Judgment : BISWANATH SOMADDER, J. (1.) THE principal issue that arises for consideration in the instant appeal is whether the Honble First Court erred in law in refusing to pass a summary judgement and decree for recovery of vacant and khas possession of the entire tenanted portion under the provisions of Chapter XIIIA of the Original Side Rules of the High Court at Calcutta. (2.) THE impugned order of the Honble First Court, being an order dated 26th july, 2006, inter-alia, granted liberty to the defendant to defend the suit by filing written statement. By the said impugned order the defendant was also directed to pay to the plaintiff the actual rent collected by them month by month from kolkata Port Trust and Steel Authority of India Limited, who are sub-tenants of the defendant. The plaintiff was directed to appropriate the same in protanto satisfaction of their claim, subject to the result of the suit. The defendant was further directed to pay month by month rent @ Rs. 5.00 per sq. ft. for the remaining area under occupation of the defendant. The defendant was also directed to pay the proportionate municipal tax as well as the electricity charge to the plaintiff. The plaintiff would be, however, obliged to raise appropriate bill therefor with supporting documents of proof of payment to the municipal authority as well as electricity authority. The payments to be made by the defendant and received by the plaintiff would be without prejudice to the rights and contentions of the parties in the suit. There was also a default clause in the impugned order whereby the Honble First Court directed that in case of default of payment of monthly rent for two months at the rate so stipulated in the impugned order, or the municipal taxes or the electricity charges, there would be decree in terms of prayer (a) of the masters summons. In such case the suit would only be heard on the issue of mesne profit. (3.) AGAINST this impugned judgement and order, the plaintiff has preferred the instant appeal. (4.) THE plaintiff has set out the grounds of challenge of the impugned judgement and order in the Memorandum of Appeal filed before us. In such case the suit would only be heard on the issue of mesne profit. (3.) AGAINST this impugned judgement and order, the plaintiff has preferred the instant appeal. (4.) THE plaintiff has set out the grounds of challenge of the impugned judgement and order in the Memorandum of Appeal filed before us. (5.) IN the stay application it has been stated, inter-alia, that the appellant/plaintiff has accepted the rent and electricity charges paid by the respondent/defendant in terms of the impugned order without prejudice to its rights and contentions and that the appellant/plaintiff required the tenanted portion and the continued occupation thereof by the defendant/respondent directly and/or through its sub-tenants was causing irreparable loss and prejudice, both financially as also otherwise. (6.) FOR convenience, the facts of the case, as presented before the Honble First court, are set out hereinbelow:-One Ram Kumar Bangur and others (hereinafter referred to as "bangurs") were the lessors in respect of the premises no. 4, Fairlie place, Kolkata. By a deed of lease dated February 7, 1927 Bangur granted lease in favour of M/s Kilburn and Company. The said kilburn and Company was subsequently amalgamated with Macneill and berry Ltd. By Deed of sub-lease dated November 14, 1969, the said sub-lessor granted further sub-lease in favour of the plaintiff abovenamed for the unexpired residuary period of 999 years under the head lease dated February 7, 1927. (7.) A portion enjoyed by the sub-tenant, Steel Authority of India Limited was surrendered in favour of the defendant Second suit was filed by the plaintiff, inter-alia, restraining the defendant from letting it out again to any third party. An order of status quo was passed by City civil Court which is still continuing as would appear from the xerox copy of the order sheet produced in court. In all the writ petitions as well as suits in effect the plaintiff was not successful in having the electricity charges and/or municipal taxes paid by or realized from the tenant, being the defendant in question. (8.) FIRST writ petition was filed in 1992 by the plaintiff for a declaration that the defendant was obliged to pay the electricity charges as well as commercial surcharge in addition to the rent and for other reliefs. The plaintiff made two more interim applications in the said writ proceeding, however, was unsuccessful in obtaining any order therein. (8.) FIRST writ petition was filed in 1992 by the plaintiff for a declaration that the defendant was obliged to pay the electricity charges as well as commercial surcharge in addition to the rent and for other reliefs. The plaintiff made two more interim applications in the said writ proceeding, however, was unsuccessful in obtaining any order therein. (9.) A civil suit was filed by the plaintiff in this court being C. S. No. 9 of 1999 as against the defendant for a declaration that the defendant was not entitled to part with possession of any part of the premises in question and they were obliged to pay electricity and municipal charges to the plaintiff. In the said suit it was contended on behalf of the plaintiff that the tenancy was governed by the West Bengal premises Tenancy Act, 1956 Written statement was filed by the defendant. The said suit is still pending. (10.) N 2002, an interim application was made by the plaintiff in the said suit for a mandatory injunction directing the defendant to forthwith pay Rs. 51. 