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Amarendra Nath Vs. Bibhuti Bhuson - Court Judgment

LegalCrystal Citation
SubjectCriminal;Tenancy
CourtKolkata High Court
Decided On
Case NumberCivil Suit No. 1203 of 1948
Judge
Reported inAIR1952Cal773
ActsIndian Penal Code (IPC), 1860 - Section 193; ; Calcutta Rent Ordinance, 1946 - Section 12 and 12(1); ; Transfer of Property Act, 1882 - Section 106
AppellantAmarendra Nath
RespondentBibhuti Bhuson
Appellant AdvocateS. Das and ; S.K. Roy Chowdhury, Advs.
Respondent AdvocateA.K. Bhattacharya, Adv.
Cases ReferredBithaldas Chandak v. Lalbehari Dutt
Excerpt:
- p.b. mukharji, j.1. this is a suit instituted on 15th day of april 1948. in this suit the plaintiff claims to recover possession of the top floor of premises no. 115, lower circular road, calcutta. the plaintiff's case, briefly, is that the defendant was a monthly tenant of the said premises of which one of the important conditions was that the defendant would behave properly and/or never use any filthy and abusive language towards the plaintiff or his agents it is a curious condition to find as a term of tenancy but the events will show how it came to be incorporated as a condition. i will describe this condition as the condition of good behaviour. the plaintiff alleges breach of this condition and pleads in para. 10 that the defendant has been guilty of conduct which is a nuisance.....
Judgment:

P.B. Mukharji, J.

1. This is a suit instituted on 15th day of April 1948. In this suit the plaintiff claims to recover possession of the top floor of premises No. 115, Lower Circular Road, Calcutta. The plaintiff's case, briefly, is that the defendant was a monthly tenant of the said premises of which one of the important conditions was that the defendant would behave properly and/or never use any filthy and abusive language towards the plaintiff or his agents It is a curious condition to find as a term of tenancy but the events will show how it came to be incorporated as a condition. I will describe this condition as the condition of good behaviour. The plaintiff alleges breach of this condition and pleads in para. 10 that the defendant has been guilty of conduct which is a nuisance and/or annoyance to occupiers of adjoining or neighbouring premises and continuously uses most abusive and filthy language and threats himself and by the members of his family and that he is liable to be ejected under Section 12(1) (c) of the Calcutta Rent Ordinance of 1946. The notice to quit was given on 6th December 1947.

2. In the written statement, the defendant takes a number of pleas. It is denied that any condition of tenancy is broken. It takes the plea that the notice is invalid and there is also reference to say that the plaintiff exercised some kind of an undue influence. It is specifically denied in the written statement that the defendant ever ill-treated or abused the plaintiff or his agents,

3. The following issues were raised.

(1) Were the conditions and terms of tenancy as pleaded in para. 9 of the plaint true ?

(2) Was there any breach by the defendant as alleged in para. 10 of the plaint ?

(3) Has the defendant been guilty of conduct amounting to nuisance and/or annoyance under Section 12 (1) (c) of the Calcutta Rent Ordinance of. 1946 ?

(4) (a) Is the suit one in which non-compliance with the provisions of the Ordinance as to payment or deposit of rent has been taken as a ground for such eviction? (b) If so, is the suit maintainable without the Rent Controller's order in writing to institute such suit ?

(5) Is the notice to quit valid and legal ?

(6) To what reliefs, if any, is the plaintiff entitled?

4. Issue No. 1.-In para. 9 of the plaint three conditions of the tenancy of the defendant are pleaded. One relates to what I have already referred to, namely, a condition of good behaviour, the exact language of which I will presently quote. The other relates to the regular payment of rent by the 15th of the month next following that for which the rent is payable. There is a third condition which says that violation of any of these terms would render the defendant liable to be ejected by the plaintiff.

5. The allegations in para. 9 of the plaint are not distinctly and separately traversed but in paras. 5 and 6 of the written statement there is a general and combined reference to paras. 7, 8 and 9 of the plaint. In para. 6 of the written statement reference is made to a compromise and that compromise is said to have been under the exercise of undue influence by the plaintiff upon the defendant.

