Gyurmeyla Sadu Tshang vs Andrew Sarkies

Ramendra Mohan Datta, J.—The Plaintiffs'' case is that the Plaintiffs were refugees from Tibet. They came over to India in order to make India their permanent home. While in Tibet most of them lived together in a very big house consisting of about 85 to 90 rooms.

On or about January 19, 1962, the Plaintiffs purchased the premises being premises Nos. ISA and 13B Sudder Street and Nos. 5A, 6A, 7A, 8A, 9A, 10A, 11A, 12A and 13A Madge Lane, Calcutta (herein-after called the Sudder Street premises). One Mrs. M. Sarkies, the successor-in-interest of M.S. Sarkies, deceased, the predecessor-in-interest of the present Defendants, had been running a hotel since sometime past as a tenant under the name and style of Fairlawn Hotel in a portion of the premises No. 15A Sudder Street and in, the first floor of 13A Madge Lane. The said portion constituted a part of the said Sudder Street premises. After the said purchase the Plaintiffs were attorned as the landlords. The Plaintiffs accepted rent at the rate of Rs. 700 per month from the said Mrs. M. Sarkies on behalf of the ''Estate M.S. Sarkies, deceased'' for the broken part of January and also for the month of February 1962. The Plaintiffs issued rent receipts describing themselves as G. Sadu Tshang and Ors. in favour of the ''Estate M.S. Sarkies, deceased in respect of the said portion of the said Sudder Street, premises.

In or about the end of March 1962 Mrs. M. Sarkies died. The Plaintiffs refused to accept rent for the month of March 1962. As a result of such refusal the Defendants started depositing the rent from the said month with the Rent Controller till the time hereinafter mentioned and thereafter with the Registrar of this Court to the credit of this suit.

On or about October 9, 1963, the Plaintiffs caused a combined notice of ejectment and notice of suit to be served upon the Defendants through their Solicitors M/s Fox and Mondal. The Plaintiffs alleged that they would require the said premises for their own use and occupation after building and rebuilding the same.

On June 17, 1964, the present suit was filed by the Plaintiffs. In the plaint the Plaintiffs mentioned the grounds of reasonable requirement of the said portion of the said premises as provided u/s 13, Sub-section (1), Clause (h) of the West Bengal Premises Tenancy Act, 1956, for their own use and occupation as also on the ground of default u/s 13, Sub-section (1), Clause (i) thereof.

The Defendants, inter alia, stated in their defence that the Plaintiffs'' case of reasonable requirement of the premises was an afterthought. The Defendants in short denied the reasonableness of the requirement of the Plaintiffs. The Defendants also denied that there was any default on their part. In any event, the Defendants asked for condonation of the default, if any and for extension of time to deposit all sums in Court under the West Bengal Premises Tenancy (Amendment) Act (IV of 1968). A further objection as to the jurisdiction of this Court to try and to entertain this suit was also taken in the written statement, relying on the provisions of Section 20 of the said West Bengal Premises Tenancy Act, 1956, read with the schedule thereto.

The Defendants made an application before this Court for an order for the deposit of rent, presumably to comply with the provision of Section 17, Sub-section (1) of the West Bengal Premises Tenancy Act, 1956. A consent order was passed thereon whereby without prejudice to the rights and contentions of the Plaintiffs that the default had already been committed by the Defendants, the Defendants were directed to deposit the sum of Rs. 700 per month, month by month and every month in Court.

In 1966, another application was made herein, but this time-by the Plaintiffs for an order that the defence of the Defendants be directed to be struck out under the provisions of Section 17, Sub-section (3) of the West Bengal Premises Tenancy Act, 1956. By an order dated August 2, 1966, A.N. Sen J. directed that the said application would stand to trial. In July 1968 when the suit was called on for hearing the application was moved for the Court''s consideration. The application was heard for three or four days wherein arguments were advanced on behalf of both the parties. Ultimately on or about July 2, 1968, the Learned Counsel for the Plaintiffs intimated that he would not press the same and accordingly, the said application was disposed of by recording the said concession and by making no order on the said application.

Thereafter, in course of hearing of this suit, the Defendants made another application for the condonation of the defaults, if there would be any and for the extension of the time to deposit the rent in Court under the provisions of the West Bengal Premises Tenancy (Amendment) Act (IV of 1968). I shall deal with the said application when I shall deal with the issue No. 2(a) relating to the question of default in payment of rent.

At the trial the following issues were settled:

(1) Is the premises in suit, fully described in the schedule annexed to the plaint, reasonably required by the Plaintiffs for the purpose of building and/or rebuilding and/or making thereto substantial additions and alterations and/or for their own occupation?

(2) (a) Has there been any default in payment of rent as alleged in para. 7 of the plaint?

(b) What is the effect of the orders passed by this Court on August 2, 1966 and July 2, 1968, in the Master''s Summons dated May 11, 1966?

(3) What sum, if any, are the Plaintiffs entitled to recover from the Defendants?

(4) Is the notice dated October 9, 1963, valid and sufficient?

(5) Has this Hon''ble Court the jurisdiction to entertain and try this suit?

(6) To what relief, if any, are the Plaintiffs entitled?

On behalf of the Plaintiffs it was contended that various elements were to be considered in determining the question of the-reasonableness of the requirements of the; Plaintiffs, viz. the purposes for which the premises would be required; the status of the Plaintiffs; the mode of their living in the past and their family custom and behaviour; their present condition of living; the number of family members and their requirements for the number of rooms.

Such elements would have to be considered in this case to find out whether the Plaintiffs reasonably required the said premises for their own use and occupation. The point would also have to be considered from two broader aspects--the first is, reasonableness of the requirement for their own use and occupation and the next is, reasonableness of the requirement for the building and rebuilding for such occupation by the Plaintiffs.

On the first aspect the evidence adduced on behalf of the Plaintiffs was as follows;

The Plaintiffs were related to each other. The Plaintiff No. 1 G. Sadu Tshang was the maternal uncle of the Plaintiff No. 5 Gyalpo. G. Sadu Tshang was the paternal uncle and uncle-in-law of Tobgyal and his wife Mrs. Pema Yudon, the Plaintiffs Nos. 3 and 2 respectively. Mrs. Dumpal Dorca, the Plaintiff No. 4, was the wife of G. Sadu Tshang. The Plaintiffs Nos. 6 and 7 were the minor sons of Pema Yudon and Tobgyal.

In course of the evidence the Plaintiffs described themselves as partners. All the three Plaintiffs, who gave evidence before me, stated that they were refugees and they had to leave Tibet and had to come over to India with intent to make India their permanent home. That was in 1959 and this was the main purpose for the purchase of the said Sudder Street premises, The whole family which except Gyalpo used to live jointly in Tibet was now spread all over India. Gyalpo was married in 1965. He had been an employee under the Dalai Lama Charitable Trusts. The nature of his business was such that he was to visit different places in Delhi, Dharamshala and Mussoori and on places in that area. He was posted in Calcutta under the said Trust. He lived in a small room with some other employees of the said Trust at No. 16 Allenby Court. His wife lived at Dharamshala with her parents. He had to visit Dharamshala off and on. It was not possible for him to afford to pay high rent in Calcutta and to get a separate flat for himself and his family because the work he was entrusted with for the Trust was in the nature of social service. The Trust dealt with, the rehabilitation of the refugees from Tibet and he was working in that sphere. Gyalpo had been one of the trustees of the said Dalai Lama Charitable Trust. In 1967, his daughter was one year old. Gyalpo had an unmarried sister who was prosecuting her studies in Mussoori and a brother who was prosecuting his studies in Germany. The reason why his sister was in the school in Mussoori was because she could go to school and live with the relatives there instead of being a boarder in the school which would be too costly. His brother left for Germany in 1961 and he was due to come back in the middle of December 1967. It appears that his brother did not come back from Germany even now.

As regards Pema and her husband Tobgyal and their two sons the evidence was that the husband Tobgyal was then sick. She wanted to bring him down to Calcutta and to have him treated here. They were then living in Kalimpong in their own house. At the date when she gave evidence, i.e. on April 24, 1968, her husband was suffering from ulcer. She intended to bring down her sons and to have them educated in Calcutta. The two sons were staying at Darjeeling in a residential school. The, elder was aged 14 and was reading in class VII and the younger was aged 12 and was reading in class VI.

As regards the family of Sadu Tshang, he had his wife, the Plaintiff No. 4, his brothers and their family. In Tibet he had 14 to 15 servants. They all had-since been living separately at different places and he intended to bring them down to Calcutta when accommodation would be available.

From the point of view of status it was contended that the Court should take into consideration the fact that this property had been purchased by spending a large sum to the extent of Rs. 3,35,001. The evidence had been that G. Sadu Tshang was one of the two top ranking business magnets in Tibet. The family was accustomed to live as of a joint family in a very big house in Tibet. Gyalpo being the sister''s son used to live separately.

The Plaintiff also intended to start a new business in Calcutta and that had been stated both by G. Sadu Tshang as also by Pema in course of their respective evidence.

As regards the number of rooms required by the Plaintiffs the evidence of Gyalpo was that he would require 7 or 8 rooms. In other words, two or three flats would be required for his purposes. Pema''s evidence was that she would require 10 rooms including bath and kitchen and G. Sadu Tshang''s requirement would be for 13 to 14 rooms including his requirement for his office purposes. He had to accommodate his nephew Rinchin and his family and there would be an altar-room for worship and for saying prayers which such room was necessary to be maintained in a Tibetan house.

It was contended on behalf of the Plaintiffs that this portion of the evidence stood uncontradicted and unchallenged and as such, I should accept the said testimony regarding the requirement of the number of rooms of the Plaintiffs.

According to the evidence of E.F. Smith, the Defendant No. 3 herein, altogether about 20 rooms were in the occupation of the said Fairlawn Hotel under the said tenancy.

