RAMESHWAR ROY v. BAIDHENDRA KINKAR PATRA — 1998 DIGILAW 221 (CAL)

A. B. MUKHERJEE, J. ( 1 ) THIS appeal is directed against the judgment and decree dated 29-6-89 passed by the learned Judge, XII Bench, City Civil Court at Calcutta in Ejectment Suit No. 902 of 1992. A cross-objection preferred by the respondent being C. O. T. No. 2381 of 1990 is also heard along with the appeal. ( 2 ) THE case of the plaintiff/respondent inter alia, is as follows :-The plaintiff/respondent is the owner of a three-storied building being premises No. 5/2 and No. 7, Ramkanai Adhikari Lane, Calcutta-12. The two premises constitute one building, back portion of which is No. 7, Ram Kanai Adhikari Lane. ( 3 ) THE defendant/appellant was the tenant under the plaintiff/respondent in respect of three rooms being the south-western room on the first floor, and two on the ground floor with common bath and privy in the suit premises being No. 5/2, Ramkanai Adhikari Lane, at a monthly rental of Rs. 115/- payable accordingly to the English Calendar. There is a covered verandah running east to west all along the first floor of the premises No. 5/2, Ram Kanai Adhikari Lane described in the plaint as the western verandah. The same has not been let out to any tenant but is meant for common use by different tenants of the premises and also the landlord. ( 4 ) THE defendant/appellant recently forcibly occupied the said western verandah and converted the same into an additional kitchen and started cooking there causing damage to the premises and also causing smoke nuisance and also material deterioration of the building apart from causing annoyance to the plaintiff and the members of his family. The aforesaid acts fell within the provisions of Section 108 (m), (o) and (p) of the Transfer of Property Act. The defendant/appellant had also fixed a concrete slab on the western wall of the said western verandah for the purpose of using as a rack for keeping utensils etc. without the consent of the plaintiff-respondent. The defendant/appellant was also a defaulter in payment of rent since May, 1982. ( 5 ) EARLIER, in 1978 also, the defendant/appellant made an attempt to convert the western verandah into an additional kitchen and the plaintiff/respondent sent an ejectment notice on 25th of December, 1978. without the consent of the plaintiff-respondent. The defendant/appellant was also a defaulter in payment of rent since May, 1982. ( 5 ) EARLIER, in 1978 also, the defendant/appellant made an attempt to convert the western verandah into an additional kitchen and the plaintiff/respondent sent an ejectment notice on 25th of December, 1978. On the receipt of the said notice, the defendant/appellant approached the plaintiff/respondent and requested him not to file any ejectment suit and also immediately removed the kitchen and made the western verandah vacant. ( 6 ) THIS time, the plaintiff/respondent sent an ejectment notice dated 22nd of May, 1982 to the defendant/appellant at his residence by registered post, asking him to vacate the suit premises and to deliver vacant possession of the same on the expiry of the month of June, 1982. The said notice 4 was duly received by the defendant/appellant's son on 24th of May, 1982. Another copy of the said notice was addressed to premises No. 7, Siddheswar Charan Lane where the defendant/appellant carries on his business. It was accepted by the defendant/appellant's brother on 28th of May, 1982. On receipt of the ejectment notice, the defendant/appellant through his lawyer Shri Narayan Ch. Ghosh, Advocate sent a reply admitting that he was using the western verandh as a kitchen, but falsely alleging that he was using the same as a kitchen since the inception of his tenancy. The defendant/appellant used the eastern side room on the ground floor as his kitchen prior to his encroachment of the western verandah. As the defendant/appellant did not vacate the premises in spite of the said notice to quit, the plaintiff/landlord filed the above ejectment suit for eviction khas possession and also mesne profits from May, 1982 till the date of delivery of possession. ( 7 ) THE defendant/appellant contested the suit by filing written statement denying and disputing all the material allegations of the plaint. His case was, that at the time of inception of the tenancy, the plaintiff/respondent allowed the defendant/appellant to use the western verandah as his kitchen and as such it was included in the defendant/appellant's tenancy. At no point of time there was any other kitchen belonging to the defendant/appellant. He also denied the allegation of the plaintiff/respondent of causing damage or nuisance or annoyance to anybody including the plaintiff/respondent. He also denied construction of any structure in any part of his tenancy. At no point of time there was any other kitchen belonging to the defendant/appellant. He also denied the allegation of the plaintiff/respondent