6. On the documents this condition of good behaviour is proved by, first, a letter of 12th November 1944 and, subsequently, by a document and a letter both bearing the date 28th February 1947. The letter of 12th November 1944 is one written by the defendant. The original letter has been marked as Ex. D in this suit. It is in the hand of the defendant himself and signed by him. It reads and records as follows :

'Babu Amarendra Nath Ghosal,

Landlord of 115 Lower Circular Eoad,

Calcutta.

I beg to mention that I am extremely sorry for myself, my son, and my wife and daughter for using abusive language to you and insulting you on the 1st of November last 1944 and I apologies for that and I undertake that this sort of abuse and insult do not recur again in future by either myself or any one of my family members.

Yours faithfully,

Bibhuti Bhuson Chowdhury,

1211-44.'

The next document is a compromise petition which appears at p. 22 of the admitted brief of documents marked Ex. A in these proceedings. This was a compromise petition used in Suit No. 159 of 1945 between the same parties in the Presidency Court of Small Causes, Calcutta. In recording the settlement in that suit, three grounds are given and ground No. 3 is recorded as follows :

'That the defendant shall henceforth behave properly with the plaintiff and his agent and shall never use any filthy and abusive language towards them, in violation of which term he will render himself liable to be ejected.'

This was signed by the defendant and verified to be true by the defendant himself. This, however, was not the only document. On the same date, i.e. on 28-2-1947, the defendant also recorded these terms in a letter addressed to the plaintiff. This letter is marked as Ex. C in these proceedings and it also appears in the admitted brief of documents. The original letter is a typewritten one and bears the signature of the defendant himself and in the margin against different paragraphs also appear the signatures of the defendant. There, again, in that letter in para. 3 the defendant writes in these terms:

'That I am really sorry for the fact that my conduct in the past towards you and your man has been very much unpleasing and has wounded your feelings so mush as you have expressed to me and I do hereby undertake not to transgress the limits of courtesy and decency in my treatment towards you and your agent in future, in violation whereof I shall render myself liable to ejectment and cease to be a tenant under you.'

In this letter his is said and expressed clearly to be a 'condition' of the tenancy.

7. Upon these documents it is quite clear that the condition of tenancy was such as pleaded in para. 9 of the plaint. I have not referred to the other conditions because they tally with the conditions as set out in the document and letter of 28-2-1947 that I have mentioned and because the condition of good behaviour is the only controversy which has been agitated in this trial.

8. The plaintiff's evidence has been in support of these documents. The evidence of the defendant, however, has been an attempt to get out of the effect of these documents. In answer to question 10 on the document recording the compromise the defendant says that it was 'not his voluntary action' but he was induced to write that. He says the document does not bear his signature. By saying that he perjures himself. The document not only does bear his signature but it is verified by him and he admits that much later in cross-examination as he had to in Question 149. He tries to make a case that the contents of these documents although signed and verified by him to be true are false, and in answer to Question 24 he says that became he wanted to avoid the ejectment suit therefore he wrote these false letters and documents. It is impossible for me to accept this evidence of the defendant.

It is necessary to point out here that the defendant is himself a pleader enrolled in the Alipore District Judge's Court. He has himself Said that he is a pleader not only confined to the Police Court but most of his time he deals in Civil matters. I cannot imagine how a lawyer would write such language as appears in Ex. D dated 12-11-1944 that he is extremely sorry not only for himself but for his son, wife and daughter for having used abusive and insulting language to the plaintiff if, in fact, he never used such language. If he wished to avoid the ejectment notice as he says, then I do not see the point why he brings into this letter not only himself but every member of his family.

Then again on the compromise petition 28-2-1947, I cannot accept the evidence of the defendant when he says that this was not the real state of affairs. If it was not so, he as a pleader should have known that he was signing something in the petition which was wholly wrong and false. A person who can persuade himself to take such grossly improper conduct is a person who not only should be disbelieved by a Court of law but who should as a member of the legal profession have known better. His evidence left no room for doubt in my mind and leaves no room for doubt in fact that he has told on oath deliberate untruths. As I have said, he has perjured himself. Mr. Bhattacharjee, learned counsel for the defendant has with considerable wisdom, offered on behalf of his client and in the presence of his client in Court unqualified apology and he has asked for forgiveness for his client having regard to his old age. I will only say this that I will not take the extreme course which the law provides when a witness perjures himself like this because of the apology tendered in Court by counsel but will content myself out of respect for his age by only warning him.

In Question 132 in order to get out of the effect of the compromise petition he says that the whole thing was done in a hurry by the lawyers and he did not know that he had to sign anything and the document was given to him abruptly. I do not believe a Word which the defendant says in this answer. The petition might be in a hurry but why sign also the letter There was no hurry for that letter. It is in this Question 132 he says at first that it does not bear his signature. Then when he was shown his signature he says it is not a 'steady' signature and then when he was asked 'whether it was his signature or not, he broke down to say that it was. I have Said, Ex. c dated 28-2-1947, is the letter which has not only his signature at the bottom of the letter but he has signed his name on the margin of that letter at least on four different occasions against each paragraph. That is the man who wished to say at first that the document did not bear his signature Such brazen- disregard for truth I have rarely come across in a witness in this Court.

9. On the evidence before me I am satisfied that the terms and conditions of tenancy were such as pleaded in para. 9 of the plaint and answer the issue accordingly.

10-15. Issue 2. - In this issue the question turns now as to whether after having made this condition of good behaviour as one of the express conditions of tenancy there was a breach of it by the defendant as alleged in para. 10 of the plaint. No other breach of any other condition has been raised or argued before me. (After considering the evidence on this issue, his Lordship held that the defendant did commit breach of the condition of good behaviour by using abusive language against the plaintiff and his agent).

16. Issue 3. This is the major issue on which has raged the main controversy in this suit.

17. The plaintiff's ease is that by the conduct of the defendant in using filthy and abusive language and in assaulting the plaintiff's durwan the defendant has been guilty of annoyance or nuisance within the meaning of Section 12 (1) (c), Calcutta Rent Ordinance of 194C. According to the plaintiff, the defendant's son Shyamal Kumar Choudhury also abused him and threatened him with the statement that he would 'turn him out by the neck.' That will be found in his answer to Q. 76. I have already discussed in detail the abuse and the terms of the filthy language that the defendant has used against the plaintiff.

18. There is also the evidence given on behalf of the plaintiff by Jyotirmoy Majumdar, a medical practitioner attached to Nil Ratan Sarkar Medical College Hospital. He has his chambers and a laboratory at No. 115, Lower Circular Road on the ground floor. His evidence in answer to q. 9 is that the defendant is in the habit of throwing garbage from the kitchen and other rubbish which soiled his dress when he used to come out of the verandah, the defendant's kitchen being over the varandah of the doctor's chambers. To say the least, it is certainly annoyance. He also says that there is a rain water pipe running in front of his laboratory and the defendant throws all kinds of dirt and stinking water through that rain water pipe which cause great inconvenience to him. In fact the matter took such a serious turn later on that although he mentioned it to the plaintiff the situation not having thereby improved he applied to the Magistrate and the defendant was ultimately warned by the Police. The actual warning of the Police, however, was after the institution of the suit. In cross-examination a suggestion was made to him that the doctor was anxious to enlarge his clinic and had an eye on the1 accommodation of the defendant. It was a vain suggestion as will appear from the QQ. 48-49. I do not find anything on record to justify that suggestion and to hold that the doctor is in any way an interested or a partisan witness.

19. On this aspect of the question on behalf of the plaintiff it has also been contended on the evidence which I have analysed already that the defendant's insistence to keep the gate open during the prohibited hours of curfew was also a cause of great annoyance to the plaintiff.

20. It is necessary in determining the issue to have in mind the exact language in Section 12 (1) (c). It provides that the tenant will not be entitled to the protection of Section12 ''where the tenant has been guilty of conduct which is an annoyance or a nuisance to occupiers of adjoining or neighbouring premises'. It appears to me that in order to attract this clause it has to be established first a conduct of the tenant, secondly that that conduct is a nuisance or an annoyance and thirdly that it is so to the occupiers of adjoining or neighbouring premises. Ordinarily annoyance to a landlord who does not answer the test of being an occupier of adjoining or neighbouring premises will not be sufficient under the Ordinance. In this case the evidence is of the medical practitioner Jyotirmoy Majumder who is an occupier of adjoining or neighbouring fiat in the same premises. The plaintiff himself, although not in his capacity as a landlord, answers also the test laid down in that clause of the Ordinance because the plaintiff himself is also an occupier of adjoining or neighbouring premises. The plaintiff is also a medical practitioner and an M. B. of the Calcutta University and a practising doctor. He is not only the landlord of the defendant but he has also his own chambers in the same premises at No. 115, Lower Circular Road on the ground floor. His residence also is in the adjoining or neighbouring premises. He lives at premises No. 115/5A, Lower Circular Road, a house which is in the same compound with the house in suit.