00 lacks and odd on account of electricity and municipal charges. The said application was dismissed on July 9, 2003. (11.) THE second suit was filed, being Title Suit No. 1470 of 2000 by the plaintiff before the City Civil Court, inter-alia, praying for a declaration that the defendant had no right to transfer or alienate any portion of the tenanted premises. In the said suit it was contended that the High Court suit was filed by the plaintiff for fair rent, eviction and other reliefs. In the said suit, the order of status quo was obtained by the plaintiff as discussed hereinbefore. (12.) SECOND writ petition was filed being W. P. No. 1774 (W) of 2002 making almost identical prayers. However, the second writ petition was dismissed as withdrawn by an order dated August 28, 2002. (13.) ON June 4, 2003 a notice to quit was served by the advocate for the plaintiff which was, however, subsequently withdrawn. Before such notice was withdrawn, the defendant gave reply to the said notice disputing the allegations made therein. (14.) ON May 14, 2005, further notice to quit was given by the plaintiffs advocate. By the said letter the earlier notice was withdrawn. Before such notice was withdrawn, the defendant gave reply to the said notice disputing the allegations made therein. (14.) ON May 14, 2005, further notice to quit was given by the plaintiffs advocate. By the said letter the earlier notice was withdrawn. The plaintiffs advocate therein contended as follows: - (i) Inclusion of municipal rates and taxes as well as electricity charges provided in the letter dated April 8, 2003 was related to a period from October, 1969 to March 31, 1970. Hence, the defendant was obliged to pay electricity charges. Since there had been huge increase in electricity charges and consumption of electricity had increased to a substantial extent, the defendant would be obliged to pay the same. Identical contention was raised with regard to the municipal taxes and ultimately a sum of Rs. 36,01,512. 79p was claimed on account of outstanding electricity charges and a sum of Rs. 48,20,060. 60p on account of municipal taxes. The plaintiff demanded a sum of Rs. 84,21,573. 39p in aggregate and threatened disconnection of electricity in case of non-payment. (ii) In the next part of the letter it was alleged that a portion of the premises in question having 2000 sq. ft. approximately, was wrongfully and illegally let out to Calcutta Port Trust and 5000 sq. ft. to Steel Authority of India Limited. The rental income from those two sub-tenants was also demanded. (iii) Lastly, the plaintiff terminated the tenancy and requested them to hand over vacant possession. A claim on account of mesne profit @ Rs. 50. 00 per sq. ft. per month was also made. The defendant duly replied to the said letter through their advocate, disputing the allegations made in the notice to quit. (15.) A suit was consequently filed by the plaintiff on 29th August, 2005, being c. S. No. 216 of 2005. The defendant entered upon reference in the suit. (16.) THEREAFTER, the Chapter XIIIA application was made on 20th December, 2005 by the plaintiff before the Honble First Court, inter-alia, praying for summary judgement for recovery of vacant and khas possession of the entire tenanted portion. The defendant entered upon reference in the suit. (16.) THEREAFTER, the Chapter XIIIA application was made on 20th December, 2005 by the plaintiff before the Honble First Court, inter-alia, praying for summary judgement for recovery of vacant and khas possession of the entire tenanted portion. (17.) AFTER going through the contentions of the parties, the Honble First Court, inter-alia, held as follows: - "under Chapter XIIIA Rule 1b in a suit for recovery of possession the application was maintainable for a summary judgement, in case the term of the tenancy had expired or had been duly determined by notice to quit. Hence applying the said rule the present application, in my view, was maintainable. However, under Rule 5 the defendant was given liberty to show cause as to why the summary judgement should not be passed. Under Rule 6 the judge may pass a summary judgement unless the defendant satisfies the judge that he has a good defence to the claim on its merits or discloses such facts as may be deemed sufficient to entitle him to defend the suit. Under Rule 9 the judge may grant leave to defend unconditionally or subject to such terms as to giving security, or time, or mode or trial or otherwise as the judge may think fit and proper. (18.) ON a combined reading of these rules it appears to me that in case the judge is satisfied that the suit should stand to trial to adjudicate the issue raised by the parties including the defendant in its affidavit the judge should not pass any summary judgement and give leave to defend the said suit. In the instant case the tenant was not entitled to any protection under the present tenancy law inasmuch as the monthly rent was admittedly more than Rs. 10,000. 