USHA RANJAN BHATTACHARYA Vs. MAHALAKSMI THACKER

JUDGEMENT

(1.) This Rule is directed against an order dated 26th February, 1974 made in the Distraint Proceeding No. 396 of 1973 by the learned Judge, 6th Bench of the Court of Small Causes, Calcutta in an application under Section 60 of the Presidency Small Cause Courts Act which was filed against a proceeding initiated on an application under section 53 of the said Act.

(2.) At all material times the petitioner was and still is a tenant in respect of a room, being Room No. 26/2, at the first floor of premises No.35, Chittaranjan Avenue, under the respondents. The petitioner contended at the time of the hearing of the proceeding and still he contends in this Court that the monthly rent payable by him for the premises in question was Rs.99/- plus Rs.11/- on account of lift, scavenging charges, water and other services. Thus he has contended that he was required to pay a total sum of Rs.110/-. Such payment, it is an admitted fact, was also required to be made according to English Calendar month. The petitioner has alleged that by letters of 7th March, 1970 and 16th March, 1970 he was asked by the respondents not to pay rent and consequent to that he had suspended payment of rent. After more than a year, the respondents by their letter of 15th March, 1971 asked the petitioner to pay all the arrears and/or current rent. It has further been alleged by the petitioner that even in spite of his repeated request for setting the terms of payment of arrear and current rent nothing was done by the respondents, who in their turn insisted on payment of the arrear rents at a time. It has also been alleged that the respondents with the malafide intention and for the purpose of humiliating and harassing the petitioner got the Distraint proceeding for realisation of 12 months' rent for the period from 1st October, 1972 to 30th September, 1973 in Distraint Proceeding No.396 of 1973 and the total amount which was asked to be recovered by the said distraint proceeding was Rs.1,419.90 P. which was inclusive of costs. In the said Distraint proceeding the petitioner filed an objection under section 60 of the Act and deposited the sum claimed by the respondents with costs. He, interalia, objected that the distraint claimed at Rs.110/- as rent per month was bad, illegal and invalid and as such the same was liable to be set aside as the rate of actual rent in the instant case was Rs.99/- per month, payable according to English Calendar month and the rent which was claimed in the instant case at the rate of Rs.110/- per month was never payable by him. The petitioner averred that apart from Rs.99/- payable by him on account of rent he was required to pay a sum of Rs.11/- per month for the charges as mentioned hereinbefore and as such the amount, if any, on such charges cannot legally from part of rent and thus recoverable through the impugned proceedings.

(3.) The respondents in a reply contended that the petitioner was actually obliged to pay rent at the rate of Rs.110/- per month and not Rs.99/- as claimed. The further case of the petitioner was that by the letter dated 25th June, 1969 he agreed and rented from the respondents on terms of 20 years registered lease the premises in question on the basis of a draft effected on and from 1st July, 1969. He alleged that payment was made as per terms of the draft lease and a sum of Rs.440/- was paid as security deposit and a further sum of Rs.100/- was also paid towards preparation charges of the lease deed. He further alleged that he had purchased non-judicial stamp paper worth Rs.99.50 for the lease deed in question and handed over the same to the respondents. He further contended that he had executed the lease deed at the Registration Office at Calcutta and paid the registration costs. But the registration could not be completed on that day as the respondents did not turn up at the Registration Office to execute the deed. He contended further that the respondents undertook that they would execute the lease deed duly and conveniently and subsequently represented that the execution and registration were completed by him. The petitioner further alleged that he had accepted the said representations by the respondents as true and started making payment of rent at the rate of Rs.99/- per month and service charges at Rs.11/- per month.