The competence of a power of attorney holder to depose in a suit and the absence of any substantial question of law in the case.

JUDGMENT

ajoy Kumar Mukherjee, J. - The Defendant /appellant Shri Nikhil Mondal being aggrieved by and dissatisfied with the judgment and decree dated September 30th 2020 passed by learned Civil Judge(Senior Division), Sixth Court, alipore , South 24 Parganas, in Title appeal No. 42 of 2017, has preferred this second appeal from appellate decree. By the impugned decree the learned First appellate Court has affirmed the judgment and decree passed by learned Civil Judge (Junior Division), 3rd Court , alipore in Title Suit No. 03/1997.

2. Plaintiff/Respondent's case as projected in the plaint is that one Kalipada Dey, father of the plaintiff No. 2 was the thika tenant in respect of suit property and he constructed residential structure on the said property. Said Kalipada died leaving behind his wife erstwhile plaintiff No.1 and son who is plaintiff No. 2. Plaintiff No. 1 died during pendency and plaintiff No.2 became sole thika tenant in respect of the property. Initially defendant was a tenant under Kalipada Dey and after his demise defendant became tenant under plaint No. 1 at a monthly rent of Rs. 50/- payable according to English Calendar month. Defendant was a defaulter in making payment of rent from May ,1990. Plaintiff reasonably requires the suit property for their own use and occupation and due to paucity of accommodation, plaintiff's family members forced to sleep at the Varanda. Plaintiffs through their advocate sent a notice to quit to the defendant on 14.10.1996, but inspite of service of notice, the defendant refused to vacate the suit property. Hence the suit.

3. Defendant appeared and contested the suit by filing written statement denying all material allegations. Defendant's case is that after death of Kalipada Dey, the property was inherited by his wife and one Tarun Dey who used to issue rent receipt but thereafter Tarun Dey did not issue rent receipt. as such defendant tendered rent at the rate of Rs. 50/- per month from November, 1995 to December, 1995. The rent for the month January, 1996 was sent directly to Tarun Dey through money order, when he refused to accept such rent but the defendant deposited rent before rent control officer. Further case of the defendant is that after the death of Tarulata Mondal her legal heirs became tenants in common and they are necessary party in this suit. Moreover plaintiff No. 1 has a house at Sajnebaria, where she has sufficient accommodation. accordingly he has prayed for dismissal of the suit.

4. Learned Trial Court framed 8 issues in order to adjudicate dispute between the parties and after considering the evidence, both oral and documentary, as available in the record, was pleased to decree the suit. Learned Trial Court held that DW1 admitted plaintiff as landlord and the trial court while disposing the application under section 17(2) of the West Bengal premises Tenancy act 1956 (WBPT act) has observed that the relationship of the landlord tenant has been established from the evidence of PW1. The defendant did not challenge said finding of the court, before any higher forum. Moreover, the learned Trial Court held defendant as defaulter in payment of rent for 8 months and directed to pay Rs. 440/- as arrear rent and defendant did not challenge the said order. Defendant has filed civil deposit challans which shows that the arrear rent was not paid by the defendant on the due date i.e. 12.03.2010 but he paid it on 13.05.2010 and no application for extension of time for payment of arrear rent was filed by the defendant nor any order of extension of time was passed by the court suomoto . Therefore, learned trial Court held that defendant failed to comply the order passed under section 17 (2) of the said act and as such defendant was held to be defaulter in payment of rent. Regarding reasonable requirement learned Trial Court held that notwithstanding the limited right of the plaintiff in respect of the suit property being a thika tenant, he is nevertheless entitled to be recog