SUKLA CHOWDHURY Vs. MANJOLYN TWEEDIE

JUDGEMENT

(1.) On the 11th of October, 1974 Srimati Sukla Chowdhury claiming to be the owner of premises No. 5, Kyd Street, Calcutta instituted Suit No. 491 of 1974 against the two defendants originally, namely. Miss Manjolyn Tweedie and Miss Shamin Tweedie. It is the case of the plaintiff that on or about 14th March, 1973 at the request of one Mrs. Sofie Tweedie, mother of the said defendants the plaintiff agreed to let out one room attached with bath room and the kitchen on the south-east corner of the ground floor of premises No. 5, Kyd Street, Calcutta to the said defendants on certain terms, inter alia, contained in paragraph 1 of the plaint filed. The said terms permitted the said defendants only to stay and occupy the said room and provided that the defendants should pay Rs. 225/- per month as rent on the 6th of every month according to English calendar, and the said defendants would have exclusive control and possession of the said room. It is further stipulated that the said defendants would return to the flat by 10 P. M. every night and that they should not create any nuisance nor carry on any illegal or immoral activities in the said flat. It was also stipulated that the said defendants would leave the flat when requested to do so by the plaintiff. It is the case of the plaintiff that pursuant to the agreement dated the 14th of March, 1973 the plaintiff delivered possession of the portion of the ground floor of the south-east corner of premises No. 5, Kyd Street, Calcutta. The said defendants took possession of the said flat and became a monthly tenant under the West Bengal Premises Tenancy Act. Then a few days after taking possession of the portion of the said premises, the defendants started coming late and creating nuisance and certain alleged acts of nuisance and alleged immoral activities are mentioned in the plaint. It is further stated that the said defendants failed and neglected to pay to the plaintiff rent since February, 1974 until the institution of the suit, as a result whereof, according to the plaintiff, the said defendants arc defaulters for more than four months in the course of twelve months and became liable to be evicted from the portion of the said premises under the provisions of the West Bengal Premises Tenancy Act. It is alleged that on the 1st December, 1973 the said defendants informed the plaintiff that they would vacate the flat on the expiry of the month of December, 1973, but in spite thereof they have not vacated the said premises. It is further alleged that they are staying in the said portion of the flat in violation of the terms of the agreement as trespassers. The plaintiff stated that the said defendants violated the provisions of Clause (m), Clause (o) and Clause (h) of Section 108 of the Transfer of Property Act, 1882 as a result whereof the said defendants and each of them became liable to be evicted from the said premises. The plaintiff has claimed rent @ Rupees 225/- per month from February, 1974 to September, 1974. The plaintiff has further claimed interest @ 12 per cent, per annum on the rent due from the respective due dates as and by way of damages. In the premises, the plaintiff has claimed Rs. 1,800/-on account of arrears of rent and Rs. 90/-on account of mesne profits and possession. The plaintiff has claimed decree for possession and mesne profits as mentioned in the plaint.

(2.) After the institution of the suit the plaintiff made an application for amendment and by an order passed by this Court on the 24th of March, 1975, the plaint has been amended by adding defendants Nos. 3, 4 and 5 as parties to the suit. Defendant No. 3 is the mother of the first two defendants and defendant No. 4 is the husband of the said defendant No. 3. It is stated in the amended plaint that defendants Nos. 3, 4 and 5 have wrongfully and illegally occupied a portion of the said premises as trespassers in violation of the agreement as aforesaid between the plaintiff and the defendants Nos. 1 and 2. The plaintiff has therefore claimed also possession from the said defendants. The plaintiff has valued the portion of the said premises and the suit at Rs. 54,000/- for the purpose of jurisdiction.

(3.) This is an application by the defendants Nos. 1 and 2 for several reliefs, namely -- that the plaint be returned to the plaintiff for presentation to the proper court, alternatively relief be given under Section 17 (2) and 17 (2-A) (b) of the West Bengal Premises Tenancy Act, 1956, time be allowed to ask for particulars and file the written statement. In this petition the defendants Nos. 1 and 2 have -set out the fact and have alleged that there is no relationship of landlord and tenant between the plaintiff and the defendants and that the suit according to the said defendants, did not disclose material particulars and was a gross abuse of the process of the court and was not maintainable in law. It is further stated that the legal tenant was the mother of the defendants who was regularly depositing the rent with the Rent Controller, Calcutta since February, 1974. It is further stated that this Court has no jurisdiction taking into account the provisions of Section 7 (xiii) (d) of the West Bengal Court-fees Act, 1970 read with Suits Valuation Act. According to the said petitioners the value of the suit would be Rs. 4590/- and inasmuch as the same was not within the jurisdiction of this Court, this plaint should be returned. In the alternative, it has been stated that this application should be treated as an application for extension of time for the deposit or payment of the amount as determined by this Court under Section 17 (2) and Section 17 (2-A) (b) of the Act.