Monjula Bose, J.
1. Sahiram Chowdhury theplaintiff, instituted this Suit for self and as Karta of a Mitakshara joint Hindu family carrying on business under the name and style of 'Sahiram Mahabir Prosad' claiming a decree for Rs. 47,500/- as arrears of rent, for the period December 1, 1973 to June 30, 1975, Rs. 3,800/- as interest and costs.
2. The case in the plaint is that the defendant is a monthly tenant under the plaintiff in respect of a portion of premises No. 9, Rishi Bankim Chandra Road, Calcutta (hereinafter referred to as the said premises) at a rent of Rs. 2,500/- per month according to the English Calendar commencing from November 16, 1973 under terms and conditions recorded in an agreement dated January 31, 1974. It is alleged that the defendant paid rent in respect of the said premises from Nov. 16, 1973 to November 30, 1973, but failed to pay further rent from December, 1973 to June 1975. Apart from arrears of rent for the said period the plaintiff also claims a further sum of Rs. 3,800/- by way of interest at the rate of 8% per annum under the provisions of the West Bengal Premises Act
3. In the written statement filed on behalf of the defendant it is denied that the defendant was a tenant under the plaintiff on the terms as alleged in the plaint. It is contended that the plaintiff had agreed to make arrangements for supply of additional electricity load of 60 H. P. in the said premises and on the basis thereof on November 16, 1973, an agreement of lease for a period of 20 years was entered into and recorded in the document dated January 31, 1974. The plaintiff having broken the said fundamental terms of agreement it is contended that the defendant is not obliged to pay any rent to the plaintiff. It is admitted that 15 days rent was paid to the plaintiff for the month of November, 1973. It is alleged that the plaintiff has no cause of action.
4. By consent documents disclosed by letters dated December. 18 and December 21, 1978 being certified copies of records in Title Suit No. 84 of 1975 (Sahiram Chowdhury v. Laxmi Devi Goel) in the Chinsura Judges' Court including the Judgment therein; a copy of the agreement of lease dated January 31, 1974 and of the letter of demand dated October, 1974 were admitted without formal proof and tendered as Exhibits 'A' 'B', 'C1 and 'D' respectively.
5. The parties went to trial on the following issues settled at the hearing:--
1. Is the defendant a monthly tenant under the plaintiff on the terms and conditions as alleged in para 1 of the plaint?
2 (a) Was there any arrangement and/or understanding between the plaintiff and the defendant as alleged in para 6 of the written statement?
(b) Was there no obligation on behalf of the defendant to pay rent as alleged in para 18 of the written statement?
3. Has the plaintiff no cause of action against the defendant?
4. To what relief if any is the plaintiff entitled?
6. Goaldas Baldoa an accountant of Sahiram Mahabir Prosad was the only witness for the plaintiff. He stated that defendant is a tenant of the said premises under the plaintiff at a monthly rent of Rs. 2,500/- p. m., under an agreement of tenancy which is correctly recorded in Exbt. 'C'. No rent was paid after payment of only 15 days' rent. The plaintiff has since obtained a decree for eviction against the defendant from the Chinsura court. In spite of demands no rent has been received for the period December, 1. 1973 to June 30, 1975.
7. In cross-examination he stated that the plaintiff's claim is on the basis of Ex. 'C'.
8. No witness was called on behalf of the defendant.
9. Mr. A. Mitra, learned Advocate for the plaintiff, contended that there was a relationship of landlord and tenant between the parties and the defence taken was that there was no obligation to pay rent as plaintiff had failed to arrange for an additional electricity load of 60 H. P. in the said premises. There being no specific denial of the relationship of landlord and tenant and the commencement of the tenancy from the 16th November, 1963 the defendant was bound to pay the agreed rent which was payable by the 15th day of every month.
10. It was further contended that the denials of the defendant in her written statement not being specific and merely evasive must be taken to be admissions. The defendant had never contended specifically that she was not a monthly tenant nor has she denied the terms and conditions of the document dated January 31, 1974. By the order dated March 16, 1973 under Section 17 (3) of the West Bengal Premises Tenancy Act, 1958 inTitle Suit No. 84 of 1976 the defendants defence against delivery of possession of the said premises had been struck out. In the written statement filed in the said proceedings it was admitted that the tenancy commenced from November 16, 1973 at a rental of Rs. 2,500/- p. m. according to the English Calendar month. It is contended that in view of the aforesaid the defendant was not entitled to urge that she was not a monthly tenant in the said premises. This point was in any event res judicata. The judgment in the said Title Suit No. 84 of 1976 (Ex. 'B') established the plaintiff's case of a monthly tenancy. Finally, it was contended that the defendant admittedly being in occupation of the said premises was in any event, liable to pay compensation even if it was held that there was no monthly tenancy.
11. Mr. S. K. Kapoor, learned Advocate for the defendant, submitted on the other hand that the case of monthly tenancy was not supported by any evidence adduced. Ex. 'C', the solitary document of tenancy indicated that there was a lease for a period and not a monthly tenancy. The words 'demised' 'lessor' 'lessee' 'forfeiture clause' in the document destroyed the case of monthly tenancy. He finally contended that the Deed not being registered, was inadmissible in evidence under Section 107 of the T. P. Act
12. In support of his contentions Mr, Kapoor cited Ariff v. Jadunath Majumdar reported in (1931) ILR 58 Cal 1235 for the proposition that equitable doctrines could not be applied to nullify the statutory requirements and if the lease was unregistered the transaction was void. He also cited In the matter of Jambad Coal Syndicate Ltd. reported in AIR 1936 Cal 628 for the proposition that rent could not be recovered on the basis of an unregistered Deed. He also contended that the plaintiff's claim throughout being based on a contractual tenancy, the plaintiff could not establish such claim on the basis of occupation.
