KRISHNA CHANDRA BANERJEE Vs. CHANCHALA DATTO

JUDGEMENT

(1.) This rule was obtained by the defendant petitioner Krishna Chandra Banerjee tinder Section 115 of the Code of Civil Procedure and under Article 227 of the Constitution of India. It was directed against an order of the learned Judge of the City Civil Court dismissing the defendant's application for stay of the suit under Section 6(2) of the Indian Soldiers (Litigation) Act, 1925. The important point of law raised on this Rule is the interpretation and scope of the Indian Soldiers (Litigation) Act.

(2.) The controversy arose out of an ejectment suit filed in 1961 by the plaintiff-opposite party against the defendant-petitioner for his ejectment from premises No. 109 Sitaram Ghosh Street, Calcutta. These were the only two parties to the suit, namely, the plaintiff-opposite party and the defendant-petitioner before us. The rent payable was only Rs. 65 per month. A notice of ejectment was given on the 19th June 1961. The grounds of ejectment were requirement of the plaintiff for her own use and occupation and for use and occupation of the members of her own family consisting, inter alia of herself, husband, a son aged about 5, a daughter aged about 9. years and husband's six brothers of whom two were married. It was alleged in the plaint that there was acute shortage of accommodation for the plaintiffs family. The other ground for ejectment was that the defendant was a defaulter in payment of rent since April 1961. It was this suit that the defendant wanted to stay

(3.) The grounds of stay put forward by the defendant-petitioner may be briefly summarised. Though the defendant is a tenant, yet in fact M/s. Banerjee Bros., a partnership firm of which the defendant was a partner was carrying on business in the premises in suit and that partnership business was said to be the real beneficial owner of the tenancy right. Next it was alleged that Capt. R. P. Banerjee. A. M. O. 89 Field Ambulance C/o 56 A. P. O. is one of the two brothers of the defendant and that brother who is not a party to the suit submitted a petition through the O. C. 89 FD AMO stating inter alia that he was in active military service in the Held and his family consisting of his wife and two children were residing in the suit premises which was the joint residence of their family for more than 25 years and that his whole family would be totally stranded and thrown on the street if they were evicted from the premises in suit. The brother defendant-petitioner says that this Capt. Banerjee had taken these steps independently of him and without referring to him.