SMT. ROMA GHOSH Vs. MADAN LAL BOTHRA

JUDGEMENT

(1.) The present suit has been filed principally for declaration that the defendant is obliged to pay rent at the prevailing market rate in respect of the suit premises of Rs. 18000.00 per month or at such rate as may be determined by this Honourable Court, with the provision for escalation as contained in clause 2(a) of the said deed of lease. Alternatively, the market rate of rent as payable under Clause 2 of the deed of lease for a period of 21 years commencing from 1st May 1992, that may be fixed and determined by the Honourable Court, having regard to the prevailing rate of rent and the defendant be directed to execute the deed of lease for a term of 21 years from 1st May 1992, at such rate of rent as may be fixed by this Court; in default of executing and registering the lease by the defendant in terms of prayer (b) above; the Registrar Original Side of this Honourable Court be directed to execute and register the said lease for and on behalf of the defendant; decree for recovery of possession of piece of land measuring about 100 sq.ft. on the western and northern side of the suit premises No. 123 Bidhan Sarani Calcutta 700004 and decree for Rs. 10,76,296/- as claimed in paragraph 25 of the plaint and mesne profit. The fact of the suit as stated in the plaint is shortly put hereunder :

(2.) One Shri Probhat Kumar Ghosh, since deceased as a lessee and predecessor in interest of the plaintiff by and under a registered indenture of lease dated 6th May, 1971 (herein after referred to as the said lease) demised unto and in favour of the defendant a portion of the ground floor of the premises No. 1/23, Bidhan Sarani Calcutta 70004 comprised of an area of more or less 1010 Sq.ft. and 8 sq. inches more or less (hereinafter referred to as the said suit premises) at monthly lease rent of Rs. 760.00 with provision for enhancement at every 5 years as stipulated in the lease deed. The lease was originally for a period of 21 years commencing from 1st May 1971.The said lease deed contained various clauses including that of renewal under which the defendant/lessee is entitled to opt for on the same terms and conditions except the rent reserved therein, which shall be re-fixed at the rate then prevailing or as may be agreed upon by the parties. On 16th Nov. 1983 the original lessor died and before his death the said deceased executed his last will and testament dated 11th July 1981, whereby and whereunder the said lessor granted absolute life interest in favour of the plaintiff in respect of the suit premises and further the plaintiff was appointed executrix thereof. The plaintiff duly obtained probate of the said Will from this Honourable Court in or about 1988.The defendant wrongfully trespassed unto and took wrongful possession of an open land of 100 sq.ft. On the western and southern side of the tenanted room without the knowledge and consent of the lessor and/or the plaintiff. The wrongful construction was made by the defendant on the said open land without sanction of the Kolkata Municipal Corporation in violation of the provision of the said Act, the rules and bye laws framed thereunder. The defendant despite demand failed and neglected to demolish the said unauthorized construction. Because of unauthorized construction and act of waste committed by the defendant, the plaintiff suffered loss and damage assessed at Rs. 2, 20,000.00. The plaintiff is entitled to claim recovery of possession of said piece of land adjoining to the demised portion with mesne profit of Rs. 5,000.00 per month. On the expiry of the aforesaid period of 21 years of lease, the defendant/lessee is entitled to obtain renewal thereof as may be agreed upon by the parties at such rate of rent that shall be prevailing in the market at that point of time. The plaintiff accordingly called upon the defendant to inform whether he was interested in obtaining renewal of the lease and also the rate of rent, at which he was agreeable. No reply was given. Since the defendant failed to express his willingness to obtain renewal of the said lease he was not entitled to remain in possession of the said portion. Accordingly the plaintiff demanded of the defendant to quit, vacate and to deliver up peaceful and vacant possession of the said premises upon expiry of the lease. Ultimately by a letter dated 29th Oct., 1992 the defendant requested the plaintiff to execute deed of renewal in his favour for a period of 21 years with effect from 1st May, 1992 on the terms and conditions of the previous lease dated 6th May, 1971, pending fixation of rent by negotiation. With the said letter the defendant forwarded a cheque for Rs. 1116/- of the same date towards the payment meant for the month of April 1992. However, the plaintiff refused to accept this payment and returned the same to the defendant. Both the plaintiff and the defendant sat for negotiation for fixing monthly rent payable on renewal of the said lease, however the parties failed to agree upon any rate, as such the present suit has been filed for fixation of rate of rent which is being claimed by the plaintiff at the rate of Rs. 18.00 per sq.ft. aggregating to Rs. 18,000.00 per month from 1st May 1992.

(3.) The defendant has filed written statement and denied the material allegations contained in the plaint. The defendant has specifically stated that enhanced rate of rent on renewal will not exceed Rs. 21.00 per sq.ft. per month.