CHAITALI SIKDAR Vs. SUBHENDU GUPTA

JUDGEMENT

(1.) This first miscellaneous appeal, at the instance of the plaintiff in an eviction suit is directed against the judgment and decree dated December 18, 2014 passed by the learned Civil Judge (Senior Division), Bolpur, at Birbhum, in Title Appeal No. 18 of 2013, thereby reversing the judgment and decree dated January 29, 2013 passed by the learned Civil Judge (Junior Division), 1st Court at Bolpur and remanding the eviction suit to the learned trial Judge on open remand.

(2.) I consider it to be convenient to refer to the parties by their array before the trial Judge. The brief facts required to be considered for deciding this appeal are that the plaintiff filed the suit, being Title Suit No. 45 of 2007 before the learned Civil Judge (Junior Division), 1st Court, Bolpur, Birbhum against the defendant claiming a decree for eviction and recovery of possession of the suit property situate at Mouza Bolpur, JL No. 9, Khatiyar No. 288, Plot No. 8619, Post Office Bolpur, District Birbhum. It was the plaint case that in terms of the agreement dated May 07, 2005 entered into between the parties, the plaintiff inducted the defendant as a monthly tenant in respect of the suit property, at a monthly rental of Rs. 1500/- per English calendar month. From the month of October, 2006 the defendant failed to pay the monthly rent of the suit property to the plaintiff. By a notice dated August 28, 2007 issued under Section 6(4) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as "the Act of 1997"), the plaintiff called upon the defendant to vacate the suit property with the expiry of the month of September, 2007 and in spite of the receipt of the said notice the defendant refused to vacate the suit property. Therefore, the plaintiff filed the suit seeking eviction of the defendant of the suit property, inter alia, on the grounds of default of payment of rent, reasonable requirement of the suit property for her own occupation and for her family and that defendant unlawfully caused change in the nature and character of the suit property. After the service of the writ of summons the defendant entered appearance in the suit and from March, 2008 in every month he went on filing applications before the learned trial judge to deposit the monthly rent of Rs.1,500/- and deposited the monthly rent of the suit property in the trial court. The defendant also filed an application under Section 7(2) of the Act of 1997 for determination of arrear rent, if there be any. Along with the said application the defendant deposited the arrear monthly rent of six months from July, 2007 to January, 2008 amounting to Rs.9,000/-, together with the statutory interest at the rate of 10%. He also filed an application under Section 151 of the Code for early disposal of the said application under Section 7(2) of the Act of 1997. The learned trial Judge found that the defendant had filed the said application after the expiry of the statutory period and without any application under Section 5 of the Limitation Act for condonation of delay. Therefore, by an order dated May 25, 2009, the learned trial Judge rejected both the said applications under Section 7(2) of the Act of 1997 and Section 151 of the Code. The defendant challenged the said order dated May 25, 2009 by filing a revisional application, being C.O. 3062 of 2009 before this Court. By an order dated December 07, 2009 a learned Single Judge of this Court upheld the said order dated May 25, 2009 passed by the learned trial Judge and rejected the said revisional application. The defendant did not challenge the said order dated December 07, 2009 in any higher forum. The defendant filed his written statement denying all material allegation made in the plaint, including the grounds of his eviction urged by the plaintiff. After the trial of the suit had commenced and the examination of chief of the plaintiff's witness was over, the defendant filed another application under Section 7(2) of the Act of 1997 and by an order dated November 19, 2010, the learned Trial Judge rejected the said application on the ground of dismissal of the defendants' earlier application under Section 7(2) of the Act of 1997 which was upheld by this Court.

(3.) Thereafter, on consideration of the averments made by the parties in their plaint and the written statement, respectively the learned trial Judge framed the following issues: