PURNAND GARG Vs. TUHIN KR. CHOWDHURY

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of possession, mesne profits and other reliefs in respect of Municipal Premises No. 6, Lansdown Place and more fully described in the schedule of the plaint (hereinafter referred to as "the suit premises") on the ground of expiry of lease.

(2.) The plaint case, in short, is that by a registered indenture of lease dated 30th Nov., 1960 between Smt. Bedbala Devi as lessor and defendant Purnand Garg as lessee, a lease in respect of the suit premises was created for 21 years commencing from 1st of Dec., 1960 and terminating on 1st of Dec., 1981 and monthly rent payable was Rs. 800.00 together with occupier's share of taxes, initially assessed at Rs. 52/- payable within 7th of each English Calender Month in respect of the month in which the rent fell due. By virtue of a deed of gift dated 13th Aug., 1969 Smt. Bedbala Devi bequeathed, conveyed and transferred the suit premises in favour of her son that is plaintiff/respondent and thus the defendant/appellant became the lessee under the plaintiff/respondent on the same terms and conditions as contained in the lease deed dated 30th Nov., 1960. The defendant/appellant attorned to the plaintiff/respondent and notice of such attornment was given by the plaintiff/respondent to the defendant/appellant. The plaintiff/respondent accepted the rent from time to time from the defendant/appellant in terms of the lease deed dated 30th Nov., 1960. On the expiration of Dec. 1, 1981 the tenure of the lease expired, even then the defendant had failed to deliver vacant possession of the suit premises in favour of the plaintiff/respondent. It was also the case of the plaintiff/respondent in his plaint that the defendant/appellant was not entitled to invoke the provisions of the West Bengal Premises Tenancy Act, 1956 and that at current market rate the suit premises would fetch a rent of Rs. 5,000.00 per month and, therefore, defendant/appellant was liable to pay mesne profits at that rate with effect from 2nd Dec., 1981 when the lease expired. Since the occupier's share of texes was also increased by the Municipal Corporation, the defendant/appellant was liable to pay enhanced rate of municipal taxes. Upon the aforesaid allegations, the plaintiff/respondent was constrained to file the suit for eviction of defendant/appellant on the ground of expiry of lease and for mesne profits and other incidental reliefs.

(3.) The defendant/appellant contested the suit by filing a written statement wherein the material allegations made in the plaint were denied. It was alleged in the written statement that the suit was not maintainable in law against the defendant/appellant in view of the fact that the defendant/appellant was not a lessee and Waxpol Industries Ltd. was in fact, the lessee of the suit premises under the plaintiff/respondent. He further alleged that although the lease deed was executed by and between Smt. Bedbala Devi and the defendant/appellant, but the said lease was not acted upon. It would appear from the correspondence between the partios, that Waxpol Industries Ltd. took lease of the suit premises and incurred all expenses for the suit premises and fully repaired and renovated the old dilapidated building by incurring expenditure from time to time and all along maintained the suit premises. It was the further case of the defendant/ appellant in his written statement that the defendant/appellant was not eagar to get the lease executed in his personal name, but as the lease was done hurriedly, it was done in his name. The said Waxpol Industries Ltd. allowed the defendant/appellant who was the Managing Director of the Company to occupy a part of the suit premises as his residence along with other officers of the said company and the said Waxpol Industries Ltd. was carrying on business in the rest of the suit premises and was all along paying rent to the predecessor-in-interest of the plaintiff/respondent and thereafter to the plaintiff/respondent which was accepted by the lessee. Accordingly, the defendant/appellant alleged in the written statement that since defendant was not the lessee and it was Waxpol Industries Ltd., who was the lessee under the plaintiff/respondent, the suit filed against the defendant/appellant cannot be held to be maintainable in law. So far as the mesne profits are concerned, the defendant also denied such liability and alleged further in the written statement that the Waxpol Industries Ltd. incurred huge expenses from time to time amounting to Rs. 1,00,000.00 to renovate the entire dilapidated house, the plaintiff/respondent was not entitled to mesne profits. Accordingly, the defendant/appellant sought for dismissal of the suit.