21. Some argument has been advanced before me as to the meaning of the word 'nuisance' in this clause in the Ordinance. Mr. Bhattacharjee who has argued this case against great odds, contended that it must be confined to proprietary nuisance. I am not disposed to limit the word nuisance only to proprietary nuisance in the context of this particular clause. The section itself does not qualify the word 'nuisance' and it appears to me that it would be unjustifiable to imply and read such a qualification when the language does not indicate it. Noise for instance is a well recognised nuisance' in law. But noise as a nuisance cannot be described as a proprietary nuisance.: Even then it is nuisance in law. The next contention of Mr. Bhattacharjee is that even on this interpretation of the word 'nuisance', mere abase can never be a nuisance. Mr. Das for the plaintiff on the other hand contends that if a man indulges in constant abuse and vulgar language he can certainly be said to make himself a nuisance. It may be so in common parlance, but I do not think it is a nuisance in law. Pushed to its logical conclusion Mr. Das's contention -will lead to the absurd result that every slander or defamation will be also a nuisance. I am not prepared to add such a novelty to the tort of nuisance. Abuse may be the tort of defamation or slander but not the tort of nuisance.

22. But although abuse may not be a nuisance, systematic and regular use of filthy language and habitual conduct of indulging in most obnoxious and vulgar abuses do in my judgment come within the meaning of the word 'annoyance' in this Section of the Ordinance. The facts on the evidence leave no room for doubt that they denote a clear case of annoyance within the meaning of Section 12 (1) (c), Calcutta Rent Ordinance of 1946. Similar provisions are to be found under the English Rent Restriction Acts and the cases decided there have been carefully collected in the 4th Edn. of R. E. Megarry's The Rent Acts, pp. 98-99. According to the authorities mentioned there the word 'annoyance' is said to cover the tenant's systematic discourtesy to his neighbour's visitors or his persistent noisy abuse of the landlord. On systematic discourtesy and noisy abuse the author cites the cases of Shine v. Freedman and Adamson v. Fraser. To my mind the conduct of the defendant on the evidence as I have found is clearly annoyance. It is annoyance to the plaintiff not qua landlord but in his position as an occupier of the adjoining or neighbouring flat in the same house where he has his chambers or in the adjoining house where the plaintiff lives. The effect which the defendant's conduct has on the plaintiff's mind is best stated in his own language. That will be found in his answer to Q. 79. The plaintiff says there:

'I am very unhappy about it. I have a family and my children are growing up. Sometimes I have a feeling that I should leave the house and go away somewhere else. In the midst of filthy language my children should not be allowed to be brought up. My wife is busy in the kitchen which is adjacent to the quarters occupied by the defendant and my wife also objects very much to this state of affairs going on.'

I have no doubt left in my mind that, that is the reasonable reaction of any man who has to live in the midst of such act and conduct as the defendant has shown on the evidence. I adhere to the view I expressed on the meaning and construction of the word 'annoyance' in Kanchanmala Dassi v. Lilabati Debi, 87 Cal. L.J. 332 at p. 341.

23. I, therefore, hold that the defendant-tenant has been guilty of conduct which is annoyance within the meaning of Section 12 (1) (c), Calcutta Rent Ordinance of 1946 and answer this issue accordingly.