Mr. Mitter, the learned Standing Counsel, drew my attention to the various decisions on the question of reasonable requirement and the elements constituting it. In the case of Basant Lal Saha Vs. P.C. Chakarvarty, P.B. Mukharji J., while constituting the West Bengal Premises Rent Control Act, 1948, which provided that the landlord''s requirement of the premises must be bona fide, observed:

Mere wish or convenience or whim or fancy of the landlord will not in my view be enough to show that the landlord requires the premises. The landlord must show certain circumstances or facts proving some need or some necessity for the landlord. At the same time the statute does not say that it must be an absolute need or an absolute requirement in the sense that the landlord will not have any accommodation of any description and that he must actually be in the streets before he can demand his own house for his own occupation.

It was also observed:

In my judgment the landlord is not bound to continue his residence at rented premises with all the uncertainties of that tenure.

Under the West Bengal Premises Tenancy Act, 1950, there was a provision to the effect that comparative advantage and disadvantage of both the landlord and the tenant were to be considered to find out the reasonable requirement of the landlord. In the 1948 Act there was no such provision. While dealing with the above case Supra, p. 25 P.B. Mukharji J. observed, inter alia, to the effect that in considering the question as to whether the landlord required the house for his own occupation, the hardship which might be caused to the tenant by granting the decree for possession, was not a proper or relevant consideration under the said Act. Mr. Mitter contended that I should also hold to the same effect in the present case, which is governed by the provisions of the West Bengal Premises Tenancy Act, 1956, wherein also such a provision, viz. comparative advantage and disadvantage of the parties was also absent.

Mr. Mitter then relied on the Division Bench judgment of this Court in the case of Krishna Das Nandy Vs. Bidhan Chandra Roy, and contended that this Court had gone so far as to say that in spite of the said special provision as indicated above under the 1950 Act, the Court should take into consideration the status of the Plaintiff, the nature of his work or avocation, the state of his health etc. in considering whether such requirement was reasonable or not. In that case the Court took into consideration the facts that the Plaintiff, who was the Chief Minister of West Bengal, was 74 years old and was occupying a dwelling house in Calcutta in a noisy and disturbing locality. The fact that he could not get his much needed rest in that house after the day''s strenuous work when he felt the necessity of removing himself from that residence to a quiet locality was also considered. The Court also found, that with that end in view the Plaintiff had, purchased the disputed premises in the Defendant''s occupation as tenant, for his residence in such quiet locality.

Mr. Mitter also referred to the case of Williamson v. Pallant L.R. (1924) 2 K.B. 173 and contended that the financial hardship of the Plaintiffs should be taken into consideration in the sense that the Plaintiffs were getting Rs. 700 Only for so many rooms whereas for only 4 rooms at Palace Court the Plaintiffs had to pay rent of Rs. 600 per month. The said English case was decided on the basis of the provisions of the then Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, as amended by Section 4 of the Rent and Mortgage Interest Restrictions Act, 1923, which provided similar provisions of comparative advantage and disadvantage of both the landlords and the tenants as was provided in West Bengal Act of 1950. In that case the County Court Judge did not take into consideration all the circumstances that might have affected the interests of both the landlord and the tenant and as such, the case was remanded to the County Court for reconsideration.

The case of Nevile v. Hardy L.R. (1921) 1 Ch. 404 had been cited in support of the contention that the fact that the landlord had been living elsewhere could not be any reason for holding that the dwelling house was not reasonably required by the landlord, as a residence, for him or for the persons in his whole-time employment. In that case it was held that under such circumstances the premises was reasonably required by the landlord. On the basis of the reasonings of the said judgment it was contended that even though there was an accommodation for the Plaintiff No. 1 and/or of the other Plaintiffs at premises No. 29 Palace Court that by itself could not stand in the way of the Plaintiffs'' requiring the said Sudder Street premises reasonably for their own occupation.

Mr. Mitter also cited before me the case of Puspalata Debi v. Dinesh Chandra Das 85 C.L.J. 74 in support of his proposition that the expression ''for own occupation'' might also include for the purpose of the Plaintiffs. Mr. Mitter also relied on the said case in support of his contention that an altar-room for worship should come within the purview of the expression ''reasonable requirement'' and such requirement should also be included within the meaning of the expression ''for own occupation'' of the Plaintiffs.

It was further contended that the reasonableness of the requirement was a question of fact and the same was to be determined at the date of the hearing of the suit. See Bulun Singh v. Ganendra Kumar Roy Chowdhury 84 C.L.J. 157 (165), Harcourt v. Lowe (1919) 35 T.L.R. 255 (256) and Neville v. Hardy L.R. (1921) 1 Ch. 404.

Reliance had also been placed on the case of Jeeban Jamini Debi and Ors. v. Banku Behari Guin 65 C.W.N. 799 for the proposition that the landlord could not be asked to keep his family at two places simply because the two places were quite close to each other. Mr. Mitter contended that all the Plaintiffs had intended to come and stay together in Calcutta at one place. They might have, had separate residential houses of their own at Kalimpong. They might have had place to stay at Bhopal. They might have had an accommodation at 29 Palace Court but yet the landlords had always the right to stay in one place of their choice if they would so desire. The Court would of course have to be satisfied that their requirement was reasonable. According to him the comparative advantage and disadvantage of the landlords and the tenants were no longer relevant matters of consideration under the provision of the present Act of 1956 although the same were so under the Act of 1950.

It was also argued that the requirement of some o� the landlords should be considered as requirement of all the landlords. See Kanika Devi and Ors. v. Amarendra Nath Roy Chowdhury and Ors. 65 C.W.N. 1078 (1081).

The next case that had been cited by Mr. Mitter was the case of Iswar Singh Kripal Singh and Company v. Kiron Chandra Roy 69 C.W.N. 232 where the Court considered a case where a couple with two unmarried daughters and a daughter-in-law, while residing in a three bed-room tenanted flat, wanted an extra drawing room for their use which they contended was not available in the tenanted premises in their occupation. It was held that it was a reasonable requirement of the said couple and the members of the said family and a decree for ejectment was affirmed. In another case of Anil Chandra Dutta v. Niranjan Sarkar 59 C.W.N. 989 (990) the question of reasonable requirement of the landlord came to be considered and it was found that it was so required for the sister''s son who on holidays used to come and stay with the landlord and under such circumstances the Court found that an extra room was reasonably required for the landlord.

In the case of Sati Prasanna Mukherjee v. Md. Fazal 86 C.L.J. 12 the Court considered a case where the purpose of educating the children in Calcutta was held to be a good ground for reasonable requirement of the house and on that basis a decree for ejectment was passed.

Mr. Mitter cited all the above cases for the purpose of showing that similar circumstances existed in this case as well and the Court should pass a decree for ejectment on the ground of reasonable requirement of the Sudder Street premises for the occupation of the Plaintiffs.

The next branch of the argument on this issue was on building and re-building. Gyalpo in his oral evidence had stated that the Plaintiffs intended to demolish the existing building and intended to construct a three-storeyed building. Pema Yudon had stated that, if possible, the Plaintiffs would re-build the existing premises. She then stated that all the Plaintiffs agreed that they would possibly re-build the house. Then she stated that the Plaintiffs wanted to stay in the existing house and then to re-build the house when necessary. There is a gradual improvement of the story. Then Sadu Tshang in his evidence said that, if possible/the Plaintiffs would make alterations. He also stated that if possession would be obtained then he would occupy the premises as it was and later on would build or re-build.

As to the resources to construct the new building Gyalpo said that the Plaintiffs had sufficient funds. Gyalpo could himself give a sum of Rupees one lakh. Pema said that rebuilding cost would be shared. She could pay her share of 1/6th for re-building. Her money was with Sadu Tshang. Sadu Tshang stated before me that at the date of the hearing of the suit quite a large sum was available to satisfy the Court that he was in a position to build or rebuild) The United Commercial Bank Ltd. was agreeable to advance a large sum to the extent of Rs. 2 lakhs (Ex. C) on the mortgage of the said premises. He had produced a letter to that effect. He also brought several certificates from the State Bank of India, United Commercial Bank and from Hongkong and Shanghai Banking Corporation as also from Central Bank of India to show that he had several sums which had been kept with the said banks in fixed deposit accounts. Moreover, a sum of Rs. 19,600 had been lying with the Rent. Controller as money deposited by the Defendants. The said sum would be available to him when a decree would be passed. Furthermore, the sum of Rs. 37,000 being the sum equivalent to the rent upto February 1969 had been deposited in Court by the Defendants and the said sum also would be available to him immediately.

As regards the plan Mr. Mitter contended that a plan was submitted to the Corporation of Calcutta but the same was rejected. It was true that the plan was not produced in this proceeding. The same was sought to be proved, but since there was objection op the part of the Defendants the same could not be proved. Mr. Mitter contended that his clients need not have satisfied the Court about the requirement for building and re-building. If the Court was satisfied that the building was reasonably required for the occupation of the Plaintiffs that alone would be sufficient for his clients to obtain a decree from this Court. In support of the said proposition reliance was placed on the aforementioned case of Krishna Das Nundy v. Bidhan Chandra Roy Supra, p. 188.

The learned Advocate-General Mr. RC. Deb did not raise any dispute as to the principles laid down in the case cited by Mr. Mitter on this issue. His main attack was on the question of reasonableness of the requirement of the Plaintiffs herein. According to him the Plaintiffs'' case of requirement was neither reasonable nor a genuine one.

There was no evidence that the Plaintiffs had ever lived jointly in Calcutta at any point of time. The Plaintiffs had different occupations and as such, they had to live separately. He attacked the Plaintiffs case from various aspects.

