AJIT KUMAR SEN GUPTA Vs. BAIJNATH SOMANI

JUDGEMENT

(1.) THE defendant of the trial Court, Ajit Kumar Sen Gupta was a tenant under the plaintiffs in respect of some premises described in the plaint. The plaintiffs instituted a suit for eviction against the defendant after service of a notice to quit on the ground that the disputed premises, which consisted of a flat, were required by the plaintiffs for the purpose of building and rebuilding. The defendant contested the suit by filing a written statement. Several objections were taken in the written statement against the claim of the plaintiffs, the principal objections being that no legal or valid notice to quit was served upon the defendant and that the disputed flat was not required by the plaintiffs for the purpose of building and re-building.

(2.) THE suit was instituted after the West Bengal Premises Tenancy Act. 1956 (West Bengal Act XII of 1956) (which shall henceforth be described as the Act) had come into operation. During the pendency of the suit in the Trial Court, an application under section 17 (3) of the Act was filed on behalf of the plaintiffs on the allegation that current rent had not been deposited by the tenant according to the provisions of sec. 17 of the Act. A prayer was made by the landlords plaintiffs for striking out the defense of the defendant against delivery of possession. This application was heard by the Trial Judge in the presence of both parties, and it was allowed on 6th January, 1958, and the defense of the defendant against delivery of possession was struck out, and the suit was adjourned to 21st January, 1959, for ex parte hearing. It thug appears that the Trial Judge no only struck out the defense of the defendant against delivery of possession, but struck out the whole defense by passing an order that the suit should be heard ex parte. The suit was thereafter heard ex parte on 21st January, 1958, and it was decreed.

(3.) THE tenant preferred an appeal from the ex parte decree passed by the Trial Judge. The learned Chief Judge who heard the appeal allowed the appeal in part. He was of opinion that the defense of the defendant in so far as it related to delivery of possession was rightly rejected, but there remained the other part of his defense, namely, whether a valid and sufficient notice to quit was served upon the tenant. The learned Chief Judge further held that it was open to the defendant to press this part of the defense. He, therefore, remanded the suit in part to the Trial Judge giving a direction that the parties should be allowed to produce relevant evidence relating to the question of service of notice and its validity and sufficiency. The learned Chief Judge further directed that the suit should be decreed if the Trial Judge found that the notice had been properly served and it was valid and sufficient, but he should dismiss the suit if the finding was to the contrary.