24. To my mind the defendant in this case can not have any benefit of this protective provision of Section 12 of the Ordinance. Section 12 of the Ordinance, read as a whole, means that no decree for the recovery of possession shall be made so long as the tenant pays rent and performs the conditions of the tenancy. It is in my judgment essential that these two preliminary conditions of payment of rent to the full extent allowable by the Ordinance and secondly of performance of the conditions of the tenancy must be satisfied before a tenant can be allowed to claim the defence or protection offered to him under Section 12 of the Ordinance. It is only when he does so satisfy them both that the subsequent questions of whether the provisos are attracted or not so as to exclude him again from such protection can arise. Otherwise the application of consideration of the provisos is from this point of view an irrelevant consideration. In my judgment the consideration of the provisos is, on the facts of this case, irrelevant. It is irrelevant because the tenant has not preformed the condition of his tenancy. That condition was the condition of good behaviour and not to use filthy or abusive language It was expressly made a condition of defendant's tenancy. It was made a condition after a long series and miserable record of litigation ever since the defendant came on to the premises. Be that as it may, it is an explicit condition given by him under his hand. If he has broken that condition, then it is not for such a tenant to claim the benefit of Section 12 of the Ordinance. As I have said, before the benefit of Section 12 of the Ordinance can be given to the tenant he must be first a rent-paying and secondly a condition-performing tenant. If he does not satisfy these two tests, Section 12 of the Ordinance is of no avail to him. On the facts of this case I have held that the defendant has broken the condition of good behaviour and has not performed that condition. On that ground also I hold that the provisions of Section 12 (1) of the Ordinance cannot be availed of by the defendant.

25. The language of the section of the Ordinance is clear enough to my mind to produce this result. But in case any reference-is needed to illustrate the principle on which this view is based, reference may be made to the decision of Buck-land J., in Jetha Bhulchand v. F.C. Grace, under the old Calcutta Rent Act of 1920 reported in 26 Cal. W. N. 678 where the learned Judge pithily observed at page 679, 'Where such of these conditions as are applicable are not fulfilled, it is mere waste of time to consider any other plea under the Calcutta Rent Act.' So again in Bithaldas Chandak v. Lalbehari Dutt & Sons, Rankin J. in 25 C. W. N. 967 under the same Act observed at p. 971, 'The Rent Act puts the tenant who complies with its conditions into much the same position as a tenant who is entitled to a term . . . but from the that the word 'condition' is used in the singular and not plural which makes it ambiguous in the sense as to which condition is meant, and this ambiguity entitles the Court to look to what is the context of para. 10 and what, appears just immediately before and after the words 'the said condition,' there is no ambiguity when one reads the whole of para. 10. The language leaves no room for doubt in my mind that when para. 10 is read as a whole, the fair and only construction shows that the cause of action is that the defendant is guilty of conduct which is a nuisance or annoyance to occupiers of adjoining or neighbouring premises. That is expressly stated in that para. 10 of the plaint. It is also expressly stated that the defendant continuously used most abusive and filthy language and threats himself and by the members of his family. If non-payment of rent was the breach that was complained of, then the only reference to Section 12 (1) (c) of the Calcutta Kent Ordinance would be entirely inappropriate and meaningless. [31] It is necessary to observe one other argument which has been made by Mr. Bhattacharjee. It is based on the notice to quit and amounts to this that because the notice stated non-payment of rent as one of the grounds therefore the suit is one for non-payment of rent. I am unable to accept this argument. The notice to quit in this case gives two grounds; one- was irregular payment of rent, and the other was the guilty conduct amounting to nuisance. It is not necessary under the law to set out the grounds in a notice to quit. The contents of a notice to quit and its service are governed by the Transfer of Property Act. The Rent Act or the Rent Ordinance does not affect the question of the notice to quit its requirement or its service. The inclusion of a ground in the notice to quit does not make the suit a suit for eviction on the ground stated on the notice to quit. Whether the suit is on a particular ground or not, the only document which should be referred to and which shows the cause of action is the plaint and not the notice to quit. It is quite true that there can be no termination of the tenancy without a notice to quit and that the notice to quit is a part of the cause of action for eviction. But it is a part because the tenancy has to be terminated and not otherwise. The reason is obvious. First a notice to quit does not require to state any ground whatever. Secondly, suppose for instance, there are a number of grounds given in a notice to quit although such grounds are not necessary to be stated in the notice, and suppose the person giving the notice to quit completely fails to prove any of the grounds stated in the notice to quit, eyen then he has enough cause for eviction. Again, the landlord may not choose to avail of the grounds stated in the notice to quit in suing the tenant. In suing the tenant he might confine himself to a ground which will avoid any legal prohibition that privilege is given to. a tenant who pays his rent and performs Ms conditions and to no one else.'