The main part of the notice to quit on this point provided:

The said premises are reasonably required by our clients for the purpose of building, re-building or for making thereto substantial additions or alterations and/or for their own use and occupation. Our clients are desirous of obtaining the vacant possession of the said premises on inter alia the grounds mentioned in West Bengal Premises Tenancy Act, 1956.

This notice to quit was dated October 9, 1963. As stated above, the Plaintiffs became the owners by purchase of the said premises on January 19, 1962. The Plaintiffs stopped accepting any rent since March 1962. Taking all things together it was contended that the case of reasonable requirement by the Plaintiffs was an after-thought.

It was further contended that the requirement of the Plaintiffs in respect of the existing building could not be satisfied without the demolition of the existing building. This was the original case that was sought to be made out. Thereafter, there had been improvements and a different case was sought to be made out as soon as it Was found out that the case of demolition could not be established. It transpired in cross-examination that there were various other tenants in the said premises on whom the notices to quit were not served and unless they would be evicted the Plaintiff''s case of demolition of the existing building could not stand. Accordingly, the Plaintiffs wanted to make out a new case of reasonable requirement.

Even in 1967 when such evidence was taken de bene esse of one of the witnesses herein no step whatsoever was taken to serve any notice to quit on any of the tenants occupying the said premises. The Plaintiffs'' first witness Gyalpo (Plaintiff No. 5) stated that the Plaintiffs intended to demolish the existing building and thereafter they hoped to occupy the same. According to him, in August 1967 a plan was submitted. That he stated on September 4, 1967, when his evidence was taken. The suit was filed on June 17, 1964, yet no attempt was made to submit any plan at any earlier point of time. In any event, it was stated that the said plan was not accepted. No attempt was made to prove the same through the other witnesses. It was not known as to what the said plan was about and what it did consist of. It was suggested by the witness that the charge made by the engineer in Calcutta was exorbitant and that was why the plan was prepared through an engineer from Bhopal and the same was submitted, but the Corporation of Calcutta refused to grant sanction thereon. It appears that no attempt was made to cause the records of the Corporation of Calcutta to prove that such a plan was submitted and the same was refused. A faint attempt was made to tender the same in evidence, but ultimately the Plaintiffs did not choose to make use of the same. Accordingly, it is difficult to rely on such a statement. It appears from the power of attorney granted by the Plaintiffs in favour of the Plaintiff No. 1 that the Plaintiff No. 1 was empowered to demolish the said existing building as far back as in 1964. In spite thereto no attempt was made to evict the other tenants. Accordingly, it was in my view rightly contended that the Plaintiffs'' case of reasonable requirement should be disbelieved.

It transpired from the evidence of the witness called on behalf of the Plaintiffs that each one of them had a house in Kalimpong and they lived separately there.

The Plaintiffs'' next witness was Pema Yudon. She gave evidence on April 24, 1968. She stated that she needed about 10 rooms. According to her, Sadu Tshang intended to start a new business in Calcutta although no business was fill then carried on in Calcutta Her husband was unwell and she wanted to bring him in Calcutta and have him treated here. Her sons were being educated in Darjeeling. She wanted to bring them down in Calcutta and get them admitted in a Calcutta school. According to her, the Plaintiffs wanted to stay in the said premises in accordance with the Tibetan ways of life and consequently the said premises in its present position would not be suitable for them to live in. She admitted that her husband had no business interest which would require his presence in Calcutta. They derived their only income from the paper mill at Bhopal.

The Plaintiff No. 1 Sadu Tshang stated on April 24, 1968, that the only interest they had was in the paper mill at Bhopal. He was looking forward to get some opportunities to start a new business in Calcutta. From his evidence it transpired that he had been realising rents from the other tenants of the said premises upto that date. He stated that out of necessity they would have to adjust themselves in the said premises, as it was, without demolishing or building or re-building the same. After the said premises would come to their possession they would then build or re-build. Sadu Tshang had no children. His two other brothers were unmarried. He did not submit any plan for alterations of the said premises at that time.

On the point of financial ability to build or re-build although the evidence adduced was scrappy and father meagre, yet I am satisfied that the Plaintiffs would be in a position to raise the required money on mortgage of the said property. Moreover a large sum is lying deposited with the Rent Controller and with this Court and the said sums would also be available to the Plaintiffs. But it is not the ability to spend which is the only factor material herein to be considered in this case but the manner of procuring the evidence which affected the question of reasonableness of the requirement of the Plaintiffs in respect of the said premises.

It was contended that the Plaintiffs had been procuring documents just prior to the date when they gave their evidence and that would show that the Plaintiffs had been trying to create evidence to establish their case. It would be significant here to state the dates when the three Plaintiffs were examined to show how and what documents were made available round about such dates. Gyalpo''s evidence was over on September 4, 1967. A letter was obtained on or about October 26, 1967, from the State Bank of India (Ex. 2) about the raising of the loan. On April 24, 1968, Pema Yudon was examined and on April 25, 1968, Sadu Tshang was examined. It would appear that on January 13; 1968, a certificate was obtained to show that the Plaintiffs could obtain loans. The other certificates in connection with the loans were dated April 2, 1968, April 4, 1968 and March 20, 1968. In my opinion, the Plaintiffs might have the capacity to build or re-build, but the attitude of the Plaintiffs in procuring the said evidence would show that the Plaintiffs requirement for the said premises was not at all reasonable or genuine. It was further suggested that if the Plaintiffs had intended to purchase the said premises for the purpose of their own occupation then the Plaintiffs would not have accepted the rents for the broken period of January and for the month of February 1962. Again, if the Plaintiffs had intended to purchase the said premises for the purpose of their own use and occupation then would the Plaintiffs have waited till about October 9, 1963, when they served the notice to quit? If the Plaintiffs had the reasonable requirement of the said premises for their own use and occupation would they have filed a suit so long after the notice to quit, i.e. in the month of June 1964. In short, from January 1962 the Plaintiffs waited without any rhyme or reason till June 1964 to evince their intention that they reasonably required the said premises for their own use and occupation.

The cases cited by Mr. Mitter on this issue decided the principles laid down therein on the basis of genuine facts. In the present case before me the witnesses have. Tittered words which no doubt fit in with the language of the said decided cases, but that would not by itself be helpful to the Plaintiffs unless the Plaintiffs case for reasonable requirement would be a genuine and true one.

Sadu Tshang and his wife had no children. While in Tibet he used to engage 13/15 muleteers who used to look after the large number of his mules. When the notice to quit was served Gyalpo was not married. He had his place of residence in Calcutta. His headquarter was in Calcutta. He had his own house at Kalimpong. He had frankly stated that the suit premises would not be suitable one for his residence without building and re-building. Pema Yudon had her sick husband who lived in Kalimpong and two children lived in Darjeeling in a residential school. As stated above, Sadu Tshang and his wife had no children. Their two brothers were still unmarried. He wanted 13/14 rooms in the house.

It is quite apparent that considering the locality and the position of the premises and the number of rooms therein the rent realised from the tenants to the extent of Rs. 700 per month was quite low and that had been their motive to file this suit in order to get rid of this tenant so that the property could fetch much more than what it had been fetching now. [Sadu Tshang, Q. 298]

The story that Sadu Tshang and Pema Yudon wanted to start a new business in Calcutta did not appear to me to be a genuine intention on their part. No businessman would wait for a house of his own at Calcutta to start a business and specially when accommodation had already been there at the Palace Court. The evidence was that as yet no business had been started at Calcutta.

I have considered the question of the Plaintiffs'' reasonable requirement of the said premises very carefully by taking into account the conduct of the Plaintiffs at various stages. From the date of the purchase of the said premises by the Plaintiffs till the death of Mrs. Sarkies on March 28, 1982, the Plaintiffs never expressed their intention that they required the premises for their own use and occupation or that they intended to build or re-build thereon. During that period rent was accepted. B.K. Chowdhury, on behalf of the Plaintiffs, came to the Fairlawn Hotel and collected the amount due on account of rent by submitting rent bills.

The next stage came when Mrs. Sarkies died. Assuming that the Plaintiffs did not make up their minds to reside in the said premises till the end of March 1962, it must be that they would make up their minds to eject the Defendants from the said premises inasmuch as they instructed Chowdhury not to accept rent any further. By their letter dated May 10, 1962, they intimated that they would require the said premises for their own use and occupation after additions and alterations would be effected thereon. This was the first time that the Plaintiffs expressed their intention to that effect. This intention was expressed only after the tenants by writing requested them to accept rent which the Plaintiffs failed to collect. In spite of the said intention being expressed the Plaintiffs kept silent over the matter and allowed the Defendants to deposit rent with the Rent Controller month by month and every month. It was only in October 1963 that the Plaintiffs through their Solicitors Messrs. Fox and Mondal thought of sending a notice to quit by their letter dated October 9, 1963. In between May 10, 1962 and October 9, 1963, no step whatsoever was taken on behalf of the Plaintiffs to recover possession of the said premises. Accordingly, it would appear that the requirement of the Plaintiffs for the said premises was not genuine on May 10, 1962.

The Plaintiffs were supposed to have become definite in their intention to occupy the said premises in October 1963. But the language of the notice to quit would suggest that in spite of the fact that the Plaintiffs intended to occupy the said premises themselves, yet they were not definite in their minds as to whether they would require the premises as it was viz. without building or rebuilding or whether they should build or re-build and then would occupy the said premises. It appears that the ground of reasonable requirement in the said notice was stated by putting the language of the section of the West Bengal Premises Tenancy Act, 1956. In fact, all the grounds provided therein were relied on. Of course, there could be no harm in doing that, but I am considering the point from the point of view of genuineness.

