JUDGMENT :

AJOY KUMAR MUKHERJEE, J.

1. The matter was adjourned on February 16, 2022 to enable the appellant to represent and make appropriate submission. In spite of giving opportunity, today also the appellant is not represented, nor any accommodation is prayed for.

2. The Judgment and decree dated 28th June, 2019 passed by the Learned 3rd Court, Additional District Judge, Howrah, in Title Appeal No. 142/2012, affirming the judgment and decree dated 30th July 2012 passed by learned First Court of Civil Judge (Junior Division), Howrah, is the subject matter of the present appeal.

3. We have considered the judgment and decree of the trial court as well as the lower appellate court and the grounds of appeal. In the grounds of appeal two points have been urged, namely, res judicata and defective notice of eviction. In order to ascertain whether the said points in the facts and circumstances of the case constitute substantial questions of law in favour of admission of the appeal, we have to consider the brief facts and the findings of both the courts below in respect of the aforesaid two issues.

4. Plaintiff/respondents case in a nutshell is that plaintiff’s father Girish Chandra Mazumder was original owner of the suit property and during his lifetime he settled suit property in favour of his only son i.e. plaintiff by executing registered deed of settlement on 01.01.1988. Defendant was a tenant in respect of schedule mentioned shop room at a monthly rental of Rs. 50/- payable according to english calendar month. The defendant was habitual defaulter in payment of rent since February, 1999. The suit shop room is also required for plaintiffs use and occupation and for which he sent a notice of ejectment, asking the defendant to quit and vacate the suit shop room but the defendant inspite of receipt of that notice, did not vacate the suit premises. Hence the suit.

5. Defendant/appellant contested the suit by filing written statement. Defence case is, after the death of original owner Girish Chandra Mazumder his heirs and legal representatives became the owner and land lord in respect of the suit property but they have not been made parties in the suit. Moreover the notice as sent by the plaintiff is defective. Defendant denied that he was defaulter in payment of rent. Defendant actually use to deposit rent to the office of rent controller as plaintiff refused to accept rent. Subsequently defendant by way of amendment in written statement introduced counter claim in the suit, alleging that plaintiff has disconnected the electricity of the suit shop room, for which defendant incurred loss in his business of manufacturing iron grill as sub-contractor. After disconnection of electricity defendant requested the plaintiff for restoration of his electric connection but plaintiff did not take any initiative for restoring the same, for which defendant made counter claim to recover damages to the tune or Rs. 20,000/- (Twenty Thousand) against the plaintiff and also prayed for dismissal of the suit for eviction. Plaintiff /respondent filed written statement against. Counter claim contending that defendant has caused damages to the suit room by keeping the same under lock and key and plaintiff never disconnected the electric connection of the defendant and defendant enjoying the electricity from a meter of other tenant and as he failed to pay the electric bill so WBSEB had disconnected his electric line sometimes in the year 1998. Accordingly plaintiff prayed for dismissal of the counter claim.

6. It appears that learned trial court framed 8 (eight) issues initially and after considering the counter claim and written statement against the counter claim, he re-casted 12 (Twelve) issues for the adjudication of the suit. In the said suit plaintiff had deposed as PW1 and defendant himself deposed as DW1 and he has brought 3 other witnesses in support of his case. During the course of examination, plaintiff proved certified copy of deed of settlement, entr