AMAR CHANDRA ROY Vs. SUSANTA KUMAR SEN

JUDGEMENT

(1.) THIS is an appeal by the defendants appellants in a suit instituted by the plaintiff respondent for eviction of the appellants from the suit premises. The plaintiff respondent filed on April 7, 1964, the suit being Title Suit No. 147 of 1964 which on transfer was renumbered as Title Suit No. 389 of 1964 and was heard by the learned Munsif, Second Additional court at Alipore. The allegations were that the appellant No. 1 was a tenant in the suit premises held at a monthly rent of Rs. 65/- payable according to English calender month. The said appellant having defaulted in payment of rent and being in arrears since September, 1963, the tenancy was determined by a notice to quit. The appellant No. 2, who is a brother of the appellant No. 1, was made a party in. the suit to meet a possible defence that, he was the tenant as the rent in respect of the suit premises had been paid for sometime past by him on behalf of the appellant No. 1. A decree for khas possession on eviction of the appellants form the suit premises and for mense profits was prayed for accordingly.

(2.) THE appellants filed a joint written statement denying the material allegations in the plaint and contended inter alia that the suit was not maintainable, that the respondent had no right to sue, that the appellant No. 1, who was the tenant, was not a defaulter in payment of rent and that he should be deemed to be a direct tenant as the superior landlords had instituted a suit for eviction of the respondent from 6, Hindustan Road, Calcutta which included the suit premises.

(3.) IT appears that the respondent filed an application on July 14, 1964 under section 17 (3) of the West Bengal premises Tenancy Act, 1956 (hereinafter referred to as the principal Act)praying for an order for striking out the defence of the appellants against the delivery of possession. The appellants filed a written objection to the same. On November 16, 1964 the said application was allowed exparte and the defence of the appellants against the delivery of possession was struck out. Thereafter the suit was heard on december 4, 1964 when it was decreed exparte.