SUKHAMOY ROY Vs. SALILANANDA BASAK

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent by the tenant-defendant (hereinafter referred to as defendant) and it arises out of a suit for eviction which has been concurrently decreed by the three Courts below. The only point which has been raised before us is with regard to the maintainability of the suit.

(2.) It is not in dispute that the plaintiffs respondents (hereinafter referred to as plaintiffs) acquired the premises of which the suit premises is a part by purchase from one Profullamoyee Dasi. The defendant who was a tenant in existence in a part of the premises so purchased became a tenant on attornment under the plaintiffs. The plaintiffs brought Title Suit No. 31 of 1957 for eviction of the defendant on the ground of default in payment of rent since May, 1954. In this suit the plaintiffs claimed the monthly rent payable by the defendant to be Rs. 20/-. The defendant appeared to contest but his defence having been struck off under Section 17 (3) of the West Bengal Premises Tenancy Act, the suit was decreed ex parte. It was so decreed on Sept. 5, 1957.

(3.) As and when the said decree was put into execution the defendant filed Title Suit No. 259 of 1958 for a declaration that the decree obtained in Title Suit No. 31 of 1957 by the plaintiffs was a fraudulent and collusive decree and for permanent injunction restraining the plaintiffs from executing the said decree for eviction. In making out the case of fraud in this suit the defendant pleaded that he was never a tenant on a monthly rental of Rs. 20/-; he was a tenant on a monthly rental of Rs. 12/- and that was settled in a S. C. C. Suit between the defendant and Profullamoyee, the predecessor-in-interest of the plaintiffs; that fact was known to the plaintiffs but even then they laid a false claim in Title Suit No. 31 of 1957 of default treating the monthly rent to be Rs. 20/-. According to the defendant, when he appeared to contest that suit, in view of the falsity of the claim the plaintiffs agreed to have the suit dismissed for non-prosecution on acceptance of Rs. 200/- paid to them and on a further agreement that after dismissal of that suit the parties would sort out the quantum of arrears, if any, exceeding the sum of Rs. 200/- so paid amicably between them; in terms of that agreement though a sum of Rs. 200/- was paid to the plaintiffs and though the defendant believing the plaintiffs' assurance that they would not proceed with the suit retired from the suit, the plaintiffs suppressed the said agreement and obtained an order striking out his defence on an application filed under Section 17 (3) of the W. B. Premises Tenancy Act the notice whereof was not served upon the defendant and in that process the plaintiffs fraudulently obtained the ex parte decree for eviction in Title Suit No. 31 of 1957. This suit of the tenant-defendant being Title Suit No. 259 of 1958 was contested by the plaintiffs who denied the material allegations of fraud or falsity of the claim.