NIRMALENDU BASU Vs. NILIMA CHETTARJEE

JUDGEMENT

(1.) This appeal has been directed against the judgment and the decree passed by an Additional District Judge, Howrah in Tide Appeal No. 495 of 1965 setting aside the dismissal of the original suit by a Munsif at Howrah in Title Suit No. 61 of 1963. The appellants are the successors-in -interest of the original defendant duly substituted during the appellate stage.

(2.) The respondent before this Court Nilima Chatterjee started the original suit for eviction and for mesne profits again st the defendant Nandial Bose, a tenant of hers in respect of the suit premises. The plaintiff purchased the suit property from her vendor under whom Nandalal Bose was a tenant in respect of the suit properties at a monthly rental of Rs. 21/- payable according to English Calendar month. During the time of the plaintiff's vendor, the defendant became a defaulter in payment of rent from the month of May, 1961 onwards. After purchase in December, 1962, the plaintiff served a notice upon the defendant to quit on the expiry of the month of February, 1963. The ground of eviction was the default in payment of rent on the part of the defendant-tenant from May, 1961 till the end of February, 1963. The defendant appeared and filed a written statement denying all material allegations. In particular, the defence was that the notice to quit was invalid and insufficient as the entire premises under the tenancy was not described in the notice. It has also been pleaded that as the defendant was dispossessed from the first floor of the premises under threat of criminal prosecution and coercion by the vendor of the plaintiff with the help of the Howrah Municipality, the landlady is not at all entitled to any rent unless the defendant is put into possession of the major portion of the suit premises from which the tenant has been dispossessed. The defendant has characterised the dispossession of the tenant from the portion of the suit premises as a mala fide action. According to the defendant, the suit is liable to be dismissed.

(3.) The learned trial court on con-sideration of the evidence found that the defendant had to vacate the first floor rooms of the premises under the tenancy as the said room became ruinous and precarious and were in urgent need of repair. It has also been found by the learned Munsif that the rooms on the first floor have not yet been repaired and restored to the defendant. The learned trial court has further found that the arrears of rent during the regime of the plaintiff's vender cannot be made use of by the plaintiff. The findings of the trial court are that the defendant was not a defaulter and that the suit is bad for partial eviction because the entire premises under tenancy has not been included in the suit. At the dismissal of the suit by the trial court, an appeal was taken by the plaintiff which was ultimately disposed of by the Additional District Judge, Howrah. According to the first appellate court below, the evidence on record has proved that the entire tenancy has been included in the suit and that the suit was not bad for partial eviction. On the question of default, the learned Additional District Judge on consideration of several decisions has come to the finding that the plaintiff will be entitled to get the benefit of default made by the tenant in respect of payment of rents during the time of her vendor, the previous landlady of the defendant. On the question of dispossession of the tenant by the previous landlady, the learned Judge has come to the conclusion that there is evidence on record that the first floor rooms required repairs and that it has been established that the respondent does not possess those first floor rooms. According to the learned Judge below, when the tenant became unable to possess a portion of the premises under tenancy, as the same became unfit for use for want of repairs, he is not entitled to suspension or abatement of rent. On the above findings, the court below found that the defendant was a defaulter in payment of rent from May, 1961 onwards. The appeal was, therefore, allowed and the suit was decreed. Against this decision of the appellate court below, the instant appeal has been filed,