DULAL CHANDRA SEN Vs. DULAL CHANDRA DAS

JUDGEMENT

(1.) This is an application for review of my judgment, filed in Court on February 2, 1965, under the provisions of Order 47, Rule 1 of the Code of Civil Procedure, passed in an appeal from appellate decree, which arose out of a suit for ejectment, on the ground of default, in which arrears of rent and mesne profits were also claimed against Tinkari, Defendant No. 1 and Dulal, the present Applicant, being minor then, as Defendant No. 2, represented by his mother Nirmala.

(2.) The Defendants, including the Petitioner, on the application by the Plaintiffs under Section 14(4) of the West Bengal Premises Rent Control Act, 1950, were directed to deposit a sum of Rs. 1064 towards the arrears of rent. As it was not put in, the defence against ejectment was struck out. A Rule, directed against the said order, was ultimately discharged by this Court. The suit was, thereafter, decreed by the learned Munsif. Two appeals were preferred one, by two other Defendants, namely, the said eldest son Tinkari and his mother Sm. Nirmala Sen jointly and the other by Dulal, the Defendant No. 2, the present Applicant. The decree of the Court of appeal below had dismissed both the said appeals. A second appeal by Tinkari and his mother to this Court was summarily dismissed under the provisions of Order 41, Rule 11 of the Code of Civil Procedure. The other second appeal, preferred by Dulal, the present Applicant, was allowed in part by me, by delivering a judgment, for review of which the instant application is made. I set aside the decree, passed by the Court of appeal below on account of arrears of rent including interest, as well as the decree for mesne profits. I sent the case back to the trial Court for passing a fresh decree in respect of above claims, keeping in view the subsequent order passed by the Rent Controller fixing the rent. The decree for ejectment, however, was affirmed by me.

(3.) Mr. A.D. Mukherjee, the learned Advocate in support of the application for review of the said judgment of mine, mainly contended that the notice to quit, non-compliance, of which gave rise to the suit, was insufficient and invalid and the suit should have been dismissed on the issue of notice alone. It is stated by Mr. Mukherjee that Mr. Lala, the learned Advocate, forgot to argue the said point at the time of arguing the appeal. Rather he 'missed and overlooked' the point. According to Mr. Mukherjee, as it is an error apparent on the face of the record, the provisions of Order 47, Code of Civil Procedure, should be invoked. He states that the Defendants are not joint tenants but tenants-in-common; and in the absence of the service of the notice on each of them the decree for ejectment should not have been affirmed by me.