A tenant who does not have protection under the tenancy law and receives a valid notice under Section 106 of the Transfer of Property Act, 1882, terminating the tenancy, does not have a bona fide defence to a claim for eviction.

Ashim Kumar Banerjee, J.

Facts:

Calcutta Zoroastrian Community’s Religious and Charity Fund and the Olpadwala Memorial Trust filed the suit through trustees being the plaintiffs. The plaintiffs claimed, they were the owners of premises No. 52, Chowringhee Road, Calcutta, a property comprised of one bigha, 12 cottah 14 chattak and 25 sq. feet of land on which a three-storied building was situated. The trustees would complain, they leased out a portion of the property vide Deed of Lease dated April 17, 1984 for 21 years that expired by efflux of time in 2001. Despite lease having expired the defendant continued to be in possession and was considered to be a monthly tenant. By notice dated December 4, 2006 plaintiffs terminated the tenancy under Section 106 of the Transfer of Property Act, 1882. The defendant failed and neglected to vacate that gave rise to the suit filed by the trustees. As per the agreement the monthly rent was fixed at Rs.43,725.00. The plaintiffs valued the suit at Rs.22,41,125.00 taking into account 12 months rent and the unpaid municipal taxes to the extent of Rs.17,17,424.00. The plaintiffs claimed recovery of possession, mesne profit as well as decree for Rs.17,17,424.00 on account of arrear municipal tax. The defendant immediately paid the said sum of Rs.17,17,424.00 that the plaintiffs declined to accept. The defendant applied for dismissal of the suit. Under Order VII Rule 11 of the Code of Civil Procedure the suit was not maintainable in view of mis-joinder of cause of action. Pertinent to note, in a suit for recovery of possession the valuation was to be done on the basis of the annual rent. Municipal tax could not be added unless express leave was obtained from the learned Single Judge under Order II Rule 4 of the Code of Civil Procedure at the time of filing of the suit. His Lordship accepted such contention and dismissed the suit. The plaintiffs approached the Court of Appeal. The Court of Appeal affirmed the decision of His Lordship, however granted leave under Order II Rule 4 on the oral prayer of the plaintiffs.

An application for summary judgment under Chapter XIII A of the High Court Original Side Rules was then pending after the plaint was amended. The plaintiffs got the application for summary judgment listed. The learned Single Judge heard and disposed of the same vide judgment and order dated July 22, 2011 that was impugned in this appeal.

Judgment and order Impugned:

Before the learned Single Judge the defendant took the following pleas:

i) The old tenancy law being the West Bengal Premises Tenancy Act, 1956 would apply giving statutory protection to the defendant against eviction.

ii) Zoroastrian Trust was the sole lessor whereas two Trusts being Zoroastrian and Olpadwala Trust issued the notice of eviction and filed the suit. The second Trust did not have any privity of contract with the defendant.

iii) Earlier suit on the self-same cause of action was dismissed, hence, the present application would be hit by principles of res judicata.

Learned Judge held, each of the defence was baseless. The defendant paid the municipal tax vide letter dated December 29, 2006 without raising any question as to the locus of the landlord. The suit of 2001 was withdrawn with leave to file afresh. Hence, principles of res judicata would not apply. The municipal tax so tendered, was not accepted. Monthly rent was in excess of Rs.10,000.00, hence, the suit was maintainable.

The defendant also took the plea of lack of pecuniary jurisdiction. The defendant also raised the issue of mis-joinder of cause of action as municipal tax could not be added to the claim for recovery of possession without any leave being obtained. The learned Judge held, lease deed on behalf of the Trust would include the successors in office, hence, the present trustees were competent to file the suit. The learned Judge ultimately held, the defendant was not able to raise a triable issue and its defence was nothing but moons