IMPORTANT POINT
Claim for mesne profit is a triable issue.

Debangsu Basak, J.—Appeal at the instance of the defendant is directed against a decree for eviction dated March 26, 2013 passed under Chapter XIII A of the Original Side Rules. Appellant is a tenant under the respondent in respect of flat No.9 on the 9th floor of premises No. 12 A Camac Street, Kolkata together with a car parking area for two cars. Appellant paid rent till November, 2007. The last rent paid was Rs.40,000 per month. The appellant came into possession of the suit premises under an agreement dated May 24, 2006. The agreement describes the landlord and the tenant as the licensor and the licensee respectively. The impugned judgment returns a finding that the license for all practical purposes was treated as a tenancy. No ground was urged before us contrary to such finding. Appellant filed a suit before the 6th Bench City Civil Court at Calcutta being Title Suit No. 493 of 2008 praying, inter alia, for a declaration that the appellant was a tenant in respect of the suit premises under the respondent and for a permanent injunction restraining the respondent from creating any disturbance to the peaceful possession and enjoyment of the suit premises and not to be ousted from the suit premises without due process of law. The respondent also filed a suit before the learned 6th Bench of the City Civil Court at Calcutta being Title Suit No. 1101 of 2008 seeking, inter alia, decree of declaration and for eviction as well as for enquiry into the damages. Such suit was filed after issuance of a termination of tenancy notice dated October 17, 2007. The respondent withdrew the suit as recorded in the order dated April 22, 2010 of the learned City Civil Court at Calcutta. In the suit of the respondent an interim application for injunction, was made by the respondent. Against the refusal to grant interim injunction, an appeal was carried at by the respondent herein which was dismissed by a judgment and order dated .October 1, 2008.

2. The respondent thereafter issued notice of the termination of tenancy dated June 16, 2010 that was sent by registered post with acknowledgement due card. Such notice came back with the endorsement “not claimed”. The respondent thereafter affixed the notice at the tenanted premises. The notice dated June 16, 2010 speaks of 15 days time to vacate. The respondent thereafter filed a suit beyond the period of 30 days from the date of the notice. Writ of summons of the suit was served on the appellant. The respondent applied under Chapter XIIIA for a decree for eviction and a decree for arrear rent and mes ne profit. The Chapter XIII A application was partly allowed by the impugned judgment and order by granting a decree for eviction. The claim for money decree was disallowed on the ground that a triable issue had been raised in view of the withdrawal of Title Suit No. 1101 of 2008 by the respondent also having a money claim.

3. Mr. Arindam Mukherjee appearing for the appellant contended as follows:

(i) The notice dated June 16, 2010 was not in terms of Clause 17 of the agreement dated May 29, 2006 and as such could not be considered to be a valid notice under Section 106(1) of the Transfer of Property Act, 1882

(ii) The postal envelope coming back as “non-claimed” was ‘not a good service and that the factum of affixation of the notice was required to be proved in evidence.

(iii) Suit filed by the respondent being Title Suit No. 1101 of 2008 was a suit for eviction as well as for the mes ne profit. Such suit being withdrawn unconditionally by the respondent the present suit was hit under Order XXIII Rule 1(4)

(iv) The agreement dated May 29, 2006 being held by the learned Single Judge to be non est as the document was not registered, no decree for eviction could have been passed.

4. Mr. Arindam Mukherjee relied on 1986(1l) CHN 19•to submit that the notice of eviction dated June 16, 2010 ought to have been tendered to the tenant at its residence ‘and that in the instant case it was not don