REKHA MUKHERJEE Vs. ASHISH KUMAR DAS

JUDGEMENT

(1.) This Rule is directed against Order No. 70 dated 25.1.84 passed by the learned Munsif, 1st Court, Alipore, in Title Suit No. 412 of 1977. By the aforesaid order, the learned Munsif has allowed an application for amendment of written statement made by the defendants-opposite parties. It appears that the said Title Suit was instituted by the plaintiff-petitioner, Mrs. Rekha Mukherjee for eviction of the predecessor-in-interest of the substituted defendant-opposite parties, Manick Chandra Das, and for mesne profits and for recovery of arrears of rent on the contention that the plaintiff was the owner of the disputed properties appertaining to premises No. 77/1, Hazra Road, within Police Station Tollygunge, in the district of 24-Parganas, and by a registered deed of lease dated 1st April, 1959 executed between the plaintiff on the one hand and the original defendant Manick Chandra on the other, the said defendant had taken tenancy of the aforesaid land fully described in the schedule to the plaint for 15 years commencing from 1st April, 1959 and ending with 31st March, 1974. It was, inter alia, 1959 to 31st March, 1967 the rent would be Rs. 210/- per month payable according to the English Calendar month and for the remaining seven years from the 1st April, 1967 to 31st March, 1974 the rent would be Rs. 250/- per month payable according to the English Calendar. The plaintiff contended that the defendant had defaulted in making payment of rent and the period of lease had expired with the efflux of time and as such the plaintiff was entitled to recover possession and to arrears of rent and manse profits.

(2.) The said suit was contested by the defendant Manick Chandra Das, who had filed a written statement, inter alia, denying allegations made in the plaint and it was contended that the suit was not maintainable because the defendant was a thika tenant and the suit not having been filed under the provisions of the Thika Tenancy Act, the plaintiff was not entitled to any relief whatsoever. The defendant had stated in the written statement that ever since 1343 B.S. the defendant had been carrying on business of Motor repairing in the disputed land by raising a valuable structure at his own costs and from time to time the lease for thika tenancy was given by the landlord and although it was agreed that there would be two leases, one for eight years and another for seven years, the landlord by exercising fraud and misrepresentation had brought into existence one composite lease for fifteen years so that the Calcutta Thika Tenancy Act was not applicable in respect of the said lease for fifteen years. The defendant had contended that the stipulation for different rent for eight years and seven years would indicate that there were agreements of thika tenancy for the said periods and the amalgamation of thika tenancy for the said periods and the amalgamation of the said period in one composite lease was made by the landlord by practicing fraud and misrepresentation on the defendant. It is not necessary at this stage to refer in details to the other contentions raised in the written statement.

(3.) It appears that at the instance of the defendant, a preliminary issue was raised as to whether or not the suit was maintainable. It appears that the learned Munsif had come to the finding that although the last lease was for about 15 years, the said lease was really an amalgamation of two leases for eight years and seven years and as the defendant was a Thika tenant, at the inception and has continued as a Thika tenant, the last lease for fifteen years did not alter the position and the defendant must be treated to be a Thika tenant and as such the suit for eviction was not maintainable in civil court. The plaintiff thereafter preferred an appeal against the said decision of the learned Munsif and the learned Additional District Judge in disposing of the said appeal had come to the finding that as the lease was for 15 years, the defendant could not claim any benefit under the Thika Tenancy Act because he was not a 'Thika Tenant' within the definition of section 2(5) (b) of the Calcutta Thika Tenancy Act 1949. The learned Additional District Judge had also come to the finding that the said lease was not the amalgamation of two leases as contended by the defendant but the said lease was one composite lease for 15 years. The learned Additional District Judge, however, came to the finding that although the suit was maintainable in the civil court and although the defendant was not entitled to claim any benefit as a Thika tenant in view of the said lease for 15 years, the plaintiff was not entitled to get a decree of eviction and other consequential relief's unless the validity of the lease could be determined by the court. The court of appeal below was of the view that in the absence of specific issue being framed about the validity of the lease for 15 years in view of the contention of the defendant that such lease was vitiated by fraud and misrepresentation, it was not possible to decide the suit. For the aforesaid purpose, the judgment of the trial court was set aside and the suit was sent back on remand for the purpose of determining, by the trial court, on evidence as to whether or not the allegation of the defendant that the execution of the lease by the defendant on 1st of April 1959 for 15 years was not a voluntary act on his part but the same was a result for misrepresentation fraud and/or under influence. The court of appeal below directed that in the light of the said observation a specific issue should be framed and the said question should be decided and if it is found that the allegation of the defendant was correct then the lease dated 1st April 1959 would not be binding on him because the same would be vitiated by misrepresentation and undue influence and, accordingly, the defendant would be treated as Thika tenant by holding over after the expiry of the previous lease dated 8th May 1951 with effect from 1st April 1959 by payment and acceptance of rent and in that event the instant suit in the civil court would not be maintainable. If on the other hand, the finding of the trial court after remand on the said issue to be framed by the trial court would go in favour of the plaintiff then the suit would be maintainable in the civil court and the trial court would then dispose of the suit by giving the plaintiff such relief's as the plaintiff would be entitled to. It also appears that against the said decision of the appeal court, the defendants namely the substituted heirs of Manick Chandra Das preferred an appeal before this Court but the said appeal was summarily dismissed under Order XLI, Rule 11 of the Code of Civil Procedure. It also appears that the defendants made an application under Section 19 of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981, on the contention that under the said provisions of Section 19, the suit had abated. The said application under Section 19 made by the defendants as rejected by the trial court and revisional application was also moved before this court whereupon Civil Order No. 9094 of 1982 arose. It appears that this Court also dismissed the said revisional application under Section 115 of the Code of Civil Procedure made by the defendants on the ground that suit was not instituted under the Calcutta Thika Tenancy Act 1949 and as such there was no occasion for abatement of the suit under the provisions of Section 19 of the Calcutta Thika Tenancy Act. In disposing of the said revisional application, this court has also considered the finding made by the court of appeal below in sending the suit back on remand before the trial court. After the said suit had been sent back on remand before the trial court, the defendants made an application for amendment of written statement. Such application of the defendants for amendment under Order VI, Rule 17 read with Section 151 of the Code of Civil Procedure has been annexed to this revisional application being Annexure 'E'. It has been stated in the said amendment, application that by virtue of amendment of Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981, certain rights have been conferred upon the thika tenants and the jurisdiction of the court has been taken away and the defendants are therefore entitled to get the benefits of the amended provisions of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981 and also the provisions of the Calcutta Thika Tenancy Act, 1949 before such amendment and the defendants are entitled to claim as thika tenant sand "in order to avoid all the shorts of controversy and for the purpose of fair adjudication of the dispute between the parties, certain facts are to be incorporated in the written statement by way of amendment of the written statement or by filing additional written statement." A schedule of the proposed amendment and/or the additional written statement has been given in the said application for amendment and the said schedule of amendment is set out hereunder for the purpose of appreciating the contentions made by the respective parties at the hearing of this revisional application. "Schedule of amendment" (a) That after paragraph 6 of the written statement another paragraph is to be incorporated to the following words :-