The Assam Company (India) Ltd. Vs. Numazar Dorab Mehta and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1092724
CourtKolkata High Court
Decided OnOct-08-2013
JudgeBANERJEE
AppellantThe Assam Company (India) Ltd.
RespondentNumazar Dorab Mehta and ors.
Excerpt:
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form no.j.(2) in the high court at calcutta civil appellate jurisdiction original side present : the hon’ble mr.justice ashim kumar banerjee and the hon’ble justice dr. mrinal kanti chaudhuri a.p.o.no.85 of 2010 with a.p.o.no.111 of 2013 arising out of c.s.no.16 of 2007 the assam company (india) ltd.versus numazar dorab mehta & ors.for the assam co.ltd.: mr.mr.mr.mr.anindya kumar mitra, senior advocate surajit nath mitra, senior advocate ashish chakraborty, advocate sankarsan sarkar, advocate for numazar dorab mehta & ors.jayanta kumar mitra, senior advocate ranjan bachawat, advocate dhruba ghosh, advocate sourav ghosh, advocate arnab basu mallick, advocate : mr.mr.mr.mr.mr.heard on : september 4, 5, 6, 12, 13, 18, 23, 24, 25 & 26, 2013. judgment on : october 8, 2013. ashim kumar.....
Judgment:

Form No.J.(2) IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction Original Side Present : The Hon’ble Mr.Justice Ashim Kumar Banerjee And The Hon’ble Justice Dr.

Mrinal Kanti Chaudhuri A.P.O.No.85 of 2010 With A.P.O.No.111 of 2013 Arising out of C.S.No.16 of 2007 THE ASSAM COMPANY (INDIA) LTD.versus NUMAZAR DORAB MEHTA & ORS.For the Assam Co.LTD.: Mr.Mr.Mr.Mr.Anindya Kumar Mitra, Senior Advocate Surajit Nath Mitra, Senior Advocate Ashish Chakraborty, Advocate Sankarsan Sarkar, Advocate For Numazar Dorab Mehta & ORS.Jayanta Kumar Mitra, Senior Advocate Ranjan Bachawat, Advocate Dhruba Ghosh, Advocate Sourav Ghosh, Advocate Arnab Basu Mallick, Advocate : Mr.Mr.Mr.Mr.Mr.Heard on : September 4, 5, 6, 12, 13, 18, 23, 24, 25 & 26, 2013.

Judgment on : October 8, 2013.

ASHIM KUMAR BANERJEE, J.

FACTS : Calcutta Zoroastrian Community’s Religious and Charity Fund and the Olpadwala Memorial Trust filed the suit through trustees being the plaintiffs.

The plaintiffs claimed, they were the owners of premises No.52, Chowringhee Road, Calcutta, a property comprised of one bigha, 12 cottah 14 chattak and 25 sq.

feet of land on which a three-storied building was situated.

The trustees would complain, they leased out a portion of the property vide Deed of Lease dated April 17, 1984 for 21 years that expired by efflux of time in 2001.

Despite lease having expired the defendant continued to be in possession and was considered to be a monthly tenant.

By notice dated December 4, 2006 plaintiffs terminated the tenancy under Section 106 of the Transfer of Property Act, 1882.

The defendant failed and neglected to vacate that gave rise to the suit filed by the trustees.

As per the agreement the monthly rent was fixed at Rs.43,725.00.

The plaintiffs valued the suit at Rs.22,41,125.00 taking into account 12 months rent and the unpaid municipal taxes to the extent of Rs.17,17,424.00.

The plaintiffs claimed recovery of possession, mesne profit as well as decree for Rs.17,17,424.00 on account of arrear municipal tax.

The defendant immediately paid the said sum of Rs.17,17,424.00 that the plaintiffs declined to accept.

The defendant applied for dismissal of the suit.

Under Order VII Rule 11 of the Code of Civil Procedure the suit was not maintainable in view of mis-joinder of cause of action.

Pertinent to note, in a suit for recovery of possession the valuation was to be done on the basis of the annual rent.

Municipal tax could not be added unless express leave was obtained from the learned Single Judge under Order II Rule 4 of the Code of Civil Procedure at the time of filing of the suit.

dismissed the suit.

His Lordship accepted such contention and The plaintiffs approached the Court of Appeal.

The Court of Appeal affirmed the decision of His Lordship, however granted leave under Order II Rule 4 on the oral prayer of the plaintiffs.

An application for summary judgment under Chapter XIII A of the High Court Original Side Rules was then pending after the plaint was amended.

The plaintiffs got the application for summary judgment listed.

The learned Single Judge heard and disposed of the same vide judgment and order dated July 22, 2011 that was impugned in this appeal.

JUDGMENT

AND

ORDER

IMPUGNED : Before the learned Single Judge the defendant took the following pleas: i) The old tenancy law being the West Bengal Premises Tenancy Act, 1956 would apply giving statutory protection to the defendant against eviction.

ii) Zoroastrian Trust was the sole lessor whereas two Trusts being Zoroastrian and Olpadwala Trust issued the notice of eviction and filed the suit.

The second Trust did not have any privity of contract with the defendant.

iii) Earlier suit on the self-same cause of action was dismissed, hence, the present application would be hit by principles of res judicata.

Learned Judge held, each of the defence was baseless.

The defendant paid the municipal tax vide letter dated December 29, 2006 without raising any question as to the locus of the landlord.

The suit of 2001 was withdrawn with leave to file afresh.

judicata would not apply.

Hence, principles of res The municipal tax so tendered, was not accepted.

Monthly rent was in excess of Rs.10,000.00, hence, the suit was maintainable.

The defendant also took the plea of lack of pecuniary jurisdiction.

The defendant also raised the issue of mis-joinder of cause of action as municipal tax could not be added to the claim for recovery of possession without any leave being obtained.

The learned Judge held, lease deed on behalf of the Trust would include the successors in office, hence, the present trustees were competent to file the suit.

The learned Judge ultimately held, the defendant was not able to raise a triable issue and its defence was nothing but moonshine.

His Lordship allowed the application and passed a decree for eviction coupled with an order of appointment of Special Referee to assess the mesne profit.

APPEALS : APPEAL No.85 OF2010: The defendant filed the instant appeal inter alia against judgment and order dated March 11, 2010 rejecting the preliminary issue raised by the defendant as to the maintainability of the application for summary judgment.

The learned Judge observed, in view of the leave granted by the Division Bench under Order II Rule 4 and the amendment being accordingly carried out, the application was maintainable.

APO No.111 OF2013: The defendant filed the instant appeal being aggrieved by the judgment and order of the learned Single Judge inter alia passing a summary judgment for eviction.

CONTENTIONS : Mr.Anindya Kumar Mitra, learned senior counsel, appearing for the defendant/appellant raised the following issues : (i) The notice under Section 106 was bad, hence, the suit would not be maintainable.

(ii) The plaintiffs were not the trustees and as such were not competent to claim recovery of possession.

(iii) This Court lacked pecuniary jurisdiction as the annual rent was much below Rs.10 lacs.

(iv) Even if Olpadwala Trust became the landlord subsequent to the execution of the lease, in absence of appropriate letter of attornment, the defendant was not obliged to accept the said Trust as landlord.

(v) The municipal tax could not be made the basis of the suit unless leave under Order II Rule 4 was obtained.

(vi) Even if the defect was cured pursuant to the leave granted by the Court of Appeal that would not make the application for summary judgment maintainable as it was filed well prior to the amendment.

Elaborating his submission, Mr.Mitra drew our attention to the Deed of Lease to show Zoroastrian Trust was the lessor, hence, notice under Section 106 could be served by Zoroastrian Trust only.

The combined notice on behalf of Zoroastrian Trust and Olpadwala Trust was not valid in the eye of law.

On the pecuniary jurisdiction, Mr.Mitra would contend, in a suit for eviction apart from the annual rent as well as the mesne profit nothing could be taken into account while valuing the suit.

Even after amendment the plaintiffs did not include the mesne profit for the purpose of valuing the suit.

Hence, as on the date of filing, the suit was not maintainable as the Court lacked territorial jurisdiction.

Subsequent leave under Order II Rule 4 could not cure such inherent lacuna particularly when the application for summary judgment was made much prior to the amendment.