00p. The earlier suits were filed at a stage when the new law was not enacted and as such the plaintiff contended that the subject disputes were covered by the Tenancy Law of 1956. However, once the new law was enacted the plaintiff was entitled to give notice to quit under the Transfer of Property Act terminating the tenancy. Hence, the present suit and the application, in my view, were maintainable and the submissions to the contrary made on behalf of the tenant-defendant on that score are rejected. However, once the new law was enacted the plaintiff was entitled to give notice to quit under the Transfer of Property Act terminating the tenancy. Hence, the present suit and the application, in my view, were maintainable and the submissions to the contrary made on behalf of the tenant-defendant on that score are rejected. (19.) LET me now examine as to whether the defendant is entitled to defend the suit. (20.) ON perusal of the notice to quit it appears to me that it was not a notice of termination of the tenancy simplicitor. The plaintiff assigned reasons for termination. The tenant disputed such allegations. The issue, in my view, is to be adjudicated upon. To decide the issue the letter of tenancy being dated April 8, 1970 needs appropriate construction. In first paragraph of the notice the rent was fixed for the period October, 1969 to March, 1970. It is, however, true that such rent was inclusive of municipal tax, electricity charges and for six months a total sum of Rs. 96,049. 98p was payable. The said letter did not clearly disclose at what rate the tenant was to pay to the landlord after march, 1970. However, it was recorded that all future rents would be paid by 5th day of each month. It was also recorded that in future if the tenant was required to pay electricity charges he would be entitled to have deduction of the said sum from the rent. Taking these two conditions as a whole it prima facie appears to me that the parties understood that the rent would be paid at the said rate although there was no clear stipulation in the said letter. If such construction is correct then the rent would be inclusive of the municipal tax and the electricity charges. This was a tenancy in respect of the residuary period as under the head lease the property would go back to the original owner on expiry of the said lease. Even then there had been neither any stipulation for escalation of rent nor any provision for payment of electricity charges. However it was made clear that in case there was any escalation in the meantime in case of municipal tax the escalated difference would be paid by the tenant. (21.) THE premises was let out in 1970. Even then there had been neither any stipulation for escalation of rent nor any provision for payment of electricity charges. However it was made clear that in case there was any escalation in the meantime in case of municipal tax the escalated difference would be paid by the tenant. (21.) THE premises was let out in 1970. The rate of rent which is now being paid by the defendant is too low compared to the area and the location of the tenanted premises. The electricity charges and municipal taxes have increased to a substantial extent. Hence it would be an unfair and grave injustice if the defendant is allowed to enjoy the tenanted premises upon payment of the said sum of Rs. 16,000/- per month and that too inclusive of electricity charges and municipal taxes. However, these are question to be gone into at the time of final trial. Sitting in interlocutory court deciding on an application for summary judgement it would not be wise for me to finally decide respective rights of the parties. I am only to see whether there is any triable issue. As observed by me earlier, in the peculiar facts and circumstances the suit should go to trial. (22.) HENCE, in my view, the defendant is entitled to leave to defend the suit. Next question comes as to whether such leave should be conditional or not. (23.) AS observed by me earlier, the defendant was enjoying the premises at a rent far too low compared to the present market value. There are ambiguities in the letter of creation of tenancy which should be gone into and decided after the regular trial when parties would be at liberty to disclose further evidence both oral and documentary to help the court to come to a definite conclusion on the construction of