13. Mr. Kapoor further submitted that the Title Suit No. 84 of 1975 and the decision therein did not affect the defence in this suit as (i) The Tenancy Act covered leases up to a period of 20 years. (ii) The Chinsura Court not being called upon to determine whether there was a monthly tenancy of a lease, no question of res judicata could arise, (iii) The application and order under Section 17 (3) of tha Tenancy Act indicated that the defendantwas precluded by law from defending the proceedings and there was no decision as to the nature of the defendant's tenancy. In this context he cited Kailas Mondal v. Baroda Sundari Dasya reported in (1897) 1 Cal WN 565.
14. Mr. Kapoor, also cited in this context Modhusudan Saha Mondul v. Brae reported in (1889) ILR 16 Cal 300 (FB) and Ram Gobinda Daw v. Smt. H. Bhakta Bala Dassi, reported in : 3SCR340 .
15. He next contended that the written statement in Title Suit No. 84 of 1975 at best could be relied on by the plaintiff to urge only a plea of estoppel and not res judicata.
16. Mr. Mitra for the plaintiff contended in reply that it was not in issue whether the defendant was a lessee under a Deed of lease or a monthly tenant of the defendant, Moreover having admitted in para 7 of her written statement that an agreement to grant a lease was recorded in the Deed dated January 31, 1974 it was no longer open to the defendant to urge that the said document was a Deed which was required to be registered.
17. Ex. 'C' was merely an agreement to grant a lease and such a document was not required to be registered.
18. He next contended that assuming the said document was a lease, if a tenant was inducted under a void deed of lease, a monthly tenancy would come into existence and nothing prevented the Court in considering terms of the lease as terms of the tenancy. In support of this proposition he relied upon Chandra Nath Mukherjee v. Chulai Pashi reported in : AIR1960Cal40 , where a Kabuliat though registered was found to be unilaterally executed and thus invalid. The Court however held that since the defendants were let into possession and rents were received from them by the plaintiff, a lease came into existence by operation of Section 106 of the T. P. Act and the terms of Deed could be looked into and neither Section 49 of the Registration Act nor Section 91 of the Indian Evidence Act would bar its admissibility. He contended that the defendant being admittedly in possession since November, 1973 there being no dispute as to the rate of rent payable and in fact such rent having been paid at least for 15 days the plaintiff's claim was sufficiently established. He cited Sudhir Kumar v. Dhirendra Nath reported in (1957) 61 Cal WN 23 at p. 25 for the proposition that possession under a void lease accompanied by payment andacceptance of rent led to a presumption of monthly tenancy.
19. He submitted further that it was not the plaintiff's case that a tenancy was created by this Deed. Tenancy commenced on November 16, 1973 as admitted in the written statement and it could not be said that possession was obtained by the defendant in November, 1973 under the Deed of January 1974. The deed merely recorded the terms of tenancy which came into existence earlier.
20. I have given my anxious thoughts to the respective submissions of the parties, and have come to the conclusion that the submissions made on behalf of the defendant though seeming attractive are not acceptable. The distinction between a lease and agreement for lease cannot be ignored. Ex. 'C' was only an agreement for a lease and did not result in transfer of interest in the said premises. This was not a lease which required registration. The decisions cited in this context for the defendant, do not apply to such facts.
21. In my view, the relationship of landlord and tenant between the parties was never seriously challenged at any material time. In the written statement neither the relationship of landlord and tenant nor the agreed monthly rent of Rs. 2,500/- was specifically denied and as such must be taken to be admitted. It appears that the dispute raised was not that rent was not payable on the admitted tenancy but that the defendant was not obliged to such rent for the particular reasons alleged viz., failure to arrange for additional electricity. The defendant did not adduce any evidence to establish the case pleaded namely that the plaintiff had agreed to make arrangements for supply of additional electricity load on the basis whereof in November, 1973 an agreement of lease for a period of 20 years was entered into. The relationship of landlord and tenant entitling the plaintiff to a decree for arrears of rent appears to be amply proved by the following :
(i) No specific denial of such relationship in pleadings;
(ii) Admission in the earlier written statement filed in Title Suit No. 84 of 1976 that the defendant was a tenant under 'Sahiram Mahahir Prosad' the business name of the Hindu undivided family at a rent of Rs. 2,500/- per month.
22. All proceedings in the said Title Suit No. 84 of 1976 were had on the basis that the defendant was a monthly tenant in the said premises. The contention of the defendant that the plaintiff is notentitled to succeed in his claim for arrears of rent on an unregistered document of lease has not been pleaded in the written statement nor any issue was raised thereon. Assuming the transaction qua lease was void the original induction of the defendant in the said premises as a tenant, payment and acceptance of a monthly rent of Rs. 2,500/- for the first 15 days and the absence of any challenge by the defendant either in her pleadings or by any evidence as to the quantum of rent payable, in my view sufficiently establish a monthly tenancy on an agreed rent on which the plaintiff is entitled to base his claim for arrears of rent.
23. For the reasons aforestated, I answer the issues as follows :--
(b) not pressed.
3. Yes, the plaintiff has a cause ofaction for recovery of rent onthe basis of monthly tenancyagainst the defendant.
24. By reason of the determination ofthe said issues the plaintiff succeeds inthis suit. There will be a decree forRs. 51,300/- in favour of the plaintiff withinterim interest and interest on judgmentat 6% per annum. The plaintiff is alsoawarded the costs of the suit. Certified fortwo Advocates. There will be a stay ofthe operation of the decree for a periodof three weeks upon the defendants depositing within a week a sum of Rs. 40,000/-as directed by the order dated January 7,1976. In default, the order of stay willstand vacated.