According to Mr.Mitra, the defendant was entitled to protection in law as a tenant as the tenant was entitled to remain in possession so long he would discharge his obligation by making regular payment of rent until the tenancy was terminated by an appropriate notice.

Since the notice was not valid, the tenant was entitled to such protection.

On merits, Mr.Mitra would contend, the plaintiffs were not sure about the extent of tenancy.

The application was equally vague.

The plaintiffs claimed, the lease was executed in respect of a portion of premises in question.

The said portion was not clearly defined.

In absence of such clear definition as to the tenancy no decree for recovery of possession could be passed.

Mr.Mitra would refer to Order XIV Rule 2 of the Code of Civil Procedure to support his contention, without deciding the question of jurisdiction and without answering the issue raised by the defendant with regard to the validity of the claim made by two Trusts the decree for summary judgment was liable to be set aside.

He would contend, Order XX Rule 5 would cast an obligation upon the learned Judge to decide all issues.

Having not done so, His Lordship committed grave error.

Mr.Mitra attacked the judgment where the learned Judge observed, the plaintiffs were “admittedly” present trustees.

Such finding did not have any basis at all.

Mr.Mitra summed up his argument by contending, notice was vague as it did not disclose how Olpadwala Trust became entitled to claim recovery of possession although Deed of Lease would mention only about Zoroastrian Trust.

The plaint was equally vague without having any material particulars about the suit property.

According to him, the above issues would certainly raise a triable issue that would warrant regular trial.

CASES CITED : To support his contentions, Mr.Mitra cited the following decisions : 1.

49 Calcutta Weekly Notes Page-246 (Sm.

Kiranmoyee Dassi and another versus Dr.J.Chatterjee).2.

All India Reporter 1968 Calcutta Page-532 (Parekh Brothers versus Kartick Chandra Saha and Ors.).3.

All India Reporter 1985 Supreme Court page-736 (M/S.Fomento Resorts and Hotels LTD.versus Gustavo ranato da Cruz Pinto and Ors.).4.

89 Calcutta Weekly Notes page-728 (Kapil Deo Pandey versus Vasudeb Devshankar Shukla).5.

All India Reporter 2001 Supreme Court page-2607 (Vishwambhar and ORS.versus Laxminarayana (Dead) through L.Rs.and Anr).6.

2001 Volume-VIII Supreme Court Cases page-82 (State of Kerala versus M.S.Mani and Ors.).7.

All India Reporter 2003 Madras page-416 (Southern Ancillaries PVT.LTD.versus Southern Alloy Foundaries PVT.Ltd.).8.

2009 Volume-IV Calcutta High Court Notes pae-192 (Coal India LTD.Apeejay PVT.Ltd.).Per contra, Mr.Jayanta Kumar Mitra, learned senior counsel appearing for the respondent/trustees advanced argument supporting the judgment and order impugned.

Mr.Mitra contended as follows : i) The leave under Order II Rule 4 once granted, would relate back to the date of presentation of the plaint.

Hence, application made under Chapter XIIIA would be maintainable.

ii) In any event the observation of the Division Bench in judgment and order dated June 9, 2009 would automatically cure the defects not only the plaint but also the pending application as well.

iii) Learned Single Judge answered all the issues including the pecuniary jurisdiction.

iv) By judgment and order dated March 11, 2010 His Lordship initially decided the preliminary issue and decided rest of the issues vide judgment and order dated July 22, 2011.

v) Under the Indian Trust Act, the Trust could not be the owner of any property.

The trustees were the lawful custodian, hence, suit by the trustees was maintainable.

vi) The notice under Section 106 was valid, as it would manifest the real intention expressed by the lessor and understood by the lessee.

vii) The frame of the suit would suggest, the plaintiffs being the trustees of Zoroastrian Trust filed the suit for recovery of possession.

They were the common trustees of Olpadwala Trust mentioning of Olpadwala Trust was superfluous and could not be fettered.

viii) In any event, once the challenge thrown to the trustees in the earlier suit that reached finality at the Apex Court level the respondents would not be entitled to raise the issue again.

ix) In an application of the like nature the Court was to consider as to the defence was bona fide or not.

The facts would depict, the respondents did not have any defence at all and the objections raised, are nothing but moonshine and are put forward to stall the process of recovery of possession.