the letter creating the tenancy. Mr. Mitra in this regard, however contended that I need not go into that question at this stage as he was not pressing his claim for mesne profit which should stand to trial. In my view, this issue is very much inter related and inter connected. The prayer for recovery of possession cannot be decided by segregating such prayer from the other. At the same time, if unconditional leave is granted to the defendant it would cause immense prejudice to the plaintiff. In my view, this issue is very much inter related and inter connected. The prayer for recovery of possession cannot be decided by segregating such prayer from the other. At the same time, if unconditional leave is granted to the defendant it would cause immense prejudice to the plaintiff. (24.) I grant liberty to the defendant to defend the suit by filing written statement. Such written statement be filed within a period of four weeks from date. Cross of discovery within four weeks thereafter. Inspection forthwith. Parties are given liberty to mention for early hearing to the suit after completion of pleadings before the appropriate bench. (25.) THE defendant was enjoying the rent collected from two other sub-tenants being Kolkata Port Trust and Steel Authority of india Limited. (26.) THE defendant would pay the actual rent collected by them month by month from Kolkata Port Trust and Steel Authority of india Limited to the plaintiff. The plaintiff will appropriate the same in protanto satisfaction of their claim subject to the result of the suit. (27.) THE defendant would also pay month by month rent @rs. 5. 00 per sq. ft. for the remaining area under occupation of the defendant. (28.) THE defendant would also pay the proportionate municipal tax as well as electricity charge to the plaintiff. The plaintiff would however be obliged to raise appropriate bill therefor with supporting documents of proof of payment to the municipal authority as well as electricity authority. (29.) THE payments to be made by the defendant and received by the plaintiff would be without prejudice to the rights and contentions of the parties in the suit. (30.) IN case any of the tenants being Kolkata Port Trust or Steel authority of India Limited vacates the portion under their occupation or any part thereof the defendant would hand over such portion to the plaintiff immediately and the plaintiff would be entitled to enjoy the said portion subject to the result of the suit. They would, however, be not entitled to let out or transfer or alienate such portion to any outsider without express leave being obtained from this Court upon notice to the defendant. (31.) IN default of payment of monthly rent for two months at the rate so stipulated hereinbefore or the municipal taxes or the electricity charges there would be decree in terms of prayer (a) of the master summons. (31.) IN default of payment of monthly rent for two months at the rate so stipulated hereinbefore or the municipal taxes or the electricity charges there would be decree in terms of prayer (a) of the master summons. In such case the suit would only be heard on the issue of mesne profit. " (32.) AT this stage we feel it necessary to look into the relevant Rules of the original Side Rules of our High Court. Chapter XIIIA: rule 1 (B) " (B) for the recovery of immovable property with or without a claim for rent or mesne profits by a landlord against a tenant whose term has expired or has been duly determined by notice to quit or has become liable to forfeiture for non-payment of rent or against persons claiming under such tenant. " Rule 5 (a), 5 (b) and 5 (c): "5. (a) Defendant may show cause. The defendant may show cause against such application by affidavit. (b) Affidavit. The affidavit shall state whether the defence alleged goes to the whole or to part only and (if so) to what part of the plaintiffs claim and shall deal specifically with all matters of fact. (c) Examination. The Judge may, if he thinks fit, order the defendant or in the case of a Corporation any Officer thereof to attend and be examined upon oath or to produce any lease, deed-book or document or copy of or extract therefrom. " Rule 6: "6. Judgement unless good defence. Upon such application the Judge may, unless the defendant by affidavit or otherwise as the Judge may direct shall satisfy him he has a good defence to the claim on its merits or disclose such facts as may be deemed sufficient to entitle him to defend, make an order refusing leave to defend and forthwith pronounce judgement, in favour of the plaintiff. " rule 9: "9. Leave to defend. Leave to defend may be given unconditionally or subject to such terms as to giving security, or time, or mode or trial or otherwise as the Judge may think fit. " rule 9: "9. Leave to defend. Leave to defend may be given unconditionally or subject to such terms as to giving security, or time, or mode or trial or otherwise as the Judge may think fit. " (33.) A plain reading of the