The next stage to be considered was between the notice to quit and the filing of the suit. The notice to quit was served only on the Defendants and not on the various other tenants who had been occupying the said premises. They were also to be evicted from the said premises so that the premises could be built or rebuilt. A Power of Attorney was executed in favour of G. Sadu Tshang by the other Plaintiffs. By the said power G. Sadu Tshang was empowered to demolish the existing building. If the Plaintiffs decided in 1964 that the building was to be demolished and a new building was to be constructed in its place then the Plaintiffs were bound to evict the other tenants so that such new construction could be had at the site. Chowdhury admitted that no such notice was ever served on behalf of the Plaintiffs. Accordingly, the Power of Attorney could not be a genuine document in the sense that it was executed with intent to strengthen the hands of G. Sadu Tshang to file a suit for ejectment of the Defendants and to use it as a piece of evidence in such ejectment suit.

In 1964 the suit was filed. It took the Plaintiffs about two years to make a definite attempt to evict the Defendants. In my opinion, the conduct of the Plaintiffs prior to the filing of the suit would definitely go to show that the Plaintiffs case of reasonable requirement was not a, genuine one. True it is, by the reported decisions as indicated above, it was held that the material point of time when the requirement of the Plaintiffs should be considered was the date of hearing of the suit, yet on the question of belief or disbelief and on the question of a case being a genuine or mala fide one, all these conduct of the Plaintiffs would no doubt be relevant for the Court''s consideration. By the decision in Nevile v. Hardy Supra it was no doubt held that the relevant time when the requirement of the Plaintiffs would be considered was the date of the hearing of the suit, yet it did not suggest that at the; date of the notice to quit or at the date of the filing of the suit the question of the Plaintiffs'' reasonable requirement could have been nonexistent. In my opinion, on a correct reading of the said judgment it would appear that the effect of the judgment was that there might have been reasonable requirement at the date of the notice and at the date of the suit, but such reasonable requirement must be existent at the date of the hearing of the suit, otherwise the Plaintiffs would not be entitled to a decree for possession.

The next stage to be considered was the period from the date of the suit till the date of the hearing. I have already discussed that from time to time documents had been obtained from several banks to create some evidence about the Plaintiffs'' ability to spend for building and re-building. Even in doing so, the Plaintiffs did not prove their bona fide intention. A plan was sought to be proved in such a manner that it was bound to be objected to by the other side and taking advantage of that, it was never brought to light nor any attempt was made to have the same proved. The evidence of the witnesses relating to the reasonable requirement for their use and occupation and for building and re-building no doubt would fit in with the various decided cases on that point, but such evidence was hardly acceptable. The business proposition of Sadu Tshang in Calcutta could hardly have any basis. I have already stated my reasons for disbelieving the same. The process of thinking for some new business in Calcutta after getting the premises in suit could hardly be appreciated and is not acceptable. No businessman would think in that manner not to speak of a business magnate like G. Sadu Tshang. None of the Plaintiffs ever lived permanently in Calcutta even though there was a place to live in. Pema''s evidence that she wanted to bring down her ailing husband for treatment and to have him treated in Calcutta did not appear to me to have any basis. The evidence that the Plaintiffs would lead Tibetan way of life in the premises at Madge Lane did not appeal to me at all. The idea that each branch would have a separate altar-room and a separate kitchen would suggest that the theory of joint family in Tibet had been given a go-by after having lived in separate establishments for all these years in India. It appeared to me and the evidence would also suggest that the said premises at Sudder Street was purchased for investment purpose.

I am not at all satisfied that the Plaintiffs'' requirement of the said premises was either reasonable or genuine or that it was for their own use and occupation or for the purpose of building or re-building as stated by them. The plea of reasonable requirement was and is nothing but a ruse to get rid of the Plaintiffs existing tenants being the Defendants in this suit: Monoharlal Mehta and Others Vs. Raj Mohan Pandey and Others, . Accordingly, I decide this issue by answering the same in the negative.

Issue No. 2(a): The admitted position is that on January 19, 1962, the Plaintiffs became the owners of the premises in suit. Mrs. Rule Sarkies was then the tenant of the said premises and she was representing the estate of M.S. Sarkies deceased. She duly attorned her tenancy to the Plaintiffs. She paid rent from January 19 till January 31. The receipt was granted to her by the Plaintiffs'' agent B.K. Chowdhury. The receipt was dated February 14, 1962. The rent for the month of February was accepted on behalf of the Plaintiffs by the same B.K. Chowdhury who granted a receipt in March 1962 in the name of G. Sadu Tshang and others. Thereafter, on March 28, 1962, Mrs. R. Sarkies died leaving her Will and appointing her son-in-law as the sole executor.

According to the Defendants, on or about April 9 and 10, 1962, one of the employees of the Defendants by the name of AH Baba Azam tried to contact the said B.K. Chowdhury on phone and when he failed in his attempt he went to the premises at Kyd Street where B.K. Chowdhury was available. One. S.M. Johannes, the manager of the said hotel, accompanied Ali and went to the Kyd Street premises. A sum of Rs. 700 was tendered as rent for the month of March 1962 but B.K. Chowdhury refused to accept the same. Ali was the receptionist in the said Fairlawn Hotel. He knew B.K. Chowdhury from Before. He had the knowledge that the rents for the part of January and for February 1962 were duly paid to and accepted by B.K. Chowdhury.

Under the provisions of the West Bengal Premises Tenancy Act, 1956, the Defendants would have to satisfy the Court that before the rent for the month of March was deposited with the Rent Controller, it was validly tendered to and refused by or on behalf of the landlords. In other words, the question whether Ali and the said Johannes had been to B.K. Chowdhury on April 12 with the sum of Rs. 700 for tendering the same as rent for the month of March 1962 has to be determined. The correspondence and documents would reveal that the Defendants sent the sum of Rs. 700 to the Plaintiffs by postal money order on April 18, 1962, which was late by three days. The money order was refused on May 3, 1962. The Defendants received back the same on May 8, 1962. On May 9, 1962, the money was deposited with M/s Orr Dignam and Company, Solicitors for the Defendants, with instructions to have the same deposited with the Rent Controller, Calcutta. It appeared that the rent for March had been deposited with the Rent Controller on June 1, 1962, which again was beyond the statutory period.

From the documents on record it would appear that on May 6, 1962, E.F. Smith, the executor, wrote to B.K. Chowdhury the material portion whereof was as follows:

I understand that you have refused to accept rent for the above premises for March 1962, despite the amount having been remitted by money order dated 18th April 1962, a previous request for you to bring the receipt for payment, as was the established custom, having been ignored.

From this letter it does not appear that anybody on behalf of the Defendants did have any occasion to tender the money at the Kyd Street premises as deposed by Ali. On the contrary, the above passage in the said letter would suggest that B.K. Chowdhury was requested to bring the receipt and to collect the rent for March 1962. E.F. Smith, the executor, gave evidence before me and according to him, he was away from Calcutta at that time and as such, when he wrote the letter dated May 6, 1962, he was not aware of the fact that Ali had been there to tender the money and as such, he did not mention anything about the same in the said letter.

From the letter dated May 9, 1962, written by M/s Orr Dignam and Company to B.K. Chowdhury, it would appear that Mr. and Mrs. E.F. Smith had been to the said Solicitors office on that day. By the said letter dated May 9, 1962, a sum of Rs. 1400 was sent in cash in payment of the rent for the months of March and April 1962. Nothing had been mentioned about the rent for March being tendered to B.K. Chowdhury by Ali at Kyd Street or at all. By letter dated May 10, 1962, Messrs Fox and Mondal on behalf of the Plaintiffs wrote to E.F. Smith denying the allegations contained in his letter dated May 6, 1962. On May 11, 1962, Chowdhury also wrote a similar letter denying generally the allegations made in the letter dated May 6, 1962, written by Smith.

The correspondence, in my opinion, would not in any way establish the fact of tender of rent to B.K. Chowdhury for the month of March 1962.

The Defendants called another witness by the name of Johannes who after retiring from the Railways joined Fairlawn Hotel as manager sometime in March 1962. He was there for two years. His evidence was that he took the rent from the till of the hotel and went to Palace Court at Kyd Street to pay the rent to Chowdhury. He tendered the money to Chowdhury, but Chowdhury refused to accept the same. He came back and sent the money by money order on April 18, 1962, in respect of the rent for the month of March 1962. The money order was not accepted by Chowdhury and as such, the word ''refused'' appeared in the postal money order receipt which he got back on May 8, 1962. The witness produced, a personal book of account which he maintained for his own, use while he was the manager of the said hotel. There wag no entry in the said personal book showing that the sum of Rs. 700 was withdrawn from the till on April 12, 1962, but according to the witness, such entry would not find any place in the personal book because the same was not utilised and the same was put back in the till. The sum of Rs. 700 which was sent by money order on April 18, 1962, appeared as an entry in the said personal book. This witness appeared to me to be truthful and I had no reason to disbelieve him on this point and on the point that he had been to Chowdhury and tendered the rent for March 1962.

Ali''s evidence had been that under instruction received from Johannes, he paid rent for the broken period of January and also for the month of February 1962 to Chowdhury. He identified his signatures on the two rent receipts for the said two months. His evidence was not convincing. According to him, Johannes was the manager of the hotel even in February 1962. His evidence had been that he took Johannes with him on April 12, 1962, to show him the place where Chowdhury used to live. According to him, the two together went to Kyd Street premises at about 5 p.m. on April 12, 1962.

