1. This appeal at the instance of the defendant arises out of a suit for eviction on the ground of default and sub-tenancy. The suit was filed on 11-9-71, alleging inter alia that the defendant was in default in payment of rent from March 1971. The defendant appeared on 11-11-71. On 2-12-71, the defendant filed written statement. On 9-3-72, the defendant filed fresh power. On 3-7-72, the plaintiff filed a verified application under Section 17(3) of the West Bengal Premises Tenancy Act and the defendant applied for time. On 26-9-72. the defendant filed a petition under Section 17(2) of the Act with a fresh power. He also filed an application under Section 17(2A)(b) on the same date as also an application under Section 5 of the Limitation Act for condoning the delay in filing the application Under Section 17(2) and 17(2A)(b) on 28-9-72. The said applications were heard on 3-4-73. The application for condonation of the delay in filing the application under Section 17(2) and 17(2A)(b) was rejected. The application under Section 17(3) of the Act filed by the plaintiff was allowed and the defence against delivery of possession was struck out. Thereafter, the suit was heard and a decree was passed on the ground of default. Being aggrieved by the said judgment the defendant preferred the present appeal.
2. Mr. Roy, on behalf of the appellant, contended that there was no cause of action for the suit and as such Section 17 of the Act has no application. In our opinion, the suit was filed after service of notice for default. It is now too late in the day to argue that the suit must go as there is no cause of action. On making a default or subletting there is a cause of action under Section 13(1) of the Act for the plaintiff to file a suit but it is always for the defendant to defend by filing written statement to controvert the statement made in the plaint. But in any case it is clear from the plaint there is a cause of action for filing the suit.
3. Next it is contended by Mr. Roy that the defendant having paid all the amount he has a right under Section 114 of the Transfer of Property Act to avoid the forfeiture of the lease. In our opinion, when the West Bengal Premises Tenancy Act applies Section 114 of the Transfer of Property Act, in so far as forfeiture against default is concerned, cannot be applied. It appears to us that even the Supreme Court goes to the extent in saying that it is not necessary for a landlord to give a notice under Section 106 of the Transfer of Property Act for determination of the tenancy in view of the special provision of the West Bengal Premises Tenancy Act, in particular Section 13(6) of the Act. In absence of such a provision the plaintiff landlord need not issue any notice determining the tenancy as no decree can be passed under a particular provision of the Act unless the landlord can bring his case within the four corners of the statute which controls the relationship between the landlord and the tenant in respect of the premises. Be that as it may, the Division Bench of our High Court in a case reported in (66) 70 Cal WN 676 overruled the Hon'ble single Judge's decision reported in : AIR1965Cal398 inter alia holding that Section 114 of the Transfer of Property Act will not apply to matters coming under the West Bengal Premises Tenancy Act.
4. In that view of the matter, there is no substance in this contention also.
5. In the last argument Mr. Roy contended that the notice was hot served. The notice was issued by registered post with acknowledgment due and there is a presumption under the Evidence Act that the notice must have reached him. In the present case 'acknowledgment due' came back after service though the defendant denied receipt thereof but the learned Judge himself compared the admitted signature as well as the signature in the acknowledgment receipt and came to a finding that this is the signature of the defendant. In that view of the matter, in our opinion, it must be held that the public act-has been done in accordance with the finding of the learned Judge that the notice was duly served. It has been proved by the plaintiff that the defendant was in default in payment of rent from March 1971 and, therefore, the plaintiff is entitled to a decree under Section 13(1)(i) of the Act.
6. The appeal, therefore, stands dismissed. There will be no order as to costs.
7. The deponent is given time to vacate the premises by the 30th September 1983, on condition that he will go on depositing in the court below an amount calculated at the rate of rent last paid, every month, the first of such deposits to be made by the 15th March, 1983, and, thereafter, by the fifteenth of each succeeding month.
8. In default of making any of the deposits as hereinbefore stated the decree will be immediately executable.
9. I agree.