DURGA RANI DEBI Vs. SHIB CHANDRA DAS

JUDGEMENT

(1.) THIS appeal at the instance of the plaintiff-appellant arises out of a suit for ejectment of the defendant on the ground of default and reasonable requirement. The plaintiff is the deity represented by the shebait. The plaintiff's case is that the defendant is a monthly tenant under the plaintiff in respect of two rooms and a cooking space on the ground floor of premises No. 85, Durga Charan Mitra Street, Calcutta, at a monthly rental of Rs. 48-50 np. payable in advance according to the English Calendar month. Tie plaintiff's further case is that the defendant was a defaulter in payment of rent since 1962 till the date of suit, i. e. 1966 and further the plaintiff required the premises in question for his own use and occupation. The notice determining the tenancy and the notice of suit were served on the defendant. The defendant not having vacated the premises, the suit was filed. The defendant contested the suit by filing a written statement denying the default or the ground of reasonable requirement. The defendant admitted the service of adjustment notice but contended that it is not legal and valid. A decree was eventually passed against the defendant by the Judge, City Civil Court on 26th March, 1966. The defendant preferred an appeal in this Court which was disposed of by this Court in the following terms :

(2.) DURING; the pendency of the appeal in this Court, West Bengal Premises Tenancy (Second Amendment)Act, 1969 came into force and within the period limited under section 17d of the West Bengal Premises Tenancy second Amendment) Act, 1969, the application was filed' by the defendant for setting aside the ejectment decree passed in Adjustment Suit No. 621 of 1964. The said application however was not disposed of by the learned judge as the appeal was pending in this court. The application under section 17d of the Act was taken up for hearing and disposed of by the learned judge, City Civil Court setting aside the decree passed by the Court below on the ground of default. The said order was passed on 2nd April, 1973. Being aggrieved by the said order, the plaintiff-appellant filed the present appeal.

(3.) MR. Dutt on behalf of the appellant contended firstly that when the appeal was disposed of by this Court the decree passed by the Trial Court on 26th March, 1966 merged in the appellate Court decree and therefore it is argued by Mr. Dutt that section 17d in terms does not apply as the decree was after the date of coming into force of the West Bengal Premises Tenancy (Second Amendment) Act. 1969. It is argued that section 17d will on1y apply in cases where the around in the suit is for default and not on other ground and therefore in the present case, apart from the ground of default, there was a ground of reasonable requirement and therefore section 17d has no application in the facts of the present case.