DEBABRATA MUKHERJEE Vs. KALYAN KUMAR RAY

JUDGEMENT

(1.) This is an appeal by the plaintiff and is directed against the judgment and decree dated November 24, 1981, passed by the learned Judge, 2nd Bench, City Civil Court, Calcutta in Title Suit No. 999 of 1980. That was a suit under Section 49 of the Presidency Small Cause Courts Act, 1882 as adopted for the State of West Bengal. By the judgment under appeal, the learned Judge has dismissed the suit on a preliminary issue holding the suit to be barred by principles of res judicata and the only point raised now before us is how for the learned Judge is right in his conclusion as such. It would be necessary to refer to the facts with reference to which such a plea was raised and those are set out shortly as fellows :

(2.) The defendant-respondent Kalyan Kumar Roy (hereinafter referred to as the defendant) was admittedly the tenant in respect of the suit premises, being Suit No. 18 on the 3rd floor of premises No. 26, Chowringhee Road, Calcutta, under the Official Trustee of West Bengal as the Trustee to the Trust Murshidabad Estate (hereinafter referred to as the Official Trustee). In the year 1974, the Official Trustee instituted Ejectment Suit No. 1152 of 1974 against the defendant on two-fold grounds of default in payment of rent and wrongful subletting of the suit premises without the written consent of the landlord. In the plaint, the Official Trustee pleaded that the combined notice to quit and a notice of suit was duly served upon the defendant by registered post when such notice was accepted by one Mrs. P. Maitra for and on behalf of the defendant on February 12, 1974.

(3.) The defendant in contesting the suit denied all the material allegations including the allegation of default and subletting. The defendant also catefiori- cally denied service of the notice. In a proceeding under Section 17 (2) of the West Bengal, premises Tenancy Act, the defendant however, deposited all the arrears of rent in order to entitle him to claim relief under Section 17 (4) of the West Bengal premises Tenancy Act.