued for the entire premises and as such, surcharge of 50 per cent over the existing rate has been imposed in respect of the portion of the premises used for commercial and non-residential purpose. Such surcharge is also included in one bill issued by the Calcutta Municipal Corporation but this surcharge is payable by the respective tenants to the landlord under the provision of the Calcutta municipal Corporation Act to the extent of half of the consolidated rate. (d) The Calcutta Municipal Corporation enhanced the municipal taxes with effect from fourth quarter in 1985-86 at Rs. 1968/- per quarter and imposed Rs. 972/- as surcharge with effect from the said period. Taking into consideration the total rent payable in respect of the said premises, the respondents reasonably apportioned the defendant's share at Rs. 304/- per month payable with effect from January, 1986 and thus, a total sum of rs. 27,664/- became due and payable by the appellant to the respondents from January, 1986 to July, 1993. The appellant having failed and neglected to pay that amount in spite of repeated demands, the respondents by filing the suit sought to recover the same. (e) The last rent payable by the appellant to the respondents in respect of the said premises had been Rs. 1104/- per month (rent Rs. 800/- + surcharge and half of the municipal tax of Rs. 304/-) at the time of determination of the tenancy with effect from 31st August, 1993. (f) The appellant was a defaulter in payment of rent and taxes since november, 1990. ;