A notice to quit under the West Bengal Premises Tenancy Act must be based on grounds existing at the time of its issuance, and post-notice default cannot be considered in determining the grounds for ejectment.

L.M. Ghosh, J.

On the 27th January 1976, the plaintiffs filed an Ejectment Suit no. 90 of 1976 in the City Civil Court at Calcutta, against the defendant appellant. The grounds for ejectment. as act out in the plaint, were, default, sub letting, using the premises for illegal or immoral purposes, reasonable requirement, waste or negligence and nuisance to the neighbours. A notice dated 17th July, 1975 was referred to. By that notice, the defendant was required to vacate the suit premises with the expiry of the last date of the month of August 1975 As the defendant failed to vacate, the plaintiffs filed the suit for ejectment

2. The defendant, in her written statement, denied all the allegations in the plaint. Particularly she denied that the plaintiffs had grounds for asking for a decree for eviction. As to default, the defendant mentioned that the was depositing lent with the Rent Controller from July, 1975.

3. The learned Judge, presiding over the 3rd Bench of the City Civil Court, decreed the Suit on the grounds of reasonable requirement and default the other grounds pleaded by the plaintiffs were rejected.

4. Not accepting the judgment and decree of the learned trial court, the defendant/tenant/appellant has preferred this appeal.

5. Mr. S.P. Roy Chowdhury, the learned Advocate appearing for the appellant, has submitted that at this stage, in this appeal. We are concerned only with the ground of default, as the other grounds no longer survive. According to Mr. Roy Chowdhury, the case of default has not been established at all and so the suit is liable to be dismissed.

6. Mr. S.C. Pain, the learned Advocate appearing for the respondents, has accepted the position that at this stage, we are only concerned with the ground of default But, according to him, the ground of default has clearly been established.

7. By now, the ground has been cleared of the ramifications. The learned trial court did not accept the grounds of nuisance, sub letting etc There has been no cross objection against such findings. The learned Advocate for the respondents has also not sought to support the judgment on grounds decided against the plaintiffs Therefore, there remain two other grounds the ground of default and the ground of reasonable requirement. As to the ground of reasonable requirement also, it no longer survives in view of the subsequent events. It is an admitted position that after the decree, the plaintiffs transferred the property to Certain transferee. It is also borne out by the record that the said transferees have been substituted in place of the original plaintiffs. That being the position, the substituted/appellants cannot avail of the ground of reasonable requirement on the basis of the subsequent purchase. Indeed, Mr. Pain has also not urged the ground of reasonable requirement

8. Thus, we are left with the ground of default it is one of the grounds un which the learned court below has passed the decree.

9. As to the ground of default, Mr. Roy Chowdhury has pointed out that there is no evidence Whatsoever as to default Going through the record we find that indeed that is the position P.W.1 is one of the original plaintiffs She has adverted to the other grounds, but has never mentioned that the defendant was a defaulter P.W. 2 is another plaintiff, originally borne on the record She also does refer to the ground of default And P.W.3 is the Advocate Commissioner As Mr. Roy Chowdhury has rightly pointed out, if the ground of default is relied upon, there must be evidence to established that ground. It is for the party alleging default to establish that that fact affirmatively. It has been noticed that on the plaintiffs' side, there is no evidence that the defendant became a defaulter. In the notice to quit, Ext.1 also, there is no reference to the ground of default. On the other hand, the defendant, in reply, (Ext 4), has categorically stated that she had been plying the lent regularly. If we go by this state of the record,