- (1.) THIS appeal is at the instance of the defendants in a suit for eviction of licensees and is directed against the judgment and decree dated 20th January, 1998 passed by the learned Judge, Seventh Bench, City Civil Court at Calcutta, in Title Suit No. 459 of 1989, thereby passing a decree of eviction against the present appellants. Being dissatisfied, the defendants have come up with the present appeal.
(2.) THE case made out by the plaintiff-respondent may be summed up thus: (a) The plaintiff was a tenant of a shop-room on the ground floor of premises no. 12/c, Lindsay Street, Calcutta"700 013 at a monthly rental of Rs. 60/-and he started his own business in the said shop-room under the name and style of M/s. Bombay Tailoring with his own equipments, furniture and fittings. (b) The plaintiff having been allotted an accommodation in dr. B. C. Roy market, Calcutta"700 069, he started a new business of his own in the name of M/s. Novelty Cloth Stores in the said market and for the purpose of running the business at the suit property, he engaged one Mr jamaluddin Wasty, since deceased, the predecessor-in-interest of the defendants, as the Manager of the said business. The job of the Manager was a full time one and he used to look after the said business and earn his remuneration according to the sales in the said business. The plaintiff used to earn profits of not less than Rs. 500/- a month out of the said business under the name and style of M/s. Bombay Tailoring. (c)The plaintiff had an overall control of the said business although looked after by the said Manager. The said Jamaluddin Wasty died in March 1988 and following his death, the defendant no. 1 being the widow and the defendant no. 2 being his son, who were dependants of the said Manager, approached the plaintiff for allowing them temporarily to look after the said tailoring business of the plaintiff in the same way their predecessor used to act as manager. The plaintiff, considering the said proposal and having regard to the relation with their predecessor and also on humanitarian consideration, allowed the defendants to supervise the said tailoring business of the plaintiff without asking them to pay any sum out of the business during their period of temporary supervision. (d) The plaintiff intended to allow the defendants to acquire some assets out of the income of the business in order to utilise the same as the source of their income after handing over the said shop-room for a short time. (e) The plaintiff never intended or agreed to confer any right in respect of the said shop-room and the defendants were bare licensee of the plaintiff in respect of the shop-room and the business having all the equipments, fittings and furniture requiring for a tailoring shop for a temporary period. (f)The defendants though initially assured the plaintiff to vacate and make over the possession of the shop-room within a short time after procuring their subsistence, ultimately, grew greedy and tried to set up the claim in respect of the said shop-room and business with mala fide motive and sent a cheque of Rs. 2,400/- for the month of December 1988 to the plaintiff who smelling the foul intention of the defendants did not encash the said cheque. (g) Subsequently, the plaintiff issued notice dated 7th February, 1989 through a learned Advocate asking the defendant to vacate and make over the possession of the room. In spite of service of such notice, the defendants did not vacate. Hence the suit. The suit was contested by the defendants by filing written statement thereby denying the material allegations made in the plaint and their defence were as follows: (i) The predecessor-in-interest of the defendants was inducted as a subtenant by the plaintiff in the year 1965 at a monthly rental of Rs. 50/- and the said jamaluddin Wasty started a tailoring business in the said shop-room in the name and style of M/s. Bombay Tailoring. (ii) After the death of Jamaluddin Wasty in the month of March 1988, the defendant no. 1 being his widow, along with the son, the defendant no. 2 became the joint owner of Bombay Tailoring. After the death of Jamaluddin wasty, the plaintiff treated the defendants with utmost sympathy and asked them not to worry for the rent and to pay the same after sometime when everything was settled. The defendants in honest belief handed over a cheque of Rs. 2,400/- as rent of the said room on 16th November, 1988 but the plaintiff with mala fide intention refused the same and filed the present suit. (iii) The defendants were tenants in respect of the suit property at a monthly rental of Rs. 50/ -. At the time of hearing, the son of the plaintiff as well as the original plaintiff gave evidence in support of the case made in the plaint and in addition, an employee of the Talbot Company as well as the clerk of the learned Advocate who issued the notice of termination of the licence deposed in favour of the plaintiff. On the other hand, both the defendants gave evidence in opposing the plaint case.
(3.) THE learned Trial Judge by the judgment and decree impugned herein has disbelieved the defence of tenancy taken by the defendants and decreed the suit. Being dissatisfied, the defendants have come up with the present appeal.;