of causing damage or nuisance or annoyance to anybody including the plaintiff/respondent. He also denied construction of any structure in any part of his tenancy. ( 8 ) IN the suit, the defendant/appellant filed applications under Sections 17 (2) and 17 (2a) (b) of the West Bengal Premises Tenancy Act, 1956 praying for payment of and/or deposit of rent for the month of May, 1982. Ultimately, the application under Section 17 (2) was not pressed and the petition under Section 17 (2a) (b) was also rejected. The defendant/appellant at last deposited rent for the month of May, 1982 in Court on 9th of March, 1983 and filed an application under Section 151 of Code of Civil Procedure for condonation of delay in making such deposit. The said application under Section 151 of Code of Civil Procedure was rejected on 17th of August, 1983 against which, a revisional application was taken before this Hon'ble Court which was ultimately rejected and the order of the trial Court was confirmed on 13th of March, 1986. In the meantime, the plaintiff/respondent filed an application under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956 which was allowed after a contested hearing by the trial Court by his order No. 56 dated 18th of August, 1988 and the defence against delivery of possession of defendant/appellant was struck out. ( 9 ) THEREAFTER the suit was taken up for peremptory hearing, in course of which, the plaintiff/respondent alone was examined and cross-examined, but, the defendant/appellant could not lead any evidence, as there was no scope for it, in view of striking out of his defence against delivery of possession under Section 17 (3) of West Bengal Premises Tenancy Act, 1956. ( 10 ) IN the suit the following issues were framed :i S S U E S1. Is the suit maintainable?2. Is the defendant a defaulter as alleged?3. Is the defendant guilty of acts amounting to nuisance and annoyance as alleged? ( 10 ) IN the suit the following issues were framed :i S S U E S1. Is the suit maintainable?2. Is the defendant a defaulter as alleged?3. Is the defendant guilty of acts amounting to nuisance and annoyance as alleged? 4 Is the defendant guilty of acts which are in contravention of Section 108, clauses (m), (o) and (p) of the T. P. Act?5was the notice to quit served and is it legal?6is the plaintiff entitled to khas possession of the suit premises?7to what other relief, if any, is the plaintiff entitled? ( 11 ) THE Issues Nos. 2 to 4 were first taken up for hearing by the learned trial Judge and he after considering the evidence on record and also the decision of this Hon'ble Court in 1978 (1) Cal LJ 465 held, that the defendant/appellant by making construction on the disputed western verandah and also converting the same into a kitchen had contravened the provisions of clauses (m), (o) and (p) of Section 108 of Transfer of Property Act. The learned Judge further held that the defendant/appellant was also guilty of causing nuisance, annoyance and also damages to the suit property. Accordingly, the learned Judge by his judgment dated 29th June, 1989 decreed the suit in favour of the landlord/plaintiff/respondent. So far as the question of default was concerned, the learned Judge did not hold in favour of the plaintiff/landlord. 5 The notice for ejectment, however, was found to be legal, valid and duly served upon the defendant. ( 12 ) BEING aggrieved by the said judgment and decree, the defendant/appellant has preferred the present appeal in this Hon'ble Court. A cross-objection has also been filed by the landlord/plaintiff/respondent in the appeal against the refusal by the trial Court to pass a decree on the ground of default. ( 13 ) HEARD the learned Counsel for the appellant/cross-opposite party and also the respondent/cross-objector, who argued in person. A number of decisions have been cited at the bar on the question of the binding effect of the orders passed under Section 17 (2) and 17 (2a) (b) and also on the interpretation of Section 17 (3) of the West Bengal Premises Tenancy Act, 1956. A number of decisions have been cited at the bar on the question of the binding effect of the orders passed under Section 17 (2) and 17 (2a) (b) and also on the interpretation of Section 17 (3) of the West Bengal Premises Tenancy Act, 1956. ( 14 ) ONE of the contentions of the defendant/appellant was, that the Court below had wrongly allowed the plaintiff's application under Section 17 (3) and even if such application was allowed, he should have been allowed to examine himself as a witness or to bring other witnesses in support of his defence. ( 15 ) AIR 1980 SC 587 Shyam Charan Sharma v. Dharamdas was a decision under the Madhya Pradesh Accommodation Control Act, 1961 Section 13 (6) of which, was almost similar to Section 17 (3) of the West Bengal Premises Tenancy Act, 1956. The Supreme Court in its said decision, while discussing the nature of the said Section 13 (6) held, inter alia, that the said section vests in the Court, the discretion to order the striking out the defence against eviction. In AIR 1987 SC 1010 M/s. B. P. Mhemka Pvt. Ltd. v. Birendra Kumar Bhowmick, it was also held, inter alia, that the provisions of Section 17 (3) of the West Bengal Premises Tenancy Act, 1956, are directory and not mandatory as in the said Section the word 'shall' has to be read as 'may'. In 92 Cal WN 908, In Re: Sadhu Chowdhury it was held further that the Court should take a pragmatic view of the matter while disposing of an application under Section 17 (3 ). However, in a subsequent judgment of the Supreme Court in AIR 1988 SC 602 , Mrs. Manju Choudhury v. Dulal Kumar Chandra, while discussing the ambit of the provisions of Section 15 of the Bihar Buildings (Lease, Rent and Eviction) Control Ordinance, which was also in the nature of Section 17 (3) of the West Bengal Premises Tenancy Act of 1956, it was held, inter alia, that in case of failure of the tenant to deposit the arrear rent within the stipulated period, the Court was bound to strike out the defence of the tenant against delivery of possession as a duty is cast upon the Court in such matter to strike out the defence against delivery of possession. ( 16 ) IN the present case, the defendant's application under Section 17 (2) of the West Bengal Premises Tenancy Act, 1956 was dismissed as not pressed and the application under Section 17 (2a) (b) of the said Act was also rejected on contest. The application under Section 151 of Code of Civil Procedure filed by the defendant for condoning the delay in depositing the rent for the month of May, 1982 was also rejected on merits on contest and the revisional application filed against such rejection in this Hon'ble Court was also dismissed on contest. It appears from the records that the trial Court after considering all those facts had in its proper exercise of discretion, allowed the plaintiff's application under Section 17 (3) striking out the defence of the defendant against delivery of possession and as such, there was no illegality in its said order. ( 17 ) SECONDLY, the defence against delivery of possession of the defendant/appellant was struck out by the learned trial Judge following a contested hearing of the application under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956 and hence, under the law, the defendant/appellant rightly was not allowed to adduce any evidence but he was allowed to cross-examine the plaintiff/respondent, who gave evidence in the suit. It was held in the Full Bench decision of this Hon'ble Court in the case of Gurudas Biswas v. Sibasankar Seal, 1975 (1) Cal LJ 1 (FB) : 81 Cal WN 188 (FB) : AIR 1977 Cal 110 (FB), that if the defence against delivery of possession of tenant is struck out, the tenant will only be allowed to challenge the service of notice under Section 13 (6) of the Act. Reading the said Full Bench decision carefully, it would thus be clear that apart from challenging the validity and service of notice, the tenant is precluded from raising any other point when his defence against delivery of possession has been struck out. The Supreme Court in its decision in the case of Modula India v. Kamakshya Singh Das in AIR 1989 SC 162 has also upheld the above Full Bench decision of this 6 Hon'ble Court. Therefore, in our view, the learned trial Judge did not commit any error in not allowing the tenant/defendant to examine himself or to cite any other witness in support of his defence. Therefore, in our view, the learned trial Judge did not commit any error in not allowing the tenant/defendant to examine himself or to cite any other witness in support of his defence. ( 18 ) IN the above suit, the relationship between the plaintiff/respondent and the defendant/appellant as landlord and tenant was not disputed. There was a dispute relating to the extent of tenancy and the quantum of rent. According to the defendant, the tenancy related to three rooms, one on the 1st floor and two on the ground floor and the western verandah situated on the 1st floor with the common user of the bath and the privy and rent according to the defendant was Rs. 172/- p. m. including the charge of electricity, payable according to the English Calendar, while the plaintiff/respondent's contention was, that the tenancy covered three living rooms as stated by the defendant/appellants together with the right to use common bath and privy and the disputed western verandah was not included within the tenancy of the defendant/appellant at all, and the rent according to the plaintiff/respondent was Rs. 115/- p. m. payable according to the English Calendar. ( 19 ) IT is an admitted factual position that the defendant/appellant was inducted as a tenant by the father of the plaintiff/respondent and the defendant/appellant had written a letter at the time of his such induction addressed to the plaintiff/respondent's