A tenant cannot terminate a statutory tenancy by giving notice to quit under Section 13 (1) (j) of the West Bengal Premises Tenancy Act, 1956.

( 1 ) THIS is an appeal by the defendant against a judgment of affirmance. The facts as stated in the plaint are as follows: the defendant had been a monthly tenant under the plaintiff at a monthly rent of Rs. 40/- payable according to English calendar month in respect of the ground-floor of premises No. 29-B, Satish Mukherjee Road, P. S. Tollygunge, Calcutta described in the schedule A to the plaint hereinafter referred to as the suit premises. The plaintiff served an ejectment notice dated November 17, 1962 calling upon the defendant to vacate the suit premises on ground of default in payment of rent and also for own use and occupation by the plaintiff landlord. The defendant on receiving of the said notice promised to quit and vacate the suit premises and at last gave a notice by post-card dated June 30, 1963 stating that he would quit and vacate the suit premises on July 31, 1963. He also gave another notice informing the plaintiff that he would vacate the suit premises on July 31, 1963 and deliver vacant possession to the plaintiff or his representative. The defendant took a loan of Rs. 60/- from the plaintiff for giving effect to his notice. The defendant, however, failed to vacate the suit premises and thereupon the plaintiff served a notice on the defendant on August 9, 1963, informing the defendant to quit and vacate within three days from receipt of the said notice and also to pay damages from 1st August, 1963. The defendant in reply stated that the letter alleged to have been given by the defendant was a forged one which allegation the plaintiff in his letter written in reply repudiated. As the defendant failed to vacate, the plaintiff instituted the suit on August 29, 1963, praying for recovery of possession of the suit property on eviction of the defendant therefrom.

( 2 ) THE suit was contested by the defendant who filed a written statement and it was stated therein that the suit was barred for want of legal and sufficient notice required under Section 13 of the West Bengal Premises Tenancy Act and also 106 of the Transfer of Property Act. The defendant denied the allegations of default as also of the plaintiff's requirement of the suit premises for his own use and occupation. The defendant also denied that he promised to vacate the premises as there was no occasion for the same since he was living in the suit premises with his family. The defendant further denied that he gave any notice as alleged and stated that all allegations in connection therewith were untrue. For all these reasons, the defendant submitted that the suit should be dismissed.

( 3 ) ON a trial on evidence, the learned Munsif held that the question of the plaintiff's requirement was not required to be considered as the defence against delivery of possession was struck out. It was further held that the plaintiff's notice was legal, valid and sufficient. The learned Munsif further found that the notices Exts. 6-C and 7 served by the defendant were signed by him and that he took the loan of Rs. 60/- as alleged. It was also found that the defendant was a defaulter in payment of rent since July 1962 and so liable to be evicted. It was accordingly held that the plaintiff was entitled to a decree.

( 4 ) ON appeal by the defendant, the Appellate Court was of opinion that after striking out of the defence against delivery of possession the suit was to proceed ex parte under ground (j) of Section 13 (1) of the West Bengal Premises Tenancy Act, 1956. It was held that the notice of August 9, 1963, did not amount to waiver of the earlier notices given by the tenant and accordingly it cannot be said that the plaintiff consented to the continuation of the tenancy. It was accordingly held that the plaintiff was entitled to a decree and the appeal in the circumstances was dismissed.

( 5 ) MR. Saktinath Mukherjee, learned Advocate for the defendant appellant contended that the notice to quit under ground (j) of Section 13 (1) of the said