The evidence of Johannes had been that after retirement from the Railway service he had joined the Fairlawn Hotel on March 24, 1962, as the manager thereof under Mrs. Sarkies. He was in the employment of the said hotel upto March 31, 1964. The evidence of Johannes had been that in respect of the month of. March 1962 he looked to the records and enquired of Ali about the payment of rent and ascertained that Chowdhury was to come and collect the rents. When he found that the time to pay the rent had passed yet Chowdhury did not come, he went personally along with Ali to contact Chowdhury at the Palace Court at Kyd Street. He did not know the Plaintiffs'' office at Kyd Street and as such, he asked Ali to show him the place. Ali''s definite evidence was that on April 12, 1962, he went with the money to tender the same to Chowdhury whereas in Q. 17 Johannes stated that he went to the Palace Court during the third week of March 1962. Obviously this was not a correct answer given by Johannes. Thereafter, he corrected himself in Q. 19 where he stated that the refusal by Chowdhury was made in April 1962. In cross-examination to Qs. Nos. 73 to 80 he stated that he went with the money in about the second week of April 1962. It was in the morning. He was not definite which date it was. When it was suggested whether he went there in the third week of April 1962 he was not definite about the date. In Q. 78. Ali made a contradictory statement when he said that he took Johannes to Palace Court at Kyd Street at about 4 or 5 o''clock in the afternoon.

As stated above, it is difficult to place much reliance on the testimony of Ali who, it appeared to me, did not remember the incidents correctly. He even tried to suggest that he went to the Palace Court in the morning on April 12, 1962, alone. In Qs. 94 and 95 Ali said that he asked Chowdhury to accept rent for the month of March 1962, but he refused. He then brought back the amount and again went to Palace Court with Johannes to show him the place and in his presence the money was again refused by Chowdhury.

On the question of tender of rent for the month of March 1962 Chowdhury stated in his evidence that it was not received by him. In Q. 232 he denied that Ali went to him and tendered the rent for the month of March 1962. In Q. 244 when it was suggested to him that Johannes went to him in April 1962 and tendered the rent and Chowdhury refused to accept the same, Chowdhury denied that he knew anybody by the name of Johannes. This was obviously an untrue statement made by Chowdhury. To suggest that the manager of the Plaintiffs did not know the manager of the tenants was too much to believe.

There is evidence on record that the rent for March 1962 was sent by postal money order on April 18, 1962 and the same came back to the post office on May 8, 1962, after refusal on the part of the Plaintiffs. The money order receipt and the postal marks thereof containing the dates are evidence of tender.

The aforesaid tender by postal money order was not disputed either by Sadu Tshang or by any of the Plaintiffs. In answer to Q. 284 Chowdhury stated that Sadu Tshang knew all about the tender. If that, was the position it is not understood why Sadu Tshang did not deny the fact of tender as on April 12, 1962, or after April 18, 1962.

Moreover, in the petition before the Rent Controller it was stated that Ali tendered the rent for March 1962 on April 12, 1962. The petition before the Rent Controller was a part of Ex. 8. The fact of tender was not specifically denied in the affidavit used on behalf of the Plaintiff.

The learned Advocate-General contended that the landlords definitely expressed their intention through Chowdhury not to accept rent in any event. At least on two occasions the landlords made it clear that they were not going to accept rent in any event. It is in evidence before me that after February 1962 no rent bill was prepared nor sent to the tenant. According to Johannes the land lords had instructed Chowdhury not to accept rent. When Chowdhury was asked about it in Q. 193 he stated that rent was not accepted because the Plaintiffs wanted to occupy the premises themselves. In Qs. 184 to 186 Chowdhury admitted that the fact of tender of the rent for the month of March 1962 as mentioned in the letter dated May 6, 1962, was not denied in his letter dated May 11, 1962, because that fact was correct.

Considering the evidence as a whole on this point, I am inclined to believe that the rent for the month of March 1962 was tendered on April 12, 1962, by Johannes in the company, of Ali. The impression I got about Ali was that he was over-smart and very quick in his answers with the result that often he gave reckless and incoherent answers. He could not utter the sentence fully and whenever he would find difficulty in respect of answers he would be quick enough to give some sort of explanation with the result that his answers would lose consistency. Accordingly, I do not rely on the evidence of Ali though I got the impression that on the whole he wanted to speak the truth. Johannes is a very old man and his evidence has to be weighed keeping that fact in mind. He was a truthful witness and I was much impressed about his demeanour in the witness-box. He did not try to hide anything from the Court.

Under those circumstances, I hold that the rent for the month of March 1962 was duly tendered on April 12, 1962.

In respect of the tender of rent for the month of April 1962 the documentary evidence was the letter dated May 6, 1962, written by the said executor to Chowdhury. It was stated therein that Johannes would bring that letter to Chowdhury on Monday, May 7, 1962, together with the cash to cover the rent for April 1962 and he would be accompanied by Mrs. Smith. Johannes was shown this letter but his definite recollection was that even though it was written there that Johannes would go with the money yet Johannes did not actually go. Mrs. Smith stated in her evidence that she personally went with the money on May 7, 1962. She met Chowdhury, tendered the money, but Chowdhury refused to accept the rent and the letter. Then she came back. Her evidence had been that she went to the office of Chowdhury several times before. In Q. 116 Ali stated that the representative of the Solicitors M/s Orr Dignam and Company called at Fairlawn Hotel and AH took him to the Palace Court to identify Chowdhury and the place. A sum of Rs. 1,400 was taken by them to Chowdhury. It appears that on May 11, 1962, Chowdhury replied to the letter dated May 6, 1962, but did not deal with the letter dated May 10, 1962, written by M/s Orr Dignam and Company addressed to Chowdhury.

From the aforesaid evidence on record my finding is that the amount of rent payable for the month of April 1962 was duly tendered on May 7, 1962. The result of my finding is that as regards the month of March and April 1962 there was tender of rent.

Now the question to be decided is--whether the deposits in respect of those two months were made within time, i.e., within the time as provided by the West Bengal Premises Tenancy Act, 1956. According to the provisions of the said Act the deposit for March should have been made within April 30, 1962 and the deposit for the month of April should have been made within May 31, 1962, respectively. It appears that the deposit for March was made on June 1, 1962 and the deposit for April was made on June 4, 1962 and as such, both those deposits were out of time. It further appears that the deposits for the subsequent months were made within time with the Rent Controller, Calcutta. Accordingly, I proceed on the basis and my finding is that in respect of the said two months of March and April 1962 the deposits were invalid. In fact, the learned Advocate-General did not raise any dispute about such irregular or invalid deposits for those two months.

The Learned Counsel for the Plaintiffs urged that the defaults in respect of the said two months constituted a default within the meaning of Section 17, Sub-section (1) of the West Bengal Premises Tenancy Act, 1956. Under the provisions of Section 17, Sub-section (1) of the said Act of 1956 the tenant was bound to deposit in Court or pay to the landlord or deposit with the Rent Controller all sums which were due on account of default in payment of arrears of rent within the time and with such interest as provided therein. This was admittedly not done in respect of the $aid two months. Accordingly, it is quite obvious that the provision of Section 17, Sub-section (1) of the said Act of 1956 was not complied with by the tenants. The effect of non-compliance with Section 17, Sub-section (1) of the said Act was that the provisions of Section 17, Sub-section (3) of the said Act would be attracted. In case of such non-compliance the defence was bound to be struck out as regards delivery-of possession and the suit had to be proceeded with ex parte to that extent, i.e., as of an undefended suit and as regards other prayers the suit could be defended as of a defended suit.

The suit herein was filed on June 17, 1964. The writ of summons was served on the Defendants on July 16, 1964. On July 17, 1964, appearance was entered in this suit on behalf of the Defendants. On July 30, 1964, an application was taken out on behalf of the Defendants for deposit of amounts which were equivalent to rent u/s 17, Sub-section (1) of the West Bengal Premises Tenancy Act, 1956. On August 11, 1964, by consent of the parties the following order was made by A.K. Mukherjea, J. in the said application. By consent there will be an order in terms of Clause (a) of the summons. This order is made without prejudice to the rights'' and contentions of the parties and in particular the contention of the Plaintiffs that there is no valid deposit of rent in Court and that the Defendants are defaulters. The Petitioners do not admit the allegations in the affidavit-in-opposition. The Registrar to act on the signed copy of the minutes. Costs costs in the cause. Certified for counsel.

On behalf of the Plaintiffs several points were urged. I shall only indicate the said points without dealing with the same in details because I consider that the same need not be dealt with in details in view of my findings which would appear hereinafter.

(a) It was firstly urged that no interest was proved in the said consent order although it was incumbent on the part of the Defendants to pay such interest u/s 17, Sub-section (1) of the Act of 1956.

(b) The deposits made with the Rent Controller by the Defendants before filing of the suit did not come within the language of Section 17, Sub-section (1) of the said Act, because under the said provision the deposits or payments had to be made within one month from the date of the service of the writ of summons, i.e., the deposits with the Rent Controller if already made would not constitute such deposits. It contemplated that even if such deposits were made with the Rent Controller the same would have to be made over again after the filing of the suit. The amendment whereby deposits could be made with the Rent Controller came into effect in the year 1965 whereas the consent order was made in 1964. The deposits made before the summons was served could not be included within the meaning of Section 1, Sub-section (1) of the said Act of 1956.

(c) There was no fresh act of tender in respect of the deposits for any of the months except for the month of April 1962. Accordingly, the subsequent deposits with the Rent Controller would not be held to be valid deposits within the meaning of the provision of the said Act of 1956, It was contended on behalf of the Defendants that on this point there were conflicting views of this Court as to whether in respect of each subsequent deposit there should be tender every time preceding such deposits. It is not necessary for me to go into the said question. The admitted position in this case is that there was no fresh act of tender preceding any such deposits with the Rent Controller.

(d) The application was made for leave to deposit the rents for the months of July 1964 onwards, i.e., for the current and the future months and not for the months preceding thereto.

(e) The consent order was made without prejudice to the rights of the respective parties and accordingly, these points were left open to be taken up by the Plaintiffs if occasion would arise.

