NUMAZAR DORAB MEHTA Vs. ASSAM COMPANY LTD

JUDGEMENT

(1.) THIS is an application filed under chapter XIII A of the Original Side Rules of this Honble Court.

(2.) THE case of the plaintiff petitioner is that the trustees of the Calcutta Zoroastrian Communitys Religious and Charity Fund, (Zoroastrian Trust) and Olpadvala Memorial Trust, are owners of premises 52, Chowringhee Road, Kolkata- 700 071 (premises) and the buildings thereon. As a lease deed was executed on 17 April, 1984 by the trustees for 21 years in favour of the defendant, on expiry of the lease term the defendant was to vacate the said premises in its possession and for not doing so a notice under Section 106 of the Transfer of Property Act was issued on 4th December 2006. THE said notice was received by the defendant. As no reply was given to the said notice nor steps taken to vacate the said premises C.S. 16 of 2007 was filed. THE said suit is maintainable under the 1997 Act as the lease rent per month is in excess of Rs. 10,000.

(3.) IN reply Counsel for the plaintiff petitioner submits that by order dated 17th March, 2009, the existence of two causes of action has been accepted by the defendant. This is more evident from the Order dated 9th June 2009 passed in appeal when leave was granted under Order 2 Rule 4 of the Code of Civil Procedure and on basis thereof steps have been taken to amend the pleadings and include the claim on account of Municipal taxes. The amendment has been made and amended plaint served on the defendant. IN the notice under Section 106 of the Transfer of Property Act the claim of Municipal Taxes has been included and Section 111(g) and (h) so also Section 113 of the Transfer of Property Act 1882 be considered. IN paragraph 10 of the plaint the pleadings on account of Municipal Taxes will appear and a decree sought for the said sum. Leave granted by the appeal Court remains irrespective of the defective amendment made if any. The filing of suit by the trustees has not been disputed in the letter dated filed 29th December, 2006 and the Zoroastrian Trust has been accepted as the landlord. The objection regarding trustees has not been taken in the said letter dated 29th December, 2006 whereby the defendant sought to pay the Municipal rates and taxes. IN C.S 199 of 2001 neither before the Trial Court nor before the Appeal Court was the locus of the trustees questioned. IN fact by order dated 21 February, 2005, the appointment of the plaintiff no. 2 was upheld and in appeal which was filed from the said order the same was dismissed on 20th April 2005. Therefore, the suit by the plaintiff No. 2 is maintainable and the defence is dishonest and no defence as held in AIR 1977 SC 577, AIR 1999 SC 2218 and AIR 1968 Gujarat 184.