HARI SINGH Vs. DWARKIN AND SON, LTD.

JUDGEMENT

(1.) This is a suit for ejectment, arrears of rent and mesne profits.

(2.) The plaintiff's case is that the defendant was a monthly tenant under the plaintiff in respect of one large room being room No. 2 on the ground floor of the premises No. 11/A and 11 B, Esplanade Row East, at a rent of Rs. 695-12-0 per month. The time within which the rent was to be paid was not fixed by contract between the parties. The defendant is a habitual defaulter in payment of rents and he made default in payment of rent by not having paid or deposited two months' rent payable by him in accordance with the provision of the West Bengal Premises Rent Control Act, 1950, on three occasions within a period of 18 months. It appears from the particulars of default set out in paragraph 4 of the plaint that the rents for Sept., 1952, to Feb., 1953, were paid either on the 17th or 19th of the month succeeding the months for which the rents were due and there was, therefore, no arrear of rent outstanding at the date of the suit, in respect of these months. It is also alleged in the plaint that the defendant has not paid the rents for March and April, 1953, but it appears that the rents for these two months have been deposited by the defendant with the Rent Controller, Calcutta, and the learned counsel appearing for the plaintiff has stated before the Court that he does not rely on the defaults pleaded in paragraph 5 of the plaint as a ground for obtaining a decree for ejectment in this suit. It appears that a notice to quit dated 11th April, 1953, was served upon the defendant calling upon him to vacate the room on the expiry of the month of April, 1953, but the defendant continues in wrongful occupation of the same.

(3.) In the written statement filed by the defendant it is denied that the defendant committed any default in respect of the payment of rent and it is further stated that by reason of the plaintiff or his agent accepting the rents for the months of Sept., 1952, to Feb., 1953, without raising any objection after the due date the plaintiff had waived the breach, if any, and is estopped from complaining about the alleged defaults. It is also stated in the written statement that there was verbal agreement between the parties by which it was stipulated that the rent for a particular month would be payable in the succeeding month on the date the plaintiff would send his agent or servant to collect the same from the defendant. But this defence as to the oral agreement has been given up at the time of hearing of this suit. The following Issues were raised at the hearing:-