father, which was marked as Exhibit No. 4 in the suit. From the said letter it clearly appears, that the defendant/appellant had admitted that he took the tenancy of one room on the 1st floor and two rooms on the ground floor with common bath and privy only at the monthly rent of Rs. 115/- payable according to the English Calendar, and the tenancy would commence on and from 1st July, 1969. Nowhere in the said letter there was any whisper about the disputed western verandah, nor was it stated therein at all that such verandah was a part of the defendant's tenancy. The said letter also revealed that the tenant was required to pay the charge of electricity for using lights and fans. Nowhere in the said letter there was any whisper about the disputed western verandah, nor was it stated therein at all that such verandah was a part of the defendant's tenancy. The said letter also revealed that the tenant was required to pay the charge of electricity for using lights and fans. ( 20 ) APART from the said document, the rent receipt dated 29th June, 1969, given by the present plaintiff/appellant on behalf of his father being one month's deposit rent at the time of induction of tenant being Exhibit No. 9, also corroborated the plaintiff/respondent's version of the extent of the tenancy of the defendant/appellant and also the quantum of rent payable by him. So far as the rent receipt being Exhibit No. A-A (2) were concerned, the description of tenancy as mentioned therein, was in respect of the western room on the 1st floor and two rooms on the ground floor at premises No. 5/2, Ram Kanai Adhikary Lane, Calcutta-12 only and the rent was also mentioned as Rs. 115/- p. m. and nowhere there was any mention of the disputed western verandah in the said exhibits. No doubt, in Exhibit No. 8 being a letter from the defendant/appellant's lawyer dated 24th of June, 1982 addressed to the plaintiff/respondent it was stated, inter alia, that the defendant/appellant was a tenant under the plaintiff/respondent at a monthly rental of Rs. 115/- in respect of the south-western room on the 1st floor and two rooms on the ground floor with common user of bath and privy and electricity and other amenities at premises No. 5/2, Ram Kanai Adhikary Lane, Calcutta-12, and since the inception of his tenancy, the defendant/appellant had been using the disputed covered verandah as his kitchen and the plaintiff/respondent did never make any protest for such user, and as the western verandah was being used exclusively by the defendant/appellant as cooking in the period of 12 years since the inception of his tenancy, it conclusively proved that the said covered verandah also was within the tenancy of the defendant/appellant and as such his user was not wrongful and illegal; but the said fact was not corroborated in evidence at all in the suit. The plaintiff/respondent also in his evidence as P. W. 1, had categorically stated in his examination-in-chief that the tenancy of the defendant/appellant was in respect of the south-western room on the 1st floor and two rooms on the ground floor with common bath and privy at premises No. 5/2, Ram Kanai Adhikari Lane, Calcutta-12, and he had forcibly and illegally occupied the disputed covered western verandah on the 1st floor which was not within his tenancy, and he had thus deprived the plaintiff/respondent from the right of user of that covered verandah which was converted into an additional kitchen and that he had also constructed a concrete slab on the western wall of the said covered verandah. In cross-examination also, the plaintiff/respondent could not be shaken in any way, and he categorically denied the suggestion that the western verandah was included within the tenancy of other 7 tenants or within the defendant/appellant's tenancy. He further stated that the disputed western verandah was under his occupation. ( 21 ) LET us now see whether the defendant being a tenant commits any act for which the landlord can get a decree for recovery of possession of the suit premises. In other words, whether the acts of omissions on the part of the defendant/appellant as alleged in the plaint, come within any of the provisions of Section 13 (1) of the West Bengal Premises Tenancy Act, 1956. The plaintiff/respondent filed the suit for ejectment on the grounds that the plaintiff/respondent contravened the provisions of clauses (b), (d), (e) and (i) of Section 13 (1) of the West Bengal Premises Tenancy Act, 1956. Though the plaint did not specifically mention the aforesaid clauses but from the averments made in the plaint it appears, that according to the plaintiff/respondent, the defendant/appellant contravened the aforesaid provisions, and as such, he prayed for a decree for ejectment. The Ld. trial Judge negatived the ground of default but upheld the allegation of committing nuisance, annoyance and also contravention of the provisions of clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. ( 22 ) IN course of his evidence the plaintiff/respondent as P. W. 1 stated that the defendant/appellant by using western verandah on the 1st floor of the suit premises had deprived the plaintiff of his right to use the same. ( 22 ) IN course of his evidence the plaintiff/respondent as P. W. 1 stated that the defendant/appellant by using western verandah on the 1st floor of the suit premises had deprived the plaintiff of his right to use the same. The question, that is to be determined is, whether the forceable user of the disputed western verandah and making illegal construction thereon and also illegal conversion of the same by the defendant/appellant thereby depriving the plaintiff/respondent and members of his family and other tenants residing on 1st floor of the suit premises from using the said verandah, amount to contravention of any of the provisions of clauses (m), (o) and (p) of Section 108 of Transfer of Property Act and also amount to nuisance and annoyance. ( 23 ) THE Ld. trial Judge while deciding the Issues Nos. 2 to 4 though observed that the disputed tenancy did not include the disputed western verandah on the 1st floor of the premises, which the defendant/appellant was admittedly using as kitchen, and the tenancy of the defendant/appellant consisted of three rooms - one on the first floor and two rooms on the ground floor with common bath and privy, but he held that admittedly, the defendant was using the disputed western verandah on the first floor as his kitchen which was not included within his tenancy, and thereby causing annoyance, nuisance and damages and obstruction to the plaintiff and other tenants. Following the decision in Krishna Das Roy v. Basanta Kumar, 1978 (1) Cal LJ 465, the learned trial Judge further held that the defendant's such acts not only amounted to causing nuisance, annoyance, obstruction and damages, but also amounted to contravention of the provisions of clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, as he had converted the disputed western verandah into a kitchen and had constructed a slab on the wall of such verandah. ( 24 ) CLAUSES (m), (o) and (p) of Section 108 of the Transfer of Property Act, 1956, relate to lease of immovable property. Section 105 of the Transfer of Property Act defines a lease of immovable property as follows :"s. 105. ( 24 ) CLAUSES (m), (o) and (p) of Section 108 of the Transfer of Property Act, 1956, relate to lease of immovable property. Section 105 of the Transfer of Property Act defines a lease of immovable property as follows :"s. 105. A lease of immoveable property is a transfer of a right to enjoy such property, made for certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent. " ( 25 ) THE leases recognised by the said Section 105 are- (i) leases for a certain time, (ii) periodic leases, (iii) leases in perpetuity. So far as periodic leases are concerned, such leases may be leases from year to year or from month to month. ( 26 ) IN Section 106 of the said Act it is also made quite clear that in the absence of a contract or local law or usage to the contrary, a lease of immovable property for any purpose other than for agricultural or manufacturing purposes shall be deemed to be a lease from month to month. ( 27 ) SECTION 108 of the Transfer of Property Act deals with the rights and liabilities of the lessor and the lessee in respect of the lease-hold property and clauses (m), (o) and (p) as mentioned above form part of the rights and liabilities of the lessee in such a property. All those rights 8 and liabilities, however, must therefore relate to the lease-hold property, i. e. the immovable property leased out by the lessor to the lessee. So far as the property other than the lease-hold property is concerned, clauses (m), (o) and (p) of Section 108 of Transfer of Property would not be attracted in respect of such other property, inasmuch as, the word 'property' as mentioned in clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act would mean only thepremises demisedand not any other property or premises. This is simply because of the fact that if the tenant occupies land or property other than the lease-hold property, he is not to be treated as a tenant in respect of such excess land or premises unless there is any such contract, and in the absence of any such contract, his said occupation would be that of a trespasser and/or unauthorised occupant, but clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, would not be attracted in such a case. (Emphasis added) ( 28 ) ADMITTEDLY, the disputed western verandah is not a part of the appellant's tenancy and it within the occupation of the plaintiff landlord as per his own statement since, the plaintiff/respondent in the plaint had categorically stated that the disputed western verandah was not included within the tenancy of the defendant/appellant and/or it was not a