SHIBANI RAKSHIT Vs. KRISHNA KUMAR BANERJEE

JUDGEMENT

(1.) This Court has heard the learned Advocates for the respective parties and has considered the relevant materials on record. The facts of the case, briefly, are as follows:

(2.) The defendant/respondent contested the said suit-by filing a written statement denying the material allegations made in the plaint. It may be noted here that in paragraph 8 of the plaint, the plaintiffs/appellants have alleged that the defendant/respondent did not pay rents since July, 2001 to the plaintiffs/appellants. In paragraph 15 of the plaint, the plaintiffs/appellants have alleged that the defendant/respondent and his wife Smt. Mita Karmakar (Banerjee) have another permanent suitable accommodation at 60, Simla Road, Calcutta - 700 006 of which the defendant's wife is the owner and as such the defendant does not require the suit premises for any purpose whatsoever. In paragraph 9 of the written statement, the defendant/respondent has alleged that the defendant/respondent duly tendered rent by money order and since the plaintiffs/appellants have refused to accept the same, the defendant/respondent has been paying rent regularly to the Rent Controller Office since the month of July, 2001. The defendant/respondent further pleaded that the plaintiffs/appellants have refused to accept rent in the month of July, 2001. In paragraph 13 of the written statement, the defendant/respondent has alleged, inter alia, that, the wife of the defendant/respondent is the owner of premises No. 60, Simla Road, Kolkata-700 006 but the entire premises is in occupation of the tenant and there is not a single vacant room in the said premises.

(3.) The suit came up for hearing when the parties adduced their respective evidence and the learned trial Court by its judgment and decree dated 26th July, 2004 dismissed the said suit upon a finding that the notice of suit was valid and sufficient and it was duly served upon the defendant/respondent but the plaintiffs/appellants have failed to prove any of the grounds taken in the plaint. The learned trial Court found that the defendant/respondent did not file any application under Section 7(2) of the said Act, 1997 and the D.W.1 did not depose in examination-in-chief that he is not a defaulter in payment of rent but from the Exhibits 'A' and 'B' series it appears that the defendant/respondent has been paying rent since the month of July, 2001 and, therefore, it can be held that there are no arrears of rent. The learned trial Court also found that the ground of nuisance and annoyance could not be proved by the plaintiffs/appellants. The learned trial Court also found that it has been admitted by the D.W.1 in his evidence that his wife is the owner of the premises No. 60, Simla Road, Kolkata-700 006 but such premises is under occupation of tenant and there is no vacant room in the said premises. The learned trial Court also found that the plaintiffs/appellants attempted to make out a third case while trying to prove that the defendant/respondent has accommodation at the said premises No. 60, Simla Road, Kolkata-700 006.