In my opinion, it is not obligatory on the part of the tenant to make any application u/s 17, Sub-section (1) of the West Bengal Premises Tenancy Act, 1956. All that is required under the said provision is that the tenant would have to pay the amounts to the landlord or to deposit the same with the Court or with the Rent Controller. It might be that in depositing any amount with the Court or with the Rent Controller it would be necessary to make an application. In any event, in respect of payment to the landlord no application is required to be made. If the landlord would accept such payment a receipt to that effect would be sufficient compliance with the provision of Section 17, Sub-section (1) of he said Act of 1956. The emphasis is not on the making of an application within time but on the payment as provided therein within one month of the service of the writ of summons. The making of an application for the purpose of deposit of such amount under the said provision is a procedural matter which might be necessary to be followed in accordance with the procedure laid down by the rules of the respective Courts where such money was to be deposited.

The result is that whether or not there was a consent order for deposit of such amount the provisions of Section 17, Sub-section (1) of the said Act of 1956 have got to be complied with.

The learned Advocate-General then contended that the deposit of the rent with the Rent Controller in respect of the rent for the months of March and April 1962 might have been made beyond the period when the same should have been deposited, yet the irregularities, if any, in the matter of such deposits might be waived by the landlords and on the facts of this case I should hold that such irregularities, if any, were actually waived by the Plaintiffs According to him, Section 21 of the West Bengal Premises Tenancy Act, 1956, created a right in favour of the landlords and as such, the landlord could by necessary implication give it up.

As to whether every deposit with the Rent Controller must be preceded by tender every time and refusal on the part of the landlords, had been dealt with in the case of Shree Nursing Timber Works and Another Vs. Sm. Amala Bala Dassi, following an earlier Division Bench judgment in the case of Ganesh Ch. Nandy v. J.N. Chatterjee and Bros. (1966) 70 C.W.N. 676 .

The learned Advocate-General also referred to another Division Bench judgment in the case of Satya Chorone Roquittee v. Suresh Chandra Pal and Ors. (1961) 65 C.W.N. 1239 which construed another Division Bench case of Ballabhadas Agarwal Private Ltd. v. Dalhousie Properties Ltd. (1961) 65 C.W.N. 1021 wherein it was observed that one valid tender was sufficient for the purpose of finding as indicated hereinafter.

On or about October, 25, 1965, the Plaintiffs made another application for striking out the defence in respect of the delivery of possession. On the basis of the past defaults committed by the Defendants it was urged that the said consent order did not stand in the way of this application u/s 17, Sub-section (3) of the said Act because the said consent order was made without prejudice to the rights and contentions of the parties. The application for striking out the defence was heard by A.N. Sen J. and an order was made on August 2, 1966, to the effect that the application would stand over till the hearing of the suit. When the suit came up for hearing in 1966 the application was moved-and it wag heard from time to time on four days and on the fourth day, i.e. on July 2, 1968, Learned Counsel appearing for the Plaintiffs submitted that he did not press the application and accordingly, the Court made no order on the said application.

The learned Advocate-General strongly urged before me that the Plaintiffs not having pressed the said application could not now urge the point over again in the suit and the question of default should be set at rest on the basis of the concession made in the said application. The application was heard for four days and it was only when the Learned Counsel found that he had no chance to succeed in the said application he conceded to the, order being made against him in the said application. The Learned Counsel on behalf of the Plaintiffs, on the other hand, contended that the point was not finally decided by the Court and as such, the question of res judicata or the principles analogous thereto could not apply.

Various authorities had been cited from the bar as to whether the question of default had been finally decided or not or whether the same was hit by the principles of res judicata or the principles analogous thereto. The point had been fully argued before me.

The learned Advocate-General urged that the order in the same proceeding was a bar to further proceeding on the same point. Such interlocutory order would be binding on the parties at the trial. The point could not be agitated over again at the time of the hearing of the suit. He cited the case of J.K. Sons v. Metal Press Works Ltd. (1966) 70 C.W.N. 324 where B. Mukherjea J. held that the determination of rent made u/s 17, Sub-section (2) of the said Act of 1956 was a final determination and could not be reopened at the trial of the suit.

In the case of Ram Kirpal Shukul v. Mussamat Rupkauri L.R. 11 IndAp 37 the principles of res judicata was applied in the execution proceedings when the same question was already decided in a previous execution proceeding under the same decree. It was held that the binding force of such a decision would depend upon the general principles of law and not upon the provisions in the Code dealing with res judicata.

In delivering judgment of the Judicial Committee Sir Barnes Peacock observed:

The matter decided by Mr. Probyn was not decided in a former suit but in a proceeding of which the application in which the orders reversed by the High Court were made was merely a continuation. It was as binding between the parties and those claiming under them as an interlocutory judgment in a suit is binding upon the parties in every proceeding in that suit, or as a final judgment in a suit is binding upon them in carrying the judgment into execution. The binding force of such a judgment depends not upon Section 13, Act X of 1877, but upon general principles of law. If it were not binding there would be no end to litigation.--Page 41.

The principles laid down in the above case, of the Judicial Committee was consistently followed all throughout by subsequent decisions of the Judicial Committee and ultimately the same was applied by the Supreme Court in the case of Satyadhyan Ghosal and Others Vs. Sm. Deorajin Debi and Another, . It was observed:

The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.

The above observation was made on the basis of the principle of finality of judicial decisions : See also Krishna Behari Roy v. Brojeswari Chowdranee and Ors. L.R. 2 IndAp 283 (285, 286) and Hook v. Administrator General of Bengal and Ors. L.R. 48 IndAp 187 (193).

I have already set out hereinabove the consent order made by A.K. Mukherjea J. on August 11, 1964. It will clearly appear there from that the parties reserved their rights to agitate the point of default at a subsequent stage on the ground that the deposits made therein were not valid deposits. The effect of the said consent order was that the parties consented to enable the tenants to deposit the amounts for the subsequent months in Court within time in terms of Section 17, Sub-section (1) of the West Bengal Premises Tenancy Act, 1956.

I have already indicated that in 1966 the Plaintiffs landlords made an application for striking out the defence on the ground that the Defendants were defaulters in payment of rent within the meaning of Section 17, Sub-section (1) of the said Act of 1956 and as such, prayed that their defence be struck out under the provision of Section 17, Sub-section (3) of the said Act of 1956. The material paragraphs of the said petition (Ex. 8) of the said application are set out as follows:

Your Petitioners/Plaintiffs submit that the Defendants were defaulters in respect of the rent for the months of March 1962 and April 1962 and onward. Your Petitioners /Plaintiffs further submit that inasmuch as the Defendants failed and neglected to deposit the rents for the period of defaults as aforesaid in Court or to the landlord within one month from the date of service of writ of summons as aforesaid in accordance with Section 17(1) of the West Bengal Premises Tenancy Act, 1956, this Hon''ble Court should strike out the defence of the Defendants against the delivery of possession and should proceed with the hearing of the suit.

Your, Petitioners/Plaintiffs further submit that the payments of Rs. 700 per month since July 1964 and onwards in Court are not valid deposits of rent in Court in accordance with the provisions of the West Bengal Premises Tenancy Act and as such the defence of the Defendants should be struck out as aforesaid and the Court should proceed with the hearing of the suit.

From the above it would appear that one of the grounds of the said application was that the Defendants were defaulters in respect of the payment of rent for the months of March and April 1962 and onwards. The effect of that argument was that even though the Defendant got the opportunity to put in the said amounts in Court after the writ of summons was served on them yet they made defaults in depositing such sums. There is a further ground, viz., that since July 1964 and onwards deposits made by the Defendants in Court pursuant to the said consent order were also not valid deposits.

As indicated above the application was contested on merits from time to time and the hearing took place on four different days. Ultimately on the fourth day Mr. Mitter, Learned Counsel for the Plaintiffs landlords, intimated the Court that he would not press the application any further and on the basis of such concession the Court recorded the same and made no order on the said application.

Mr. Mitter contended that when the Court made no order on the application the Court did not apply its mind on the merits of the application. It was neither heard nor decided. Accordingly, the principle of res judicata or the principles analogous thereto could not be made applicable in the facts of this case.

According to Mr. Mitter the Applicants in the said application did not invite the Court to hear the application nor did they invite the Court to determine the points raised therein. When the application was abandoned as not pressed there was no scope for the Court to hear or to determine or to apply its judicial mind. Accordingly, the question of the subsequent matter being barred by res judicata could not have arisen. There was no order of dismissal of the said application. Mr. Mitter relied on the House of Lords decision in Jenkins v. Robertson L.R. (1866) 1 Scotch App. 117 (122, 123) to the effect that when the Court merely recorded a consent order or decree without applying its judicial mind it could not be treated as res judicata in a subsequent proceeding.

The next case cited by Mr. Mitter was the case of Kali Krishna Tagore v. Secretary of State for India in Council and Anr. L.R. 15 IndAp 186. Mr. Mitter also cited before me the case of Sheosagar Singh and Ors. v. Sitaram Singh and Ors. L.R. 24 IndAp 50. There was still another case which was relied on by. Mr. Mitter and that was the case of Sasanka Bhusan Chowdhury Vs. Gopi Ballav Mondal and Others, . These cases have dealt with the broad principle that to constitute res judicata the matter must be heard and finally decided.

In reply to Mr. Mitter''s aforesaid contentions the learned Advocate-General contended that the order under consideration was not a consent order. The case of Raja Sri Sailendra Narayan Bhanja Deo Vs. The State of Orissa, was cited as an authority for the proposition that even a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the Court exercises its mind on a contested case.

On the basis of the aforesaid Supreme Court case it appears to me that the case reported in the House of Lords case of Jenkins v. Robertson L.R. (1866-69) 1 Scotch App. 117 (122, 123) cannot now be considered as an authority for the proposition that the consent judgment did not bind the parties to the judgment in a subsequent proceeding. The real effect of the order dated July 2, 1968, was that it was refused by the Court.