part of his tenancy as his tenancy comprised of one room on the first floor, two rooms on the ground floor and user of common bath and privy. The learned trial Judge also came to a categorical finding that the disputed western passage on the first floor of premises No. 5/2, Ram Kanai Adhikari Lane, Calcutta-12, was not within the tenancy held by the defendant/appellant in the suit premises. In such view of the matter, even if the defendant/appellant had illegally and/or forcibly occupied the said western verandah and converted the same into a kitchen and also made construction on the same, thereby committing nuisance and annoyance to the plaintiff/respondent, the plaintiff/respondent being the owner thereof should bring proper proceeding to get possession of the said verandah by ousting the defendant/appellant therefrom, treating him as a trespasser and/or unauthorised possessor of the said verandah, but cannot evict the defendant/appellant from his tenancy on the ground that his such acts amount to contravention of clauses (b) (d) and (e) of Section 13 (1) of the West Bengal Premises Tenancy Act, 1956 as according to us clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, would only apply to the premises demised and not to any other premises or building. (Emphasis added) ( 29 ) SO far as the Bench Decision of this Hon'ble Court in the case of Krishna Das Roy v. Basanta Kumar Sett, 1978 (1) CLJ 465, relied upon by the trial Court is concerned, perusing the said judgment it would appear that the facts of the said case were somewhat different. In that case the appellant was a tenant in respect of one bed room on the first floor and one kitchen with the right of user of common bath and privy and filtered water tap on the ground floor of premises No. 56/1, Pathuriaghata Street, Calcutta. The defendant had blocked the passage/verandah in front of his bed room with a door installed in front of it and converting the said passage/verandah into a room and using the same for cooking purpose. This Hon'ble Court found that admittedly, the said passage was not within the tenanted portion of the appellant but without which the tenanted portion could not be used at all as without using the disputed verandah and/or passage the ingress to and egress from the appellant's tenancy was not possible at all and the tenant had blocked the only passage leading to his tenanted room by fixing a door. This Hon'ble Court further found that there were several tenants in the suit premises and there was common entrance for all of them and it was not open to one of such tenants to block any portion of the common passage so that other tenants would not have any ingress to and/or egress from their tenancies. On those facts, this Hon'ble Court held that any obstruction of and/or construction on the said passage would come within the mischief of the clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, thereby giving the landlord a right to get an eviction under Section 13 (1) of the West Bengal Premises Tenancy Act. The judgment of this Hon'ble Court as referred to above therefore is quite distinguishable on facts and in our view does not come in aid of the plaintiff/landlord in any way. The judgment of this Hon'ble Court as referred to above therefore is quite distinguishable on facts and in our view does not come in aid of the plaintiff/landlord in any way. ( 30 ) IN the present case, as we have already observed, the plaintiff/landlord in the plaint and in his evidence had categorically stated that the 9 disputed western verandah was not part of the tenant/defendant's tenancy and the said verandah was being used by the landlord and the other tenant of the premises. Nowhere it was stated by the landlord that the said verandah was the only entrance for the other tenant to his tenanted portion, or that the defendant also could not use his tenanted portion without the said passage. Moreover, the landlord in his cross-examination had also clearly admitted that the disputed western verandah was not included in the tenancy of the other tenant also, but it was within the landlord's occupation. If this be the version of the landlord, then it would amount to forceable occupation of a passage belonging to and under the occupation of the landlord by the tenant for which the tenant is to be treated as a trespasser and he is to be evicted from the same as such, but such forceable occupation cannot be equated with the provisions of Section 108 (m), (o) and (p) of the Transfer of Property Act, nor the tenant can be held guilty of contravening such provisions of law for his such forceable occupation of a portion of the building which was under the exclusive occupation of the landlord. Over and above the other tenant of the disputed premises also had not deposed in the suit making any allegation that the alleged acts on the part of the defendant had also caused annoyance to him and that his ingress