SADHU SARAN PRASAD Vs. RABINDRA NATH SAHA

JUDGEMENT

(1.) This appeal at the instance of the defendant arises out of a suit for eviction on the ground of default and sub-tenancy. The suit was filed on 11-9-71, alleging inter alia that the defendant was in default in payment of rent from March 1971. The defendant appeared on 11-11-71. On 2-12-71, the defendant filed written statement. On 9-3-72, the defendant filed fresh power. On 3-7-72, the plaintiff filed a verified application under S.17(3) of the West Bengal Premises Tenancy Act and the defendant applied for time. On 26-9-72, the defendant filed a petition under S.17(2) of the Act with a fresh power. He also filed an application under S.17(2A)(b) on the same date as also an application under S.5 of the Limitation Act for condoning the delay in filing the application u/s.17(2) and 17(2A)(b) on 28-9-72. The said applications were heard on 3-4-73. The application for condonation of the delay in filing the application under S.17(2) and 17(2A)(b) was rejected. The application under S.17(3) of the Act filed by the plaintiff was allowed and the defence against delivery of possession was struck out. Thereafter, the suit was heard and a decree was passed on the ground of default. Being aggrieved by the said judgment the defendant preferred the present appeal.

(2.) Mr. Roy, on behalf of the appellant, contended that there was no cause of action for the suit and as such S.17 of the Act has no application. In our opinion, the suit was filed after service of notice for default. It is now too late in the day to argue that the suit must go as there is no cause of action. On making a default or subletting there is a cause of action under S.13(1) of the Act for the plaintiff to file a suit but it is always for the defendant to defend by filing written statement to controvert the statement made in the plaint. But in any case it is clear from the plaint there is a cause of action for filing the suit.

(3.) Next it is contended by Mr. Roy that the defendant having paid all the amount he has a right under S.114 of the Transfer of Property Act to avoid the forfeiture of the lease. In our opinion, when the West Bengal Premises Tenancy Act applies S.114 of the Transfer of Property Act, in so far as forfeiture against default is concerned, cannot be applied. It appears to us that even the Supreme Court goes to the extent in saying that it is not necessary for a landlord to give a notice under S.106 of the Transfer of Property Act for determination of the tenancy in view of the special provision of the West Bengal Premises Tenancy Act, in particular S.13(6) of the Act. In absence of such a provision the plaintiff landlord need not issue any notice determining the tenancy as no decree can be passed under a particular provision of the Act unless the landlord can bring his case within the four corners of the statute which controls the relationship between the landlord and the tenant in respect of the premises. Be that as it may, the Division Bench of our High Court in a case reported in (66) 70 Cal WN 676 overruled the Hon'ble single Judge's decision reported in 69 Cal WN 399 inter alia holding that S.114 of the Transfer of Property Act will not apply to matters coming under the West Bengal Premises Tenancy Act.