Elaborating his argument, Mr.Mitra would contend, the trustees of Zoroastrian Trust executed a Deed of Conveyance in favour of the appellant in respect of a portion of premises No.52, Chowringhee Road, Calcutta as fully demarcated Schedule-B to the Deed of Lease.

The parties understood the extent of lease.

The lease expired by afflux of time.

The appellant continued in possession as a monthly tenant.

The respondents terminated the tenancy under Section 106 of the Transfer of Property Act.

While doing so, notice described, the Zoroastrian Trust and Olpadwala Trust were the owners of premises No.52, Chowringhee Road, Calcutta.

Mentioning of Olpadwala Trust was totally unnecessary, however that would not make the notice bad in law.

The appellant understood the purport of the said notice.

They did not even challenge the veracity and/or legality of the same as it would appear from their reply dated December 15, 2006 or December 29, 2006 being page 60-61 of the paper book prepared by the respondents.

On the issue of maintainability of the suit for lack of pecuniary jurisdiction, Mr.Mitra would rely upon the judgment and order dated March 11, 2010 passed by the learned Single Judge.

He would also contend, once the leave under Order II Rule 4 was granted by the Division Bench that would make the suit maintainable for recovery of possession and arrear municipal tax as well.

Once two causes of action were joined in terms of Order II Rule 4 the suit would be squarely maintainable in this Court.

Hence, the plea of pecuniary jurisdiction was liable to be rejected.

On the purported defence as to the notice, he submitted, the mentioning of Olpadwala was superfluous.

The extent of tenancy was known to the parties as would be appearing from Schedule-B to the Deed of Lease, hence, the notice could not be said to be invalid.

On the ownership Mr.Mitra would contend, it was not relevant as to who was the owner of the premises in question.

Once the lessor would terminate the tenancy under Section 106 lessee was obliged to hand over possession.

Even if it was a monthly tenancy, the tenant having no protection under the tenancy law would be obliged to hand over possession to the landlord.

Mr.Mitra would refer to the rent bills, Corporation rate bills to show, Zoroastrian Trust was shown to be the owner of the premises.

At no point of time, the appellant raised any question on that score.

On the frame of the suit, Mr.Mitra would rely upon the averments made in the plaint, since amended.

He would contend, the parties knew about the extent of tenancy.

The appellants never challenged the notice, hence, subsequent challenge to the same would be an afterthought and of no consequence.

In any event, the locus standi of the trustees were gone into in the earlier suit that reached finality at the Apex Court level.

Mr.Mitra would lastly contend, in an application of the like nature, the test was to see, whether the defendant had a sustainable defence that was bona fide.

In the instant case, the appellant/tenancy was terminated under Section 106.

The appellant did not have any protection under the tenancy law, hence, they were liable to hand over possession to the landlord.

So-called defence was moonshine having no legal support and put forward mala fide to stall the process of recovery of possession.

To support his contention, Mr.Mitra relied upon the following decisions : 1.

All India Reporter 1939 Calcutta page-291 (Giridhari Lal Mundra versus Kumar Purnendu Narayan Roy Deb Barma).2.

45 Indian Appeal Page-222 (Harihar Banerji and ORS.versus Ramsashi Roy and Ors.) 3.

All India Reporter 1968 Gujarat page-184 (Kanasara Abudulrehman Sadruddin versus Trustees of the Maniar Jamat Ahmedabad, Musaji Abdulkarim & Ors.).4.

All India Reporter 1972 Bombay page-199 (MRS.Jankibal Prahladrai Brijlal Seksaria versus Kashinath Raghunath kelkar & Ors.).5.

All India Reporter 1977 Supreme Court Page-1120 (Bhagabandas Agarwalla versus Bhagwandan Kanu and Ors.) 6.

All India Reporter 1983 Calcutta page-389 (Bengal Electric Lamp Works LTD.versus Sukdev Chandra Sinha).7.

2001 Volume-VI Supreme Court Cases Page-163 (Vishwambhar and Others versus Laxminarayan (Dead) Through LRs.And Another).8.

2001 Volume-VIII Supreme Court Cases page-561 (Siddalingamma & Anr.

versus Mamtha Shenoy).9.

