HARRISON ROAD PROPERTIES Vs. RAMDHONDAS JHAJHARIAQ

JUDGEMENT

(1.) THIS is an application by the defendant to set aside the order made in this suit on 19 -7 -1949, upon the applicant paying to the decree -holder plaintiff a sum of Rs. 1221 and Rs. 1914 -2 -0. The order dated 19 -7 -1949, was made on the summons taken out by the plaintiff under Chap. XIIIA of the Rules of this Court. This order of 19 -7 -1949 was made by consent of parties and had the following terms : (a) The parties were directed to file their respective affidavits of documents within a week from the date of the order. (b) Inspection of the documents disclosed by the parties forthwith after discovery, (c) Liberty to apply for an yearly date for hearing of the suit, (d) Without prejudice to the contentions of the parties the applicant was directed to pay on or before 27 -7 -1949, to Messrs. P. D. Himatsingha and Co., solicitors for the plaintiffs a sum of Rs. 8138 -4 -0 and Rs. 1881 and also a sum of Rs. 612 on or before the 7th of each and every succeeding months all such sums to be held by them subject to orders of this Court, (e) In default of the applicant's paying any of such sums as aforesaid within the time as specified a decree be made in terms of the prayers of the summons.

(2.) THEN what happened was this. The applicant paid the two sums of Rs. 8138 -4 -0 and Rs. 1881 in terms of that order of 19 -7 -1949. The applicant also paid Rs. 612 in terms of that order up to the month of February 1950. Then there was a default by the applicant for the months of March and April. Having regard to the default clause the decree followed in pursuance of the order of 19 -7 -1949.

(3.) IT is necessary to set out the contentions of the parties in this suit as they appear on the pleadings because the consent order of 19 -7 -1949 was made without prejudice to the respective contentions of the parties. The plaintiff sued the defendant as a tenant and the plaintiff proceeded on the basis that the defendant was a defaulter for more than three consecutive months and incurred the statutory forfeiture under Section 12 (3) of the Rent Act of 1948. The written statement of the defendant, however, denied altogether any tenancy. The defence is that the plaintiff lent and advanced to the defendant a gum of Rs. 2,00,000 and a conveyance was executed by the defendant in respect of Premises Nos. 138 and 138/1, Harrison Road being the premises in suit in favour of the plaintiff. According to the defendant no rent was payable but the said loan was repayable within five years with interest at 5%. The definite case of the defendant was that he was never a monthly tenant and that the provisions of the West Bengal Premises Rent Control Act, 1948, did not apply at all to his case. Without prejudice to contentions as to whether the defendant wag or was not a tenant the parties agreed to the terms of settlement specified in the consent order of 19 -7 -1949.