M. R. MALLICK, J.

( 1 ) THIS is an appeal against the judgment and decree passed by the judge, 8th Bench, City Civil Court at Calcutta dated 11th October, 1985 dismissing the plaintiffs/appellants' suit for declaration and permanent injunction.

( 2 ) THE facts may be briefly stated as follows :-the plaintiffs are the legal heirs and representatives of one Bonbehari Paul, who was a Refugee from East Pakistan permanently settled at Duttapukur within the District of 24-Parganas. On 5. 8. 59 Bonbehari took Lease of the suit room in the ground floor of the Premises no. 11/1, Digambar Jain Temple Road, Calcutta by executing a registered Deed of Lease for 21 years in favour of the defendants and their mother Smt. Panbai. In the Deed of Lease there was no provision for enhancement of rent but as demanded by the Lessors and after the inception of the Lease Bonbehari agreed to pay and actually paid Rs. 55/- per month payable according to Hindi Calendar months even though the rent originally fixed was Rs. 50/- per month. During the lifetime of Bonbehari a notice dated 6. 2. 76 was served upon Bonbehari calling upon him to deliver peaceful possession of the above shop room, which is the subject matter of the present suit. The Lessors thereafter filed a suit u/s. 41 of the Presidency Small Causes Court Act in the Presidency Small Causes Court, Calcutta against Bonbehari for eviction on the ground of default and sub-letting. The suit was registered as No. 1476/76. Bonbehari filed a Written Statement in the said suit and was contesting. During the pendency of the suit Bonbehari died and the plaintiffs were substituted in his place and filed a Written Statement again. On 23. 6. 83 the said suit was decreed ex parte. An application under Order 9 Rule 13 C. P. Code was filed by the present plaintiffs but the same was rejected. An appeal was preferred against the said order of rejection in the Hon'ble High Court at Calcutta and in F. M. A. T. No. 118/84 and under Order of the Division Bench, the plaintiffs deposited Rs. 6100/- being the entire arrear rent due in the Small Causes Court, Calcutta. The appeal was, however, dismissed by the Division Bench with liberty to file a suit in the City Civil Court at Calcutta u/ss. 47 and 49 of the Presidency Small Causes Court Act that is why the plaintiffs have filed the present suit contending, inter alia, that the decree for ejectment passed against them in the Suit No. 1576/76 is void and without jurisdiction because the plaintiffs are governed by the provision of the West Bengal Premises Tenancy Act because of the termination of the Lease due to enhancement of rent from Rs. 50/- to Rs. 55/- per month and a new tenancy under the provision the West Bengal Premises Tenancy Act have been created. The plaintiffs have, therefore, filed the present suit for declaration that the decree in Suit No. 1576/76 of the Small Causes Court, Calcutta not binding that the plaintiffs are tenants at a rental of Rs. 55/- per month and for permanent injunction restraining the defendant from taking delivery of possession of the suit room on execution of the decree passed in the above suit.

( 3 ) THE defendants contested the suit by filing a Written Statement. It was contended that the Deed of Lease specifically stipulated that in case of increase in the Corporation tax, the Lessee would be liable for proportionate increase in rent in the occupier's share of tax, that Bonbehari on being fully satisfied about the enhancement of Corporation tax agreed to enhance the rent to Rs. 55/- per month, that the suit in the Small Causes Court was a valid suit filed by the defendants and the decree by them is also valid and binding upon the present plaintiffs. It is also denied that because of the enhancement of rent from Rs. 50/- to Rs. 55/- per month a new tenancy has been created under the provision of the W. B. Premises Tenancy Act. It is further contended that as the Lease has been terminated by efflux of time, the plaintiffs are

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