2003 Volume-III Supreme Court Cases page-472 (Chief Conservator of Forests, Govt.

of A.P.versus The Collector & Ors.).10.All India Reporter 2004 Kerala page-135 (Kizhakke Kuruvatteri Sankaran Nambiar & ORS.versus Thirumangalathmeethal T.M.Thambayi Pilla).11.2006 Volume-II Supreme Court Cases page-777 (Vidyawati Gupta & ORS.versus Bhakti Hari Nayak and Ors).While giving reply Mr.Anindya Kumar Mitra, learned senior counsel referred to Order VII Rule 3 of and Order IV Rule 1 of the Code of Civil Procedure.

According to Mr.Mitra, these two provisions would be mandatory.

Order IV Rule 1 would prescribe the necessary averments in a plaint whereas Order VII Rule 3 would provide for detailed description of the immovable property being the subject matter of the suit.

Referring to these two provisions Mr.Mitra would contend, the plaint would suggest, property was described in Schedule -‘B’ whereas there was no Schedule – B to the plaint.

Annexure – B to the plaint was the Deed of Lease that would have Schedule – B that too, did not have the particulars of the leased portion.

In absence of proper description the decree would be vague and there could not be a decree for recovery of possession of an immovable property that was not property described.

On the pecuniary jurisdiction, Mr.Mitra would refer to the judgment and order dated March 11, 2010 as well as July 22, 2011 to show, learned Judge did not specifically hold, this Court had territorial jurisdiction to entertain the suit.

On the question of purported admission as to the locus of the plaintiffs, Mr.Mitra would refer to the pleadings to show, no such case was made out.

In any event, the plaintiffs did not refer to the orders passed in the earlier suit, hence, the learned Judge erred in observing, the locus was not under challenge.

Appropriate pleading, if taken, should back the plea of estoppel.

The plaintiffs did not show any such case being made out.

On the validity of notice, Mr.Mitra would contend, there was no dispute, both the Trusts claiming to be owners of the premises issued the notice to quit.

The plaintiffs would consistently show, they were the joint owneRs.In absence of any specific statement being made, Olpadwala was not the owneRs.the submissions at the Bar to the contrary, would have no consequence.

He would refer to page-111 and 117 of the paper book to show, the property was leased out by both Trusts and both Trusts were accepted as landlord.

Commenting on the issue of mis-joinder, Mr.Mitra would contend, Olpadwala was not a party to the proceeding separately so that their name could be deleted.

The notice was a composite one, claiming Olpadwala also the owner, hence, the decisions cited by Mr.Mitra on mis-joinder would be of no assistance to us.

Mr.Mitra placed great emphasis on the decision of this Court in M/S.Parekh Brothers (supra) and contended, the order in the earlier suit were not on record, hence, the respondents were not entitled to rely upon the same.

The learned Judge did not decide the preliminary issue as to the maintainability of the suit in absence of pecuniary jurisdiction that would by itself, a triable issue and would automatically stop the Court to pass a summary judgment under Chapter XIIIA.

On the amendment, Mr.Mitra contended, the learned Single Judge allowed the application under Order VII Rule 10 and directed return of the plaint that would seal the fate of the pending applications.

While the Division Bench cured the defect by granting leave under Order II Rule 4 the suit would automatically revive in this Court, hence, the Division Bench observed, the pending applications would also be revived.

It was in that context the Division Bench observed so.

Under Chapter XIIIA Rule 4 the Master’s Summons to be taken out for summary judgment must contain a copy of the plaint.

The Master’s Summons on which the decree was passed contained the original plaint without amendment.

Hence, original plaint being the basis of Chapter XIIIA application would not be maintainable in absence of amendment being carried out.

In any event, the plaintiffs could not properly avail the leave granted by the Division Bench.

Paragraph 9B indicated the amendment that would show, leave under Order II Rule 4 was tagged with the mesne profit and not the municipal tax.

The amendment was itself defective, despite being granted by the Division Bench.

CASES DISCUSSED: Before we decide the present appeal, let us fiRs.discuss law on the subject as pronounced in the precedents cited at the bar.

