DIBYENDU BHUSAN DUTTA - (1.) This is an application under S. 115 of the CPC directed against the order dated July, 15, 1998 passed by the Ld. Assistant District Judge, First Court, Barasat in Title Suit No. 876 of 1993 rejecting the counter-claim made by the defendants of the suit in their application under Order 8, Rule 6A of the CPC filed before the Court on 5th May, 1998.
(2.) The Calcutta Municipal Corporation filed the suit for eviction upon termination of licence and also for damages. The plaint case, in a nutshell, may be stated as follows.The plaintiff is the owner of the suit land described in the schedule of the plaint. By an agreement dated 10-5-75 the plaintiff had granted leave and licence for a term of 21 years to one Moloy Kr. Banerjee, the defendant No. 2, carrying on business under the name and style of National Ceramic at Chowringhee Road, Calcutta, to use and occupy the suit land for the purpose of removing, at his own cost, silt deposits in the pre-settling tanks of the Corporation at its Palta Water Works for manufacturing bricks and allied products. Subsequently, the said Moloy Kr. Banerjee has assigned his rights and liability under the aforesaid agreement to the defendant No. 1, M/s. Oriental Ceramic Products Private Limited, with permission of the plaintiff. The possession of the suit land was delivered first to the defendant No. 2 and thereafter to the defendant No. 1 company. The defendant company failed to discharge its obligations under the agreement by reasons of their failure to raise boundary wall, to construct bridge over the settling tanks, to lay pipes, trolley lines etc. for the purpose of removal of the silts from the settling tanks to the defendants factory and also to pay the licence fees in terms of the agreement. The plaintiff accordingly terminated the licence with a notice dated 13-12-86 upon the defendants but they have not vacated the suit land in compliance with that notice and hence this suit for eviction from the suit land and also for damages to the extent of Rupees 3 lacs 69 thousand and odd.
(3.) The defendants filed written statement denying that they have violated terms and conditions of the agreement dated 10-5-75 and contended, inter alia, that laying pipe, trolley lines etc. were optional on their part. Their further case in the written statement is that the plaintiff had not de-watered the settling tanks as a result of which the defendants could not extract silts from the settling tanks and manufacture bricks and other allied products. Thus, shifting the responsibility for non-performance of the agreement upon the plaintiff, the defendants prayed for dismissal of the suit.;