It was contended that had there been any default the defence would have been struck out, but because there was no such default, the Court made no order on the application. Section 17 Sub-section (3) provided that the Court must strike out the defence. If a case was made out the Court was bound to make an order striking out the defence. It necessarily followed that if the case was not made out, then only the Court could refuse the application.

In my opinion, the implication of an order such as ''the Court makes no order on the application'' is that the application is refused and there is a decision and as such, the principles of constructive res judicata will apply. It amounted to the dismissal of the application on merits when the application was not pressed on the fourth day of hearing and the Court recorded the same and passed no order. The effect thereof was that the application had no merit of its own and it would not be worthwhile to proceed any longer therewith. The Court appreciated the position and dismissed it by recording ''no order''.

The application for striking out the defence was made in 1966. The effect of the said order is that upto that point of time there had been no default in depositing the monthly sums. The deposits made subsequent to the said date of the application are not the subject-matter of any pending application. In the-said application the question involved was--could the defence be struck put on the ground of default as alleged in that application? The effect of my decision is that the defence could not be struck out because of any default. The case of Umesh Chunder Dey and Ors. v. Sharbessur Chunder and Anr. 5 C.W.N. 304 was decided in 1901. On the fact of the case before me, in my opinion, this case is distinguishable. In any event, I have already referred to the Supreme Court decision Daryao and Others Vs. The State of U.P. and Others, wherein in a writ petition the application seeking to add two new grounds was rejected and thereafter another new application was sought to be taken out with those two additional grounds. The Supreme Court rejected the application applying the principles of res judicata and the two additional grounds were not entertained.

The case of AIR 1939 414 (Lahore) is also distinguishable from the facts of the case before me. That was a case of abandonment of the claim and as such, there was no decision by the Court which could operate as res judicata in the subsequent proceeding.

In my opinion, the case of abandonment of a claim stands on a different footing from a case where after due contest one of the parties intimates the Court that he is not in a position to press the claim and on that basis the Court makes no order on the application as was the case here.

In that case issues were framed and thereafter both the Plaintiffs abandoned their claim which was covered by the said issue. The suit was accordingly dismissed. The point was taken that as the suit was dismissed the issue must be deemed to have been decided against the Plaintiff and it operated as res judicata.

Similarly the principle of res judicata will not apply in the case of withdrawal of the application or the claim in the suit because there is no decision. But in the instant case before me, there is a decision. The case of Periaswami Vs. Vaidhilingan Pillai and Others, is also a case of withdrawal of the claim and as such, is distinguishable from the facts of the case before me. To similar effect was the case of Albert Judah Judah Vs. Rampada Gupta and Another, where a suit was withdrawn and an attempt was made to apply Order 23, Rule 1(3) of the Code. It was held that the subject-matter of the two suits were different. In the case of Durdandyapa v. Malhar Bhagwant 2 Bom. L.R. 871 it was held that the principle of res judicata could not have any application when the former suit had been withdrawn on the principle that the suit had not been ''heard and finally decided''. The Court also came to the finding that the subject-matter of the subsequent suit was not the same as that of the former suit. The cause of action was different and so was the relief sought. Accordingly, this case has no application.

In the case of Mahadeo Prasad Bhagat Vs. Bhagwat Narain Singh, a point, was taken as to the validity of the execution proceedings. It was urged that no sanction of the Commissioner was obtained u/s 12A of the Chota Nagpur Encumbered Estates Act and as such, the sale was invalid. Although this point was raised, it was not decided. The Court dismissed the objection raised by the judgment-debtor. In a subsequent suit for a declaration that the sale was void the principle of res judicata was applied and the suit was held to be barred. This Patna case has been affirmed by the decision of the Supreme Court in the case of Mohanlal Goenka Vs. Benoy Krishna Mukherjee and Others, . In that case the objection petition having been dismissed it followed that the objection as to the validity of the said sale was, by necessary implication, decided by the Court and accordingly, the principle of res judicata was applied.

The question is--would the above principle of finality of decisions be applied in the facts and circumstances of this case or would the question be allowed to be agitated at the hearing stage? It should be borne in mind that by the order of A.N. Sen J. the said application for striking out the defence was adjourned till the hearing of the suit. In other words, when Mr. Mitter conceded that he would not press the application, the hearing of the suit had already started. The defaults committed in the payments or deposits of rent for the months of March and April 1962 and onwards as also the subsequent defaults, if any, upto the date of the said application were brought within the scope of the said concession recorded in the said order dated July 2, 1968. Under those circumstances, in my opinion, the technicalities connected with the payment or deposit of the sums either to the landlord or in Court in respect of the months beginning from March 1962 till the date of the said application, viz. May 11, 1966, cannot be agitated over again by the Plaintiffs at the trial of this suit. Accordingly, it follows that the decision as to whether the sum was tendered first before the same had been deposited with the Rent Controller or with the Court has become immaterial. The decision as to whether the deposits for the months of March and April 1962 and onwards were made within time or not have also likewise become immaterial.

Considering all the above cases and the arguments put forward by both the parties, I uphold the contentions of the learned Advocate-General and I hold that the application was decided by the Court on its merits when the Court made no order thereon after the same was not pressed by Mr. Mitter. Mr. Mitter''s contentions are rejected.

The only point that remains to be considered is about the default committed on behalf of the tenants in depositing the sum in respect of the month of March 1968 pursuant to the order of A.K. Mukherjea J. made on August 11, 1964.

In course of arguments, i.e., when the hearing was almost at an end, Mr. Mitter, Learned Counsel for the Plaintiffs, brought it to the notice of the Court from a certificate of the Registrar that the Defendants had failed to deposit rent for the said month of March 1968. Enquiries were made by the Defendant''s Solicitors and it was found that through inadvertence the rent for the said month was not actually deposited. It was an accidental omission on the part of the clerk of the Solicitor''s firm. On the next day the Defendants made an application before this Court for condonation of the delay and for leave to deposit the said amount with the Registrar. The affidavits were filed in the said application. In the petition of Mrs. Violet Smith in the said application it was, inter alia, stated that in terms of the order dated August 11, 1964, she had been sending to her Solicitor Mr. M.K. Palit month by month and every month within two or three days of each month the sum of Rs. 700 and the Registrar''s commission for depositing the same in Court in terms of the said order. She further stated that on February 7, 1969, she for the first time came to learn that the deposit for the month of March 1968 was not made. She further stated that the said omission was entirely due to the inadvertence on the part of her Solicitor. The said Mr. M.R. Palit filed an affidavit in support of the said petition wherein he stated that on April 2, 1968, Mrs. Violet Smith sent to him the rent and the Registrar''s commission for the month of March 1968. On April 3, 1968, the said Solicitor applied for a lodgment schedule for the issue of the relevant challans. On April 4, 1968, he had to leave for New Delhi in connection with the special leave application before the, Supreme Court and was detained there till April 20, 1968. Before leaving for New Delhi he left instruction for depositing the rent. According to him, the deposit was not made due to a bona fide mistake on the part of his office staff. He regretted the mistake and prayed for leave to deposit the same forthwith. In the affidavit-in-opposition filed by Bejoy Kumar Chowdhury several points were taken. One of such points was that the application was misconceived and not maintainable and in any event was barred by the law of limitation. In any event, the application was barred under the provisions of the West Bengal Premises Tenancy Act, 1956. Another point taken was that the petition had not been affirmed by E.F. Smith and that the affidavit on behalf of the Defendant No. 3, filed by the said Ali Baba Azam, was misconceived. The said Bejoy Kumar Chowdhury, accordingly, asked for the dismissal of the application. There was a joint affidavit-in-reply filed by the said Ali Baba Azam and the said Solicitor M.K. Palit wherein they reiterated their statements made in the petitions and in the supporting affidavits respectively.

I have no doubt in my mind and I am satisfied from the petitions and the affidavits filed herein that this was a case of an obvious mistake or an omission through inadvertence on the part of the Solicitor Sri M.K. Palit. In other words, Section 17, Sub-section (1) of the West Bengal Premises Tenancy Act of 1956 had not been complied with fully. Whatever might be the reasons for the default the fact remains that there had been a default for one month, i.e., for the month of March 1968 to deposit or to pay as directed by the order dated August 11, 1964.

The point which is now to be decided is whether that Sub-section (3) of Section 17 of the said Act would apply in this case. The said Sub-section (3) provides as follows:

(3). If a tenant fails to deposit or pay any amount referred to in Sub-section (1) or Sub-section (2), the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit.

The object of this Sub-section, it appears, is not only to take away the protection conferred on the tenant to the extent as provided in Sub-sections (1) and (4) but also to impose a penalty by striking out his defence in the sense that the Court would proceed with the hearing of the suit as of an undefended suit. The hearing had almost come to a close when, this omission was brought to the notice of the Court and of the Defendants. The defence had already been fully gone into by considering the written statement, raising issues, leading evidence, cross-examining, the Plaintiffs'' witnesses and by making arguments for days together. At that stage the, question of striking out the defence would be of little consequence. In my opinion, if the defence had not been struck out so long it would be futile to strike out the same at the time of delivering the judgment. The Legislature certainly did not intend the striking out of the defence after the Court had proceeded with the hearing of the suit in full.

I shall indicate that both parties took several points in this application. On behalf of the Defendants it wag contended that under the Limitation Act of 1963 the Court had the power to extend the time for this particular deposit with such interest as might be directed by this Court. He referred to Section 29, Sub-section (2) of the Limitation Act, 1963. According to him, even when there is anything provided in the special or local law regarding the period of limitation then Sections 4 to 24 of the Limitation Act, 1963, would apply subject to the exception mentioned therein. In the Limitation Act, 1908, Section 5 was excluded from the old Section 29 so that if under a special and a local law a period of limitation was prescribed then the Court could not have applied Section 5 of the old Limitation Act, 1908, nor could condone the delay in making an application. Under the present Limitation Act of 1963 this power has been given to the Court to condone the'' delay.

