Judgment :- (1.) AT all material times Calcutta Dock Labour board (hereinafter referred to as "cdlb") was a tenant in respect of premises no. 20b, Abdul Hamid Street, Calcutta (formerly known as British Indian street). From time to time six tenancies were created being flat Nos. 1d, 1g and 1i in the first floor, 2a in the 2nd floor, 3a in the 3rd floor and 5a on the 5th floor. Altogether the CDLB was enjoying 25154. 36 sq. ft. area of the premises in question. They were paying rent @ Rs. 1. 23 per sq. ft. inclusive of service charges. The landlord being the respondent abovenamed enhanced the rent to Rs. 8. 52 per sq. ft. and started raising demand therefor. CDLB refused to pay at the enhanced rate. Disputes arose between the parties. The landlord approached the Rent Controller for fixing fair rent. In the meantime the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as the "said Act of 1997") came into force. Under the said Act of 1997 the tenancy attracting monthly rent of Rs. 10,000. 00 and above was kept out of the purview of the tenancy law. In respect of the entire premises the rent was much above Rs. 10,000. 00. The respondent/landlord issued a notice through their Advocate dated April 28, 2006 appearing at page 35-36 of the paper Book determining the tenancy under section 106 of the Transfer of property Act, 1882 and asked the CDLB to quit, vacate and deliver vacant and peaceful possession of the premises in question at the end of the month of May, 2006. CDLB replied to the said notice vide letter dated May 19, 2006 appearing at pages 39-40 of the Paper Book and refused to vacate the premises in question. They contended that the notice was bad and invalid. The respondent filed a civil suit being Civil Suit No. 166 of 2006 on July 12,2006, inter alia, praying for decree for recovery of possession as also for arrear of rent and mesne profit. Soon after the service of writ of summons cdlb entered appearance. Landlord filed an application for summary judgment under Chapter XIIIA of the High Court Rules, Original Side. CDLB filed affidavit-in-opposition and contested the said application. Soon after the service of writ of summons cdlb entered appearance. Landlord filed an application for summary judgment under Chapter XIIIA of the High Court Rules, Original Side. CDLB filed affidavit-in-opposition and contested the said application. The learned single Judge, however, negated their objection and passed a partial decree for eviction in respect of flats1d,1i in the first floor, 2a in the second floor and 5a in the fifth floor. His Lordship, however did not pass any decree in respect of the other two flats being flat Nos. 1g and 3d of the said premises in question. Hence, this appeal by the CDLB. (2.) AT the admission stage we directed CDLB to pay a sum of Rs. 2. 00 lacs per month as and by way of occupation charges for the flats in question. We are told that CDLB is regularly paying the said sum to the respondent/ landlord. The appeal was heard by us on the above mentioned dates. (3.) MR. S. K. Kapoor, learned Senior Counsel appearing for CDLB contended as follows : (i) The notice under section 106 of the Transfer of Property Act was given determining the entire tenancy in respect of the premises in question. Hence, the learned Judge was not right in allowing the respondent to have a partial decree. (ii) Whether the notice under section 106 under the said Act of 1882 could be segregated or not was a question of law and should be finally adjudicated and decided at the final hearing of the suit. (iii) Since CDLB the appellant abovenamed could raise-a legal issue they were entitled to unconditional leave to defend the said suit and summery judgment should not have been passed by the learned Single Judge. (4.) IN support of his contention Mr. Kapoor cited the following decisions : (i) All India Reporter, 1968, Calcutta, page 532 (Parekh Borthers vs. Kartick Chandra Saha and Ors.) (ii) 1985, Volume-I, Supreme Court Cases, page 14 (Chimanlal vs. Mishrilal) (iii) 1994, Volume IV, Supreme Court Cases, page 89 (Chase Bright Steel limited vs. Shantaram Shankar Sawant and Anr.) (iv) 1994, Volume-V, Supreme Court Cases, page 261 (N. M. Engineer and ors. vs. Narendra Singh Virdi and Anr.) (v) 1998, Volume-V, Supreme Court Cases, page 354 (Sunil Enterprises and Anr. vs. Narendra Singh Virdi and Anr.) (v) 1998, Volume-V, Supreme Court Cases, page 354 (Sunil Enterprises and Anr. vs. SBI Commercial and International Bank Ltd.) (vi) 2001, Volume-I, Supreme Court Cases, page 706 (Inderjeet Kaur vs. Nirpal Singh)Calcutta Dock Labour Board vs. EIC Holdings Ltd. (A. K. Banerjee, JJ.) (DB) 311 (5.) MR. Samit Talukder, learned Counsel appearing for the respondent/ plaintiff being the landlord of the premises in question while opposing the appeal contended as follows : (i) Once the rent was above Rs. 10,000. 00 the protection of the tenant under the Act of 1997 was not available. (ii) Under section 106 of the said Act of 1882 no reason was required to be given for determination of the tenancy. (iii). Once the plaintiff filed a suit by joining several causes of action together they were entitled to elect a part of them to proceed in the suit and leave the other part. (iv) Assuming the notice was bad because of incorporation of flat No. 1g and 1d such mistake could not be fatal and the Court was within its right to allow the plaintiff to proceed with the suit leaving those two flats for which such notice was not maintainable. (6.) IN support of his contention Mr. Talukdar relied on the following decisions : (i) All India Reporter 1939, Calcutta, page 291 (Giridhari Lal Mundra vs. Kumar Purnendu Narayan Roy Deb Barma) (ii) Indian Law Reporter, Volume-XL VI, Calcutta, page 458 (Harihar banerjee vs. Ramshashi Roy) (iii) All India Reporter, 1953, Calcutta, page 585 