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In spite of service, the respondent is not represented.
The appellant undertakes to affirm and stamp the appeal/application as per Rules within a month on resumption of normal functioning of the court. Subject to such undertaking, the appeal and the applications are taken up for hearing through video conferencing.
Re : CAN 2723 of 2020 The appeal is preferred beyond the period of limitation. There is a delay of about 50 days in preferring the appeal. We have perused the application for condonation of delay. We are satisfied with the reasons shown for not being able to file the appeal within the prescribed period of limitation.
Under such circumstances, the delay of 50 days in preferring the appeal against the order dated 6th December, 2019 is condoned.
Accordingly, the application being CAN 2723 of 2020 for condonation of delay under Section 5 of the Limitation Act is allowed.
Re : FMAT No.210 of 2020 This appeal is arising out of an order passed by the VIth Bench of the City Civil Court at Calcutta in connection with an application filed by the defendant under Order XXXIX Rule 4 of the Code of Civil Procedure. Initially the plaintiff has obtained an order of injunction on 27th February, 2019. The plaintiff filed a suit for declaration that the defendant is not entitled to evict the plaintiff without following the due process of law and a decree for permanent injunction restraining the defendant and their men and agents from entering the schedule property. In the plaint, the plaintiff has alleged that the cause of action for the suit arose on 22nd February, 2019 when the plaintiff was being harassed and was also coerced to write a letter on the said date and again on 30th June, 2019 when at the instance of the defendant, the plaintiff/company's director's son was harassed and even the electricity connection was disconnected at their behest in the suit premises.
The learned Counsel for the appellant has drawn our attention to an undated letter claimed to have been written on 22nd February, 2019 whereby one of the directors of the appellant undertook to clear the rent dues till the date of the issuance of the letter within March, 2019 as per agreement. The plaintiff was unable to show that all the amounts required to be paid under the agreement have been fully paid.
The defendant took out an application for recalling of the ad interim order of injunction on the ground of suppression of material facts. The defendant had disclosed various letters alleged to have been written by one of the directors and sometimes jointly by the directors to show that the defendant had agreed to surrender the tenancy and had requested for extension of time to pay the due arrear rent amounting to Rs.3.91 lakhs up to February, 2019. The defendant had also disclosed the letter dated 18th February, 2019 showing that the plaintiff owing to inability to pay the rent has intended to surrender the tenancy and deliver khas vacant possession of the said flat by the first week of February, 2019.
During the course of argument it is alleged that the letters on which reliance has been placed by the defendant are forged and fabricated and the persons alleged to have signed the letters on behalf of the defendant/complainant were no more directors of the said company. However, in the reply to the written objection there has been no categorical denial of the said letters dated 17th January, 2019, 18th February, 2019 and 4th March, 2019.
The learned Trial Court has applied the principles of non‐traverse and held that in the absence of any clear denial of the said letters and the averments made in the written objection dealing with such letters it has to be construed that the plaintiff had accepted the allegations made against it by the defendant and there has also been clear admission of non‐payment of rent and intended surrender.
However, we have not been shown any letter wherefrom it appears that the plaintiff had actually surrendered possession of the property in question. It is needless to mention that possession can only be taken in accordance with law and not otherwise. Those letters are sufficient to indicate that there was intended surrender of tenancy in favour of the defendant and those letters are certainly crucial to determine as to whether and on what terms the plaintiff was at all allowed to continue in possession of the property in question as claimed by the plaintiff.
Under such circumstances, we do not find any reason to interfere with the order passed by the learned trial Judge.
However, it would not prevent the plaintiff to apply before the learned trial Judge for appropriate reliefs on establishing its legal rights and proof of occupation.
The appeal being F.M.A.T. 210 of 2020 is disposed of. Consequently, the application being CAN 2724 of 2020 stand disposed of.
Since the respondent/opposite party is not represented, let this order be communicated to the respondent within one week from date.
Certified copy of the order, if applied for, be given to the parties on compliance of requisite formalities.