26. Before I leave this issue it is perhaps necessary to refer to one aspect of the case which Mr. Das learned counsel for the plaintiff, urged. He tried to make a case of nuisance on ,the ground that the defendant had converted the roof of the house into a vegetable garden and, in fact, has been growing fairly longish trees on it too, one of them being called the 'Manasha tree' with a height of certainly about 5 feet. It is true that he has proved that on the evidence. But the fact remains that this is not in his pleading as a ground for eviction. This particular kind of nuisance, if nuisance it be, finds no place in the plaint. That being so, I am not prepared to accept Mr. Das' argument that a fact which is not pleaded even though may be a nuisance should be taken into consideration in determining the suit.

27. Issues No. 4 (a) &(b). - This issue is raised on the construction of the plaint with a view to attract the provisions of Section 14, Calcutta Rent Ordinance of 1946 where it is said that no suit for non-compliance with the provision of this Ordinance as to the payment or deposit of rent has been taken as a ground for eviction, shall be entertained by any Court unless the landlord has been permitted by the Rent Controller by an order in writing to institute such suit or proceeding and has produced before such Court proof that such permission has been granted. It is admitted that no such permission was asked for or obtained for the suit. It is contended that it is not necessary.

28. The substance of the plaintiff's argument is that this is not a suit where non-payment of rent is urged as a ground for such eviction within the meaning of Section 14 of the Ordinance.

29. The main pleading of the cause of action is to be found in para.' 10 of the plaint. Giving my most careful consideration to that paragraph I have come to the conclusion that the breach on which the suit for ejectment has been instituted is the breach which is contemplated in Section 12 (1) (c) of the Ordinance, that is, the clause regarding nuisance or annoyance. Non-payment of rent is not pleaded as a cause of action. There is no claim for any arrears of rent either in the plaint.

30. Mr. Bhattacharjee drew my attention to the pleading in para. 9 where payment of rent is pleaded as one of the conditions of tenancy and he has also drawn my attention to para. 10 which charges the defendant with committing breaches of the said condition without specifying which one of the conditions in para. 9. It is quite clear to my mind that what para. 9 of the plaint does is to set out the conditions, of tenancy and not the breach of the conditions. The cause of action is not the conditions of the tenancy so much as their breach. That breach is pleaded in para. 10 of the plaint. In pleading it is quite true that the words 'said condition' in singular are used. But apart from the fact that the word 'condition' is used in the singular and not plural which makes it ambiguous in the sense as to which condition is meant, and this ambiguity entitles the Court to look to what is the context of para. 10 and what, appears just immediately before and after the words 'the said condition,' there is no ambiguity when one reads the whole of para. 10. The language leaves no room for doubt in my mind that when para. 10 is read as a whole, the fair and only construction shows that the cause of action is that the defendant is guilty of conduct which is a nuisance or annoyance to occupiers of adjoining or neighbouring premises. That is expressly stated in that para. 10 of the plaint. It is also expressly stated that the defendant continuously used most abusive and filthy language and threats himself and by the members of his family. If non-payment of rent was the breach that was complained of, then the only reference to Section 12 (1) (c) of the Calcutta Kent Ordinance would be entirely inappropriate and meaningless.

31. It is necessary to observe one other argument which has been made by Mr. Bhattacharjee. It is based on the notice to quit and amounts to this that because the notice stated non-payment of rent as one of the grounds therefore the suit is one for non-payment of rent. I am unable to accept this argument. The notice to quit in this case gives two grounds; one was irregular payment of rent, and the other was the guilty conduct amounting to nuisance. It is not necessary under the law to set out the grounds in a notice to quit. The contents of a notice to quit and its service are governed by the Transfer of Property Act. The Rent Act or the rent Ordinance does not affect the question of the notice to quit its requirement or its service. The inclusion of a ground in the notice to quit does not make the suit a suit for eviction on the ground stated on the notice to quit. Whether the suit is on a particular ground or not, the only document which should be referred to and which shows the cause of action is the plaint and not the notice to quit. It is quite true that there can be no termination of the tenancy without a notice to quit and that the notice to quit is a part of the cause of action for eviction. But it is a part because the tenancy has to be terminated and not otherwise. The reason is obvious. First a notice to quit does not require to state any ground whatever. Secondly, suppose for instance, there are a number of grounds given in a notice to quit although such grounds are not necessary to be stated in the notice, and suppose the person giving the notice to quit completely fails to prove any of the grounds stated in the notice to quit, eyen then he has enough cause for eviction. Again, the landlord may not choose to avail of the grounds stated in the notice to quit in suing the tenant. In suing the tenant he might confine himself to a ground which will avoid any legal prohibition which the plaintiff is entitled to avoid and so facilitate or expedite his suit.