The respondent relied on the decision in the case of Harihar Banerji (Supra).Giridhari Lal Mundra (Supra).Bhagabandas Agarwalla (supra).Bengal Electric Lamp Works LTD.(Supra) and Kizhakke Kuruvatteri Sankaran Nambiar (Supra).Mr.Jayanta Mitra, learned senior counsel cited these decisions on the proposition, mistake or wrong description of the suit property should not be fatal when parties understood the extent of discord that would be apparent from their conduct.

The appellant would contend, all these decisions were rendered after regular hearing and considering the evidence that was led whereas the judgment and order impugned was rendered at the preliminary stage without giving opportunity to contest the claim.

The respondent relied on the Gujrat case (Kanasara Abudulrehman Sadruddin (Supra).to contend, the Trust could not be the legal owner.

It was the Trustee who could approach the Court for appropriate relief being the lawful owner as custodian on behalf of the beneficiary.

The appellant would contend, there was no appropriate averment in the plaint, Olpadwala became the owner.

In any event, the decisions cited by the respondent to the extent, mistake could be ignored, would not be of any assistance as the appellant all throughout consistently pleaded, both the Trusts were owners hence, argument at the bar contrary to pleadings, should not be taken note of.

Mr.Anindya Kumar Mitra, learned senior counsel would, however, heavily rely on the decision in the case of M/S.Parekh Brothers (supra) where the Division Bench of this Court dismissed a suit based on a notice to quit given by three owners when the tenancy was created by one of them.

The appellant strenuously disputed the locus of the plaintiffs.

The learned Judge did not render any decision on such issue.

Hence, the proposition of law decided in the case of M/S.Fomento Resorts and Hotels LTD.(Supra) would apply.

In the said decision the Apex Court observed, all issues should be decided to have a comprehensive decision.

On the question of leave under Order II Rule 4 the appellant relied upon the case of Vishwambhar (Supra).State of Kerala (Supra).Southern Ancillaries PVT.LTD.(Supra) and Kapil Deo Pandey (Supra).We need not go into this question as the coordinate bench already granted leave that were acted upon.

On the effect of the leave whether it would be prospective or not, we would be giving our opinion soon after.

Mr.Anindya Mitra strongly relied on the decision in the case of State of Kerala (Supra).we find, the same was rendered in a proceeding for criminal contempt.

The proceeding was brought without leave being obtained from the Learned Advocate General.

The learned Advocate General subsequently granted leave that the Apex Court observed, could not cure the defect in the original proceeding.

We wonder, how this could be applied in the present contest.

We, however, find that the Calcutta case in Bengal Electric Lamp Works LTD.(Supra) and the Single Bench decision in Kerala High Court would have some relevance herein.

In Bengal Electric Lamp Works LTD.(Supra).the Division Bench observed, the technicality should not operate having a dominant role to deny substantial justice.

The Division Bench observed, “a notice to quit must be construed not with a desire to find fault……………it must be construed in a commonsense way”.

Similarly, in Kerala case, the learned Single Judge observed, “a notice to quit under Section 106 should not be construed in a ‘pedantic’ and ‘impractitional’ way so as to pick holes and find fault with the notice”.

In the Calcutta case, the plaintiffs approached the Court by filing a suit by three parties on the strength of a notice to quit on behalf of those three parties asserting their right as owner.

The Court ultimately found, the respondent was a lessee under one of them hence, declined to pass a decree in favour of all the three plaintiffs.

The Division Bench negated the contention, other two may be ignored.

According to Division Bench “The blue pencil theory” would authorize the Court in certain circumstances to strike out from a Deed a few repugnant or insensible words.

The Court cannot ignore the plain meaning of the document and strike out few words to suit the convenience.

The appellant lastly cited the age-old principle of signing the summary judgment so pronounced in the case of Kiranmoyee Dasi (Supra).Five principles so enunciated in paragraph 24 of the said decision are well-settled principle of law, once again reiterated by the Apex Court in the case of M/S.Mechalec Engineers & Manufacturers versus M/S.Basic Equipment Corporation reported in All India Reporter 1977 Supreme Court Page-577 would definitely guide us to decide an application of the like nature.

We would be applying the yardstick while coming to the final conclusion.

The respondent cited the Apex Court decision in the case of Siddalingamma (Supra).In this case the widow filed a suit for eviction on the ground of reasonable requirement inter alia for treatment of her husband.