aforementioned Rules makes it abundantly clear that the Honble First Court has been given a wide discretion to decide whether a suit should stand to trial in order to adjudicate the issues raised by the parties or whether it should pass summary judgement, without granting leave to the defendant to defend the said suit. (34.) ON this aspect it may be worthwhile to take note of the fact that the honble First Court had perused the notice to quit served by the plaintiff upon the defendant and observed that it was not a notice of termination of tenancy simplicitor. The plaintiff had assigned reasons for termination. The tenant disputed such allegations. According to the Honble First Court, the issue needed to be adjudicated upon. The Honble First Court has also held that to decide the issue, the letter of tenancy dated 8th April, 1970 needed appropriate construction. After recording the reasons in the order impugned, the Honble first Court opined that the defendant was entitled to leave to defend the suit with certain conditions attached, which appear from the impugned judgement and order dated 26th July, 2006. (35.) THE Supreme Court in the case of Raj Duggal vs-Ramesh Kumar Bansal reported in 1991 Supp (1) SCC 191, inter-alia, held that "leave is declined where the court is of the opinion that the grant of leave would merely enable the defendant to prolong the litigation by raising untenable and frivolous defences. The test is to see whether the defence raises a real issue and not a sham one, in the sense that if the facts alleged by the defendant are established there would be a good or even a plausible defence on those facts. If the court is satisfied about that leave must be given. The test is to see whether the defence raises a real issue and not a sham one, in the sense that if the facts alleged by the defendant are established there would be a good or even a plausible defence on those facts. If the court is satisfied about that leave must be given. If there is a triable issue in the sense that there is a fair dispute to be tried as to the meaning of a document on which the claim is based or uncertainty as to the amount actually due or where the alleged facts are of such a nature as to entitle the defendant to interrogate the plaintiff or to cross-examine his witnesses leave should not be denied. Where also, the defendant shows that even on a fair probability he was a bona fide defence, he ought to have leave. Summary judgements under Order 37 should not be granted where serious conflict as to matter of fact or where any difficulty on issues as to law arises. The court should not reject the defence of the defendant merely because of its inherent implausibility or its inconsistency. " (36.) AS discussed hereinbefore, the facts of the case, as presented before the honble First Court by the parties, gave enough prima-facie evidence to the honble Judge that a triable issue had indeed been made in the instant case, for which the defendant was granted leave to defend with certain conditions, which in our opinion need not be interfered with. In this regard, an observation of j. R. Mudholkar, J. in the Honble Supreme Courts judgement in Milkhiram (India) Private Ltd. and Ors. vs- Chamanlal Bros. , reported in AIR 1965 Supreme court 1698, may be reflected upon. His Lordship observed that the observations made in the case of Jacobs ?vs-Booths Distillery Co. reported in (1901) 85 LT 262 and the observations made by Chagla CJ. In (1958) 60 Bom LR 1373, may well be borne in mind by the Court sitting in appeal upon the order of the trial judge granting conditional leave to defend. His Lordship observed that the observations made in the case of Jacobs ?vs-Booths Distillery Co. reported in (1901) 85 LT 262 and the observations made by Chagla CJ. In (1958) 60 Bom LR 1373, may well be borne in mind by the Court sitting in appeal upon the order of the trial judge granting conditional leave to defend. It is indeed not easy to say in many cases whether the defence is a genuine one or not and, therefore, it should be left to the discretion of the trial Judge who has experience of such matters both at the Bar and the Bench to form his own tentative conclusion about the quality or nature of the defence and determine the conditions upon which leave to defend may be granted. If the Judge is of the opinion that the case raises a triable issue, then leave should ordinarily be granted unconditionally. On the other hand, if he is of opinion that the defence raised is frivolous or false or sham, he should refuse leave to defend altogether. (37.) THE above observation of Mudholkar, J. is an ample statement about the wide discretion of the trial Judge in matters such as this. (38.) IN the circumstances, we, therefore, see no reason to interfere with the impugned judgement and order dated 26th July, 2006. We, however, dispose of the application and appeal by requesting the Honble First Court to hear-out and dispose of the suit as expeditiously as possible.