32. For these reasons I hold that this is not a suit in which non-compliance with the provisions of the ordinance as to payment or deposit of rent is taken as a ground for such eviction and I, therefore, answer issue No. 4 (a) in the negative.

33. Issue No. 4 (b), therefore, does not arise for determination.

34. Issue No. 5 - This issue was abandoned by Mr. Bhattacharjee during the course of his argument.

35. The notice to quit is dated 5th December 1947. It satisfies the requirements for legally and properly determining a monthly tenancy. I, therefore, hold that the notice to quit in this case is valid and legal and answer the issue in the affirmative.

36. Before I come to the next issue as to the reliefs it will be proper in my opinion to briefly record the reasons why I consider that the defendant's testimony is wholly unworthy and discreditable. First, the defendant's attempt to get out of the documents and his undertaking not to abuse gives me the unmistakable impression that he was untruthful. For him it was at first a document which he had 'not signed', then it became a document with 'unsteady signature' and then his admission that he had 'signed' the document. After having signed the undertaking, his next conduct is trying to get out of the terms by the plea that they were beyond the scope of the suit, and, thirdly, the defence of undue influence and coercion between the plaintiff and the defendant. It is a continuous record of litigation from 1934 to 1949. No year passed without some litigation or other. The first ejectment suit was in 1934. Then in 1935 there was a suit on what is called as the hand note. Then in 1936 there was a rent suit. Then, again, in 1937 there was another suit on the promissory note. In 1938 there followed again a rent suit. In 1940 there was another rent suit. In 1944 there was a distress warrant for six months' rents. In 1945 there was another rent suit which was compromised by the document of 28th February 1947. Then followed the present suit in this Court in April 1948. All these previous proceedings were in the Small Cause Courts and in the proceedings on promissory notes and hand-notes the defence systematically stated by the defendant was that no money was due or that the promissory note was executed under undue influence. In spite of all these pleas of undue influence, the defendant submitted to decrees in each one of these proceedings. Even here, as I have already noticed, he referred to the compromise in para. 6 of his written statement as being executed under undue influence. He was cross examined on these suits and on these promissory notes for small sums like Rs 50 or Rs. 49-8-0 and I received the impression from such cross-examination that he wanted to excuse his wrongful refusal to pay even small dues by resorting to the dishonest defence of undue influence.

His answers to questions 226 to 248 which I have already discussed, give me the impression that he is the most unscrupulous witness that I in my experience in these Courts have ever come across.

Then again while giving evidence the defendant in examination-in-chief in answer to question 38 says that he never had any incident with Dr. Majumdar. He repeated that answer in question 52 in cross-examination. Then when he was confronted with the police warning on the complaint of Dr. Majumdar against the defendant, he had to admit that it was so. There is yet again one more illustration of the way in which the defendant has perjured himself in this case (qq. 56 to 58). He says in question 40 that he never had any occasion to speak to the durwan nor did the durwan come to his place to collect any rent. Yet in his letter of 30th October 1947 he was bitterly complaining why the plaintiff's servant was being sent to him to collect the rent. He says at p. 51 of the admitted brief of documents in that letter of 30th October 1947, 'I do not like at all that you will send your servant to me to collect the rent.' He tries at this stage to make a case that he paid rents directly. I am prepared to give him the benefit of doubt so far as the payment of rent direct to the landlord is concerned in the few months in 1947, in fact up to June 1947. But that does not take away the falsehood which he has uttered in question 40 When he said that the durwan never came to collect rent when, he himself expressly stated in the letter dated 30th October 1947 that the servant did come to collect such rent.

Lastly, he answers in question 261 that he does not remember if he was arrested in violation of the curfew order. Then again he starts remembering all the details of the arrest and finally admits that he was arrested in answer to questions 265 to 267. Those are my reasons for finding the evidence given by the defendant to be wholly untrustworthy and for holding that he had no regard for truth. In my judgment, not a word of the evidence that he has given in this suit before me should be believed.

37. Issue No. 6-Reliefs follow as a matter of course on the findings on the issues I have stated There will, therefore, be judgment for the plaintiff for possession, mesne profits at the rate of rent from the first day of January 1948 until delivery of possession and costs.


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