During pendency, her husband died.

She became ill and wanted to have treatment at Bangalore.

She also wanted her sister’s sons to stay with her at Bangalore for their proper education.

The Apex Court ultimately allowed the amendment holding, subsequent need should also be considered.

The appellant would distinguish this case by contending, the Apex Court rendered such decision after considering the evidence on record.

The evidence so came out cured the deficiency, if any, in the pleadings.

Hence, the decision would have no application in the present case.

In the instant case, the amendment was defective, as it did not cure the defect.

We do not agree.

OUR VIEW: BONAFIDE DEFENCE-TRIABLE ISSUE-SUMMARY

JUDGMENT

: In an application of the like nature, the Courts would consider the case made out by the plaintiff and the plausible defence that the defendant could be had as set forth in their pleadings that could resist the claim of the plaintiff.

In Kiranmoyee Dasi (Supra).learned Single Judge of this Court framed a guideline giving five principles to be followed that the Apex Court reiterated in Mechalec (Supra).the principles are as follows: “(a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend.

(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend.

(c ) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence, yet, shews such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff’s claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security.

(d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend.

(e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence.” The above are golden principles to be followed by the Court while deciding an application of the like nature.

If we read all the five principles and try to bring it in one compass we would find, the yardstick would depend upon a bonafide defence being put forward for a just claim of the plaintiff.

Lot was said, legal defence is a bonafide defence.

A defence has to be legal.

Any contention, which does not have legal support, cannot be entertained by Court at any stage.

However, such legal defence must be sustainable.

If someone would raise the plea of limitation he has to show, such defence was sustainable meaning thereby, the material behind raising such contention, should sound logic.

Hence, at the end of the day, the yardstick would be a defence that could be sustained or likely to be sustained.

It need not be, such defence would succeed ultimately at the final hearing.

The Court was only to see, the defence would prima facie sound logic that would be sufficient to deny signing of a summary judgment.

LESSEE-TENANT-PROTECTION: The present litigation would relate to a Deed of lease that expired by efflux of time, yet the parties continued to maintain the relation as landlord-tenant.

Such type of holding over could be dealt with as a monthly tenancy under tenancy law.

The monthly rent in the instant case crossed the outer limit of the protection that a tenant would get under the present tenancy law of the State.

In absence of such protection, the landlord would be entitled to recover possession at any time by terminating the tenancy.

He need not assign plausible reason for the same.

The proper notice under Section 106 terminating the tenancy, would be sufficient to ask for recovery of possession.

Once such notice is issued terminating the tenancy and the tenant does not vacate the landlord would be entitled to file a suit for recovery of possession.

So long the competent Court does not pass the decree, the tenant may continue in possession and the landlord would only be entitled to throw him out after a decree is passed by a competent Court.

In the present case, the landlord terminated the tenancy by serving the notice under Section 106.

The rent as stated above, would exceed the outer limit having statutory protection hence, the tenant would have no sustainable defence.

NOTICE: Lot was said attacking the notice under Section 106 appearing at page 54 to 55 of the paper book filed by the appellant.

According to Mr.Anindya Mitra, learned senior counsel, the lease was executed by Zoroastrian Trust.

The rent was being paid to Zoroastrian Trust whereas the advocate issued notice for Zoroastrian Trust and Olpadwala Trust.

Hence, notice was defective.

The Trust has no legal entity as such, the trustees are the legal owners as custodian of the Trust property for the benefit of the beneficiary.

The notice would indicate, five trustees of Zoroastrian Trust as well as Olpadwala Trust issued the notice.

While doing so, they claimed, both the Trusts were owners of the premises in question.

Even if it was so, the respondent never raised an issue on that score.

The reply to the said notice dated December 29, 2006 appearing at page 96 would not indicate any such objection being raised.

Rather, the tenant offered to pay the municipal tax that the landlord declined to except.

Mr.Anindya Mitra relied on another letter of the tenant dated December 15, 2006 appearing at page 60 of the landlord’s paper book wherein we do not find any complain being made with regard thereto.

On the contrary, the letter would show, the same was addressed to the advocate for both the Trusts.

The parties thus understood their respective rights and obligations.

Purpose of servi