to and/or egress from his tenanted portion was affected thereby. In the present case the landlord was the sole witness on behalf of the plaintiff and he did not cite any other person as his witness in the suit. We therefore hold that the appellant, in the facts and circumstances of the case, cannot be held guilty of violating clauses (b), (d) and (e) of Section 13 (1) of West Bengal Premises Tenancy Act, 1956. The findings of the learned trial Judge on Issues Nos. We therefore hold that the appellant, in the facts and circumstances of the case, cannot be held guilty of violating clauses (b), (d) and (e) of Section 13 (1) of West Bengal Premises Tenancy Act, 1956. The findings of the learned trial Judge on Issues Nos. 2 to 4 therefore are not correct and cannot be sustained in law for the reasons as aforesaid, and are therefore set aside. so far as the validity and legality of notice to quit as served upon the defendant/appellant in the present case is concerned, considering the facts and circumstances of the case and also Exhibits 5, 6-6a and 7-7a we hold, concurring with the finding of the trial Court on the notice point, that the notice was legal, valid and duly served upon the defendant. ( 31 ) SO far as the merit of the cross-objection is concerned, we are of opinion that the contention of getting a decree for ejectment on the ground of default under Section 13 (1) (i) of the West Bengal Premises Tenancy Act was rightly negatived by the trial Court. The decision, reported in 1988 (1) RCJ 306 (Cal) being Mrs. G. Avaiat v. Malik Jafar Ahmed is exactly on the point. It was a suit for ejectment on the ground of default as well as reasonable requirement. When the notice was issued the tenant was defaulter only for one month. The landlord wanted to include the post notice default to claim that the tenant defaulted for two months within a period of 12 months. The Division Bench did not accept the claim of the landlord and held that the landlord could not include the post notice default to obtain a decree for eviction on the ground of default and as on the date of issuing of the notice the tenant had defaulted for one month only the landlord cannot get the decree for eviction on the ground of default. This view was also followed by the Bombay High Court in 1986 (2) RCJ 169 (Bom) in an eviction case under Bombay Rent Control Act of 1947. There the High Court found that the tenant was not a defaulter on the date when the notice was issued and suit was filed. This view was also followed by the Bombay High Court in 1986 (2) RCJ 169 (Bom) in an eviction case under Bombay Rent Control Act of 1947. There the High Court found that the tenant was not a defaulter on the date when the notice was issued and suit was filed. The landlord pleaded that during the pendency of the suit, the tenant did not deposit rent month by month and as such he was entitled to evict the tenant on the ground of default. It was held, that the right of the landlord to evict the tenant on the ground of default accrues only if the rent was in default and in the absence of default, there was no ground to issue notice to pay the arrears or to deposit the same in Court and to file a petition for eviction on the ground of default. While dealing with the provisions of the Delhi Rent Control Act under which the landlord could evict a tenant under Section 14 (1) (a) of the said Act on the ground of default, the Supreme Court in its decision in AIR 1989 SC 1652 held inter alia, that the arrears of rent envisaged by Section 14 (1) (a) of the said Act were the arrears demanded by the notice for payment of arrears of rent but the arrears could not be extended to cover the rent which had fallen due after service of the notice. ( 32 ) IN the present case, the default of the defendant at the time of issuing the notice of ejectment could not be more than a month and as such in spite of the rent for the month of May, 1982 not being deposited or paid, the landlord could not get the benefit of Section 13 (1) (i) of the West Bengal Premises Tenancy Act in the suit, so 0 as to claim that the tenant made a default in payment of rent for two months within a period of 12 months. Therefore, we come to the conclusion that there is no merit in the cross-objection preferred by the plaintiff/respondent and the same is also dismissed. ( 33 ) ACCORDINGLY, the appeal is allowed and the judgment and decree of the trial Court are hereby set aside. So far as the cross-objection filed by the defendant/respondent/cross-objector is concerned, that is also dismissed for the reasons as aforesaid. ( 33 ) ACCORDINGLY, the appeal is allowed and the judgment and decree of the trial Court are hereby set aside. So far as the cross-objection filed by the defendant/respondent/cross-objector is concerned, that is also dismissed for the reasons as aforesaid. ( 34 ) THERE would be no order as to costs. ( 35 ) I agree. Order accordingly.