Municipal tax is distinct from rent in tenancy agreements unless explicitly included; failure to pay municipal tax does not constitute default in rent payments if rent obligations are met.

JUDGMENT :

(Siddhartha Roy Chowdhury, J.)

1. This second appeal challenges the judgement and decree passed by learned 4th Bench of City Civil Court in Title Appeal No. 8 of 2018, reversing thereby the judgement and decree passed by learned Judge, II Bench, Presidency Small Causes Court in Ejectment Suit No. 516 of 2016.

2. For the sake of convenience, the parties will be referred to as they were arrayed in suit before the learned Trial Court.

3. Briefly stated, Kanchana Mukherjee filed the suit for eviction and recovery of possession against the defendant Shib Nath Saha contending, inter alia, that the defendant was inducted as a monthly tenant in respect of suit property by the father of the plaintiff at a rental of Rs. 590/-payable according to English Calendar month with a provision to enhance the rent at the rate of Rs. 30/- after expiry of each year and an agreement was executed on 2nd August, 1999 between Hara Prasad Mookerji since deceased and the defendant to that effect. It was further agreed that the defendant would pay 10% of the increased municipal tax or any other imposition of tax in addition to the rent fixed as aforesaid.

4. It is further contended that the defendant is defaulter in payment of rent from December, 2007 as well as failed to pay the proportionate share in municipal tax in terms of agreement dated 2nd August, 1999. At the time of induction of the defendant in the suit property as tenant the municipal tax was Rs. 308/- and defendant was not required to pay the proportionate share of municipal tax. Subsequently, the Kolkata Municipal Corporation enhanced the Municipal Tax from Rs. 308/- to Rs. 12,191/- per quarter. Father of the plaintiff by letter dated 21st February, 2004 demanded the proportionate share of municipal tax from the defendant amounting to Rs. 16,632/- for 14 quarters from October, 2000 to March, 2004 followed by another letter dated 18th April, 2005. But the defendant did not pay heed to such request. The plaintiff however, received the rent though in part up to the month of November, 2007 as the defendant promised to clear the arrears of municipal tax.

5. The notice terminating the tenancy was duly received by the defendant but the defendant failed to act in terms of the requisition of notice. By a notice dated 19th March, 2015 under Section 6 (4) of the West Bengal Premises Tenancy Act, 1997 the tenancy was terminated on the expiry of month of April, 2015.

6. It is further contended that the predecessor-in-interest of the plaintiff filed a suit for eviction of the defendant being Ejectment Suit No. 118 of 2008 and the suit was decreed on contest on 25th April, 2013. The said decree was challenged by the defendant in Title Appeal No. 46 of 2013 and the appeal was accepted by learned 7th Judge of City Civil Court, Calcutta on the ground that notice determining the tenancy was bad in law.

7. The defendant contested this suit by filing written statement denying all material allegations made in the plaint. According to the defendant, he has deposited rent till December, 2007 to the plaintiff, from January, 2008 up to June, 2010, he deposited the rent with the Rent Controller and after institution of suit, rent is being deposited in Court. The defendant prays for dismissal of the suit.

8. Based on the pleadings of the parties learned Trial Court framed issues and answered the issues against the plaintiff. Consequently, the suit was dismissed. However, learned First Appellate Court was pleased to reserve the judgement and decree passed by learned Trial Court in appeal.

9. Aggrieved by the judgement passed by learned First Appellate Court, the defendant preferred this second appeal which was admitted on the fol