On behalf of the Defendants my attention was also drawn to Sub-sections (2A) and (2B) of Section 17 which had been enacted by the West Bengal Premises Tenancy (Amendment) Act (IV of 1968). The said amendment of Section 17 is set out as follows:

Amendment of Section 17: In Section 17 of the West Bengal Premises Tenancy Act, 1956, West Bengal Act XII of 1956 (hereinafter referred to as the principal Act)

(1) after Sub-section (2), the following sub-sections shall be inserted, namely,

(2A) Notwithstanding anything contained in Sub-section (1) or Sub-section (2), on the application of the tenant, the Court may, by order--

(a) extend the time specified in Sub-section (1) or Sub-section (2) for the deposit or payment of any amount referred to therein;

(b) having regard to the circumstances of the tenant as also of the landlord and the total sum inclusive of interest required to be deposited or paid under Sub-section (1) on account of default in the payment of rent, permit the tenant to deposit or pay such sum in such instalments and by such dates as the Court may fix.

Provided that where payment is permitted by instalments, such sum shall include all amounts calculated at the rate of rent for the period of default including the period subsequent thereto upto the end of the month previous to that in which the order under this sub-section is to be made with interest on any such amount calculated at the rate specified in Sub-section (1) from the date when such amount was payable upto the date of such order.

(2B) No application for extension of time for the deposit or payment of any amount under Clause (a) of Sub-section (2A) shall be entertained unless it is made before the expiry of the time specified thereof in Sub-section (1) or Sub-section (2) and no application for permission to pay in instalment under Clause (b) of Sub-section (2A) shall be entertained unless it is made before the expiry of the time specified in Sub-section (1) for the deposit or payment of the amount dug on account of default in the payment of rent.

(2) for Sub-section (3), the following such section shall be substituted, namely,

(3) If a tenant fails to deposit or pay any amount referred to in Sub-section (1) or Sub-section (2) within the time specified therein or within such extended time as may be allowed under Clause (a) of Sub-section (2A), or fails to deposit or pay any instalment permitted under Clause (b) of Sub-section (2A) within the time fixed therefore, the Court shall order the defence against delivery of possession to be struck put and shall proceed with the hearing of the suit.

(3) in Sub-section (4),

(a) for the words, brackets and figure ''or Sub-section (2)'' the words, brackets, figures and letter Sub-section (2) or Sub-section (2A), shall be substituted;

(b) for the existing proviso, the following proviso shall be substituted, namely, Provided that a tenant shall not be entitled to any relief under this sub-section if, having obtained such relief once in respect of the premises, he has again made default in the payment of rent for four months within a period of twelve months.

It would appear from the said amendment that under certain circumstances the Court may, by order, extend the time for deposit or payment of any amount referred to in Section 17(1) of the West Bengal Premises Tenancy Act, 1956.

Mr. Mitter contended that these provisions were not applicable in respect of cases prior to the coming into force of this amendment. It would appear that the said Amendment Act (IV of 1968) was published in the Calcutta Gazette Extra-Ordinary of March 26, 1968. Mr. Mitter also contended that Section 5 of the Limitation Act, 1963, has no application to the facts and circumstances of this case in view of the express language of the said Amendment Act (IV of 1968) wherein it had been specifically provided that

no application for extension of time for the deposit or payment of any amount under Clause (a) of Sub-section (2A) shall be entertained, unless....

Under the circumstances, Mr. Mitter contended that the provisions of Section 29 and of Section 5 of the Limitation Act, 1963, could not be attracted in the present case.

The learned Advocate-General referred to me the case of Imperial Bucket Co., a firm Vs. Sm. Bhagwati Basak, where under the old Limitation Act, 1908, Section 12 of the said Act was made applicable in the case under the West Bengal Premises Rent Control (Temporary) Provision Act, 1950, for obtaining a certified copy u/s 12 of the said Act. It was contended that the clear intention of Sub-section (2B) of the Amendment Act (IV of 1968) was to make Section 5 applicable to suits and applications unless expressly excluded. The learned Advocate-General also drew my attention to the case of Sita Ram and Another Vs. State, where Sections 12 and 29 of the Limitation Act, 1903, were considered and Section 12 was applied in regard to a complaint filed u/s 106 of the Factories Act. On behalf of the Defendants my attention was drawn to Section 39 of the West Bengal Premises Tenancy Act, 1956.

In any event, in view of my finding that the default for payment for the month of March 1968 could not be agitated at that stage of the proceeding as a ground for striking out the defence herein, nothing would turn on the decision of this application for extension of time.

Accordingly, the aforesaid arguments advanced on behalf of the respective Learned Counsel need not be considered by me in this proceeding and I am inclined not to express any view thereon.

The result, therefore, is that Issue No. 2(a) is answered in the negative.

As regards Issue No. 2(b) the effect of the order dated August 2, 1966, passed by A.N. Sen J. is that the application was to be decided at or immediately before the hearing of the suit and the scope of the application would be to decide the question relating to any default on and from March 1962 till the date of the application which was made on May 11, 1966. The said application was heard and on July 2, 1968, the same was ultimately not pressed and no order was made thereon. The effect of the said order was that the said application was dismissed on merits. The net effect of the said order dated July 2, 1968, was that there was no default from March 1962 till May 11, 1966. There being no other application pending u/s 17(3) of the West Bengal Premises Tenancy Act, 1956, no other case of default could be agitated in this suit.

Issue No. 3:

The Plaintiffs are entitled to all sums deposited by the Defendants on and from and in respect of the months commencing from March 1962 with the Rent Controller and also to withdraw all sums deposited with the Registrar of this Court pursuant to the said order dated August 11, 1964, passed by A.K. Mukherjea J. upto date hereof. As regards the rent of March 1968 the same would be paid by the Defendants to the Plaintiffs with interest thereon at the rate of 80 per cent, per annum from the date when such amount was liable to be deposited upto the date of the actual payment. Inasmuch as the prayer for recovery of possession is being rejected I shall consider the prayer for mesne profits as a prayer for rent and accordingly, the Plaintiffs will be entitled to a decree for the said sums. Upon withdrawal thereof and upon receiving the aforesaid sums the Plaintiffs would appropriate the same against all arrears of rent upto the month for which such deposit was made.

Issue No. 4:

Although this issue had been raised, no arguments were advanced by the parties. It appears that notice is quite in order and the issue is answered in the affirmative and is decided accordingly.

Issues No. 5:

The value of the suit is much more than Rs. 10,000 and accordingly, this Court has jurisdiction to try and to entertain the same within the meaning of Section 20 read with the Schedule to the West Bengal Premises Tenancy Act, 1956.

By notice dated October 9, 1963, the Plaintiffs determined the tenancy and called upon the Defendants to quit and vacate and deliver Up possession on the expiry of the tenancy from the month of November 1963 and on the basis thereof have claimed a sum of Rs. 14,700 calculated at the rate of Rs. 700 per month from March 1962 till November 1963. The Plaintiffs have also claimed a sum of Rs. 1.000 per month as mesne profits from the month of December 1963 till possession would be delivered. In other words, the value of the suit at the date of the institution of the suit, exceeded the sum of Rs. 10,000 on the basis whereof the suit could be filed in this Court. The City Civil Court could not have jurisdiction to try and to entertain this suit because it exceeded its pecuniary limit as provided under the City Civil Court Act (XXI of 1953).

In the case of Jayantilal Ojha v. Dalhousie Properties Ltd. 70 C.W.N. 55 the Division Bench of this Court held that the value for the purposes of Court-fees and jurisdiction was the value at the date of the institution of the suit. In that case the monthly rent was Rs. 550. The Court not only took into consideration the rent but also the accrued mesne profits upto the date of the filing of the suit and on that basis the figure having exceeded the sum of Rs. 10,000 held that the City Civil Court was not competent to try the suit and the High Court had jurisdiction to try the same. In view of that judgment, the point was not pursued further but it was made clear that the point was not expressly given up.

Under those circumstances, I hold that this Court alone has jurisdiction and the City Civil Court has no jurisdiction to try and to entertain this suit.

Issue No. 6:

On this issue it was argued that if mesne profits would be allowed by this Court then the same should be on the basis of a sum of Rs. 1,000 per month because the said premises would fetch much more than Rs. 700 per month which was the sum payable by the Defendants every month. It is not necessary for me to decide this point in view of my decision that the Plaintiffs are not entitled to any reliefs by way of recovery of possession claimed herein. But even assuming that the Plaintiff would have succeeded the Plaintiffs could not have recovered more than Rs. 700 per month as mesne profits in view of the definition of ''tenant'' u/s 2(h) of the West Bengal Premises Tenancy Act, 1956, which provided inter alia that the expression ''tenant'' would include any person continuing in possession after the termination of his tenancy. In view of that definition the Defendants would not have been liable in any event to pay any sum more than Rs. 700 per month upto the date of the decree, if the same would have been passed.

In view of my findings in respect of the previous issues herein the suit as regards the recovery of possession is bound to fail and is accordingly dismissed, but the Plaintiffs'' would be entitled to a decree for rent under Issue No. 3 as indicated above at the rate of Rs. 700 per month'' in respect of the months beginning from March 1962 till the date of the suit and thereafter, at the same rate upto date. The Plaintiffs would be at liberty to withdraw all sums from the Rent Controller as also from the Registrar of this Court and the Defendants would render all possible assistance in the matter of such withdrawal. As regards the rent of March 1968 the same would carry interest @ 8 2/3 per cent per annum from the date when such amount was to be deposited till the date of payment.

In view of the fact that lengthy arguments were advanced on the question of default at various stages of this proceeding, in my opinion, the justice of the case would demand that either party should pay and bear their respective costs. Certified for two counsel as against their own respective clients.