LALBHAI RAMJIBHAI Vs. A V SETH

JUDGEMENT

(1.) This appeal is at the instance of the defendant and it arises out of a suit for eviction. The case of the plaintiff is that the defendant, who had been a tenant under him in respect of the suit premises, is a defaulter in payment of rent and that he has been using the suit premises for a purpose other than for the residential purpose for which it was let to him. It is alleged that the plaintiff determined the tenancy of the defendant by the service of a notice to quit directing him to quit and vacate the suit premises on the expiry of the last day of September, 1963, on these allegations, the plaintiff had prayed for eviction of the defendant from the suit premises.

(2.) The defendant has contested the suit by filing a written statement. He has denied the allegation of default and also the allegation that he has been using the suit premises for a purpose other than for the purpose of dwelling for which it was let to him. It has been further alleged by the defendant that the notice to quit was not served upon him and that the same was insufficient to terminate the tenancy. The case of the defendant is that his tenancy commenced on and from February 14, 1960, and as such, the notice to quit having sought to determine the tenancy on the expiry of the last day of September 1963, is illegal and invalid in law.

(3.) The defence of the defendant against delivery of possession was struck out under Section 17 (3) of the West Bengal Premises Tenancy Act, 1953, inasmuch as he failed to comply with the provisions of Section 17 (1) or Section 17 (2) of the said Act. The learned Munsif, however, found that the defendant was a defaulter in payment of rent. He also found that the defendant has been using the premises for the purpose of his office although the same was let to him for residential purpose. On the question of notice, the learned Munsif found that the same was served upon the defendant, but he found that the notice to quit was insufficient inasmuch as the tenancy of the defendant commenced on February 14, 1960, and not on the 1st day of a month of English calendar. In view of his finding that the notice to quit was invalid, the learned Munsif dismissed the suit. There was an appeal by the plaintiff against the judgment and decree of the learned Munsif. The only point that was argued in the appeal on behalf of the plaintiff was as to the legality of the notice to quit. The learned Additional District Judge, 3rd Court, Alipore, came to the finding that although the tenancy commenced on and from February 14, 1960, there was an alteration in the month of the tenancy by mutual conduct of the plaintiff and the defendant. He has pointed out that the plaintiff realised rent for the broken period of the month of February, 1960 and thereafter, be had been realising rent month by month according to English calendar month and not from the 14th of a month to the 13th of the next month as held by the learned Munsif. The notice was accordingly held to be legal and valid. Upon the said findings, the learned Additional District Judge reversed the finding of the learned Munsif holding that the notice was illegal and invalid and decreed the suit for eviction.