SAILABALA DASSEE Vs. H A TAPPASSIER

JUDGEMENT

(1.) This suit is instituted by the plaintiff Sm. Sailabala Dassee as executrix to the estate of Kali Pado Barick deceased for recovery of possession of the premises 122/3A and 122/4A Upper Circular Road, Calcutta, mense profits from the 21st December, 1945, until delivery of possession at Rs. 7/- per day and interest and costs.

(2.) I shall have to state the facts of the case in some details. There is not much dispute as to those facts, but the real dispute between the parties is as to the effect of those facts on their legal position. By an agreement dated 23rd September, 1940, the plaintiff let out to the defendant premises No. 122/3A, Upper Circular Road, for 12 months at a rent of Rs. 97/-per month. The said agreement inter alia provided that if the rent is paid on the first day of each succeeding month then the defendant would be entitled to get a rebate at the rate of Rs. 7/- per month. On the 3lst March, 1942, there was another agreement under which the plaintiff let out to the defendant the premises No. 122/4A, Upper Circular Road, Calcutta, for six months at a monthly rent of Rs. 60/- per month. There was also a clause in the said agreement for grant of rebate at the rate of Rs. 10 per month if the rent was paid on the first day of each succeeding month. Both the said tenancies, under the agreements dated 23rd September 1941 and 31st March 1942, respectively were terminable by either party giving one month's notice. By his letter dated the 26th August, 1942, the defendant informed the plaintiff that both the leases would expire on the 30th September, 1942, and gave him notice that the said tenancies would be maintained at the existing rentals during the war and until after six months after complete cessation of hostilities in the West, the East or anywhere else. The defendant also informed the plaintiff by his said letter that should the plaintiff fail to confirm the above he would apply to the Government department concerned so that a requisition order may be served on the plaintiff to enable the defendant not only in maintaining tenancy of the two premises but for further extension contemplated. The plaintiff through her pleader caused a notice of ejectment dated 31st August, 1942, to be served on the defendant calling upon him to quit and vacate the premises in' question on the expiry of the month of September 1942. There were two such notices, one for each of the said two premises. On the 28th September, 1942, Messrs. Leslie & Hinds acting on behalf of the defendant wrote to the plaintiff informing her that their client, the defendant, had applied to the Government to requisition the above premises and Messrs. Leslie & Hinds on the same date had forwarded to the Assistant Secretary to the Government of Bengal, Revenue Department, Land Asquisition, their client's cheque for Rs. 140/- in payment of rent of the premises for the current month. With reference to the notices of ejectment Messrs. Leslie & Hinds, on behalf of the defendant wrote to the plaintiff on the 7th October, 1942, inter alia stating that they have heard from the Assistant Secretary to the Government of Bengal, that the Government had communicated with the Director of the Ordnance Factories regarding the requisitioning of the above premises under the Defence of India Rules, and further action will be taken by the Government after the receipt of reply from the Director of Ordnance Factories and in the circumstances the notices to quit served on their client are not valid or binding on him. Thereafter Messrs. S. K. Ganguly & Co., solicitors of the plaintiff served two notices both dated 29th October, 1942, on the defendant calling upon him to quit and vacate the two premises No. 122/3A and 122/4A, Upper Circular Road, respectively on the expiry of the last day of the month of November 1942 or the last day of the next month of tenancy. There is some dispute between the parties as to the date when this notice, to quit was actually served on the defendant. The case of the defendant is that one month's notice was not given in terms of the said leases, and that the said notices were not served on 29th October, 1942, but at a later date. The case of the plaintiff is that the said notices to quit were served on the 29th October, 1942, and one month's notice was given to the defendant to quit.

(3.) On the 2nd November, 1942, Messrs. Leslie & Hinds, solicitors for the defendant wrote a letter to the plaintiff in which it was inter alia contended that the said notice to quit is bad in law inasmuch as their client is not holding over the, above premises on monthly rent but under a lease and their client had exercised the option of continuing and the plea that he is a monthly tenant is not maintainable. By the said letter a sum of Rs. 420/- was sent to Messrs. S. K. Ganguly & Co., solicitors for the plaintiff, as the rents for the months of June, July and August 1942, less, the rebate and the plaintiff's solicitors were requested to give to the defendant credit for the sum of Rs. 140 which was lying in deposit in the defendant's hands, in payment of the month of September and to give a formal receipt in full payment of the total sum of Rs. 560 being rent for June, July, August & September. In the last paragraph of the said letter it was stated that their client had already applied to the Revenue Board, for requisitioning the premises under the Defence of India Rules, and it is expected that the premises would be requisitioned at an early date. The sum of Rs. 420/- sent as aforesaid in full payment of rent for the months of June, July, August and September 1942, were not accepted by- the plaintiff as the same was not in full payment of the plaintiff's dues, there being no question of rebate and was returned back to Messrs. Leslie & Hinds. On the 2nd December, 1942, the plaintiff instituted a suit for recovery of possession of the said premises being suit No. 1566 of 1942. Thereafter on the 28th January, 1943, the plaintiff was served with an order of requisitioning the said premises an and from the 2nd February, 1943. The said order inter alia provided that Sm. Sailabala Dassee executrix to the state of Kali Pado Barick of 194 Vivekananda Road, owner of the said buildings property should place the said buildings etc., property at the disposal and under the control of 1st Land Acquisition Collector, Calcutta, on and from the 2nd February, 1943, at 4-30 P.M. until six months after the termination of the war unless relinquished earlier and should furnish information relating thereto as may be required and the said Sm. Sailabala Dassi should not in any way dispose of the said property as long the order remained in force. The properties requisitioned were 122/3A and 122/4A, Upper Circular Road, being the properties which are the subject-matter of the present' litigation. The defendant's case as made out in his written statement is that he was also. served with a similar notice of requisition. The plaintiff's case is that he was alone served with, such requisition. I ought to state at this point of time that the defendant has not proved before me that any such order of requisition was in fact served on the defendant as well. But it appears that on the 30th January, 1943, the First Land Acquisition Collector, Calcutta, wrote to the defendant as follows: