SITARAM GUPTA Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) This is a suit for a declaration that the plaintiffs are the tenants of one shop-room and two ledges in stall No. 2 of Block P of the College Street Market, Calcutta, and they are entitled to remain in possession thereof as such tenants, for an injunction restraining the defendant, its servants and asents from in any way interfering with the plaintiffs' possession of the said shop and the said ledges and for specific performance of an agreement to allot and let out the said shoproom and the said ledges to the plaintiffs.

(2.) Mr. B C. Dutt, the learned counsel for the defendant, has raised two preliminary issues as to the maintainability of this suit. The issues are: 1. Is this suit maintainable in the absence of notice under Section 538 Calcutta Municipal Act, 1923? 2. Have the plaintiffs any cause of action against the defendant? It is agreed that I shall decide these preliminary issues first and for the purpose of these issues the farts alleged in the plaint are admitted

(3.) The case of the plaintiffs as laid in the plaint is that the plaintiffs are occupying since 1933 one shoproom and two ledges in stall No. 2 of Block F of the College Street Market. Calcutta. The stall consists of one shoproom and three ledges The College Street market belongs to the Corporation of Calcutta and Is managed through the Superintendent of the said market. The said stall was permanently allotted and leased by the Corporation in 1933 to one Mohammed Jamal Khan and Baijnath Shaw in consideration of payment of an initial rent of Rs. 450/- and daily rent of Rs. 2/8/- in respect of the said entire stall No. 2 in Block F. Md. Jamal Khan and Baijnath Shaw immediately thereafter sublet the shoproom and two of the ledges to the plaintiffs, and the other ledge to one Kali, Charan Gupta. The Corporation was at all material times aware of the subletting to the plaintiffs but never objected thereto and continued to receive and accept, rents from Md. Jamal and Baijnath and also granted trade and other licences in the names of the plaintiffs in respect of the said stall. Although during the communal riots of August 1946 the plaintiffs were prevented from occupying the said stall and carrying on business there, they regularly paid all rents in respect thereof to Mohd. Jamal and Baijnath and since January 1948 they deposited all rents with the Rent Controller upon Mohd. Jamal and Baijnath refusing to accept rents from the plaintiffs. Thereafter the said Mohd. Jamal and Baijnath failed and neglected to pay rents to the Corporation whereupon the Corporation through the Superintendent demanded the rent from the plaintiffs. Notwithstanding the fact that the plaintiffs had deposited all rents due from them with the Rent Controller, they offered to pay all arrears of rent due from Mohd. Jamal and Baijnath if the Corporation allotted and leased the said shoproom and ledges directly to the plaintiffs. The Corporation through the said Superintendent duly accepted the said offer and agreed and undertook to allot and lease the shoproom and the ledges to the plaintiffs at a rent of Rs. 2/8/- per diem. In performance of the said agreement the plaintiffs on or about 25-12-1948 paid to the Corporation through the said Superintendent the entire amount of the arrears of rent being the sum of Rs. 2462/12/- and the Corporation through the said Superintendent accepted the said amount and granted a receipt therefor. The plaintiffs thereafter tendered the rents at the agreed rate through the said Superintendent but the latter put off the acceptance of such rent from time to time. Thereafter on, 25-6-1349 the said Superintendent with certain employees of the Corporation attempted to oust the plaintiffs forcibly from the shoproom and the ledges in breach of the said agreement and undertaking but was prevented from doing so by the members of the general public. The Corporation threatened to evict the plaintiffs in breach of the said agreement and undertaking and so it is necessary that it should be restrained by an injunction. The plaintiffs are ready and willing to pay rent to the Corporation and to perform their part of the said agreement but the Corporation is denying and is interested to deny the validity of the said agreement and the right of the plaintiffs to remain in occupation of the said shoproom and the ledges.