SAHIDULLAH MUNSHI,J. - (1.) The Court :- This is an application filed by the plaintiff praying for a judgment upon admission against the defendant for recovery of possession of the demised premises. A short background of this case is necessary for disposal of the present application. The plaintiff granted a lease in favour of the defendant on 22nd May, 1998 for the suit premises (hereinafter referred to as the 'demised premises') for a period of 30 years commencing from 1st April, 1998. Certain acts have been prohibited and some have been permitted by the lessor being the plaintiff herein to be done by the defendant/lessee in the demised premises. As per clause (ix) of the said lease deed, the defendant/lessee was permitted to cause internal space adjustment and reallocation of the service and utilities without adversely affecting the structural ability of the building. Such acts have been permitted to the defendant for proper utilization of the demised premises according to defendant's need to make its operation viable. However, in the selfsame clause the lessor has mentioned that if required, the defendant may cover the open space between the main building of the demised premises and the structures in the demised premises which is presently being used as generator station only by fixing asbestos shed. In clause (xi) of the lease deed it is mentioned that if there be any breach or non-observance of any of the covenants, conditions and stipulations on the part of the lessee and on the happening of any such event, the lessor should give three months' notice in writing under Registered Post with Acknowledgment Due to the lessee to remedy the breach and in case the lessee fails to remedy such breach, in that event it would be lawful for the lessor at any time thereafter to re-enter upon the demised premises or any part thereof. Clause (2) page 8 of the lease deed further shows that the lessor shall not object installation of modern plant and machineries and removal of the machineries' scrap from time to time by the lessee and shall not obstruct movement thereof as also the movement of inputs and outputs to and from the demised premises.
(2.) According to the plaintiff, notwithstanding such permission to the defendant to install modern plant and machinery at the demised premises and to remove the same therefrom, no right has been given to the defendant by the said lease to make any construction thereat except for covering open space between the main building of the demised premises and the structure thereat being used as generator station by fixing an asbestos shed, if required.
(3.) On the allegation that the defendant proceeded to surreptitiously construct a concrete foundation within the demised premises of approximately 11 meters and 4 meters as a base for installation of a printing machine thereat and wherein the defendant excavated a portion of the foundation of the building comprised within the demised premises feeling that the defendant violated the terms and conditions stipulated in the lease deed, the plaintiff terminated the lease by a notice dated 26th December, 2008 as the defendant failed to remedy the breach for removing such foundation within the period specified in the said notice and thereafter proceeded to file a suit praying, inter alia, for recovery of possession of the demised premises by evicting the defendant therefrom. Prior to the present suit, the plaintiff also filed a suit being C.S. No.268 of 2007 against the defendant and prayed, inter alia, for - a) Decree for declaration that the defendant is not entitled to install any new plant and machinery within the demised premises; b) Decree for declaration that the defendant is not entitled to install any additional or new plant and machinery and/or to construct any new foundation therefor within the demised premises; c) Decree for perpetual injunction restraining the defendant, its servants, agents and/or assigns from proceeding any further with the installation of any new plant and machinery in the demised premises; d) Decree for perpetual injunction restraining the defendant, its servants, agents and/or assigns from installing any new or modern plant and machinery within the demised premises. ;