A summary judgment cannot be granted if the defendant raises triable issues, including the status of tenancy and acceptance of rent post-lease expiration.

JUDGMENT :

Krishna Rao, J.

1. The plaintiff has filed the present application under Chapter XIIIA of the Original Side Rules of this Court for summary judgment and decree for eviction of the defendants and for recovery of khas possession of the suit property. The plaintiff is the sole and absolute owner of the Municipal premises No. 117, B.K. Pal Avenue, P.S. Jorabagan, Kolkata – 700 005 along with four storied building standing thereon, by way of registered Deed of Declaration dated 29th May, 1963. The said property was originally belonged to one Sambhu Kumar Pal, who dedicated the said property to the deity. In the said Deed of Declaration, Sambhu Kumar Pal, appointed himself as first Shebait of the said deity and provided that after his demise, his wife Shanti Bala Pal and his son Shyamal Kumar Pal would succeed the office of the Shebait.

2. The defendants were lessees of the entire third floor of the said premises at a monthly rent of Rs. 2049.74. A registered Lease Deed was entered between the plaintiff and the defendants on 15th December, 1995 for a period of 25 (twenty five) years with effect from 1st November, 1995 till 31st October, 2020. In the meantime, the debutter property including the suit property was made a subject-matter of a partition suit being T.S. No. 1955 of 2011 instituted before the Learned City Civil Court at Calcutta. In the said suit, debutter property was put under the control, administration and management of an Advocate Receiver appointed in the said partition suit. In a Revisional Application, the Coordinate Bench of this Court in C.O. No. 629 of 2019 expunged the debutter property from the schedule of the plaint of T.S. No. 1955 of 2011.

3. As the lease period was going to expire on 31st October, 2020, the plaintiff by a letter dated 3rd September, 2020 intimated the defendants that the lease period is going to expire on 31st October, 2020 and requested the defendants to hand over the peaceful, vacant and khas possession of the suit property on the date of expiration of Deed of Lease.

4. The defendants received a notice dated 3rd September, 2020 but the defendants have not vacated the premises and made out a separate case that the plaintiff has accepted monthly rent from the defendants till December, 2020 and even after expiry of lease period, the plaintiff has accepted rent from the defendants and the defendants become monthly tenants and new tenancy has been created. The defendants have now become tenants by holding over.

5. On receipt of reply from the defendants, the plaintiff has again sent a notice dated 19th November, 2020 informing the defendants that pursuant to the Deed of Lease, the lease rent was supposed to be enhanced 10% over the existing rent after the expiry of every five years and the original rent of Rs. 1400/- which was enhanced to Rs. 1540/- and further Rs. 1694/- and thereafter to Rs. 1863.40/- and lastly to Rs. 2049.74/-. In the said notice, it is mentioned that in the month of August, 2020, the defendants made payment of the pending differential amount of lease rent from the month of November, 2015 to November, 2019 and the last cheque of Rs. 11,180.40 which was given by the defendants was towards the rent for the month of July, 2020 and for the payment of the pending differential amount of enhanced lease rent from the month of November, 2015 to November, 2019 which was not paid by the defendants in terms of Deed of Lease dated 15th December, 1995.

6. On 23rd November, 2020, the plaintiff has sent a notice to the defendants under Section 106 of the Transfer of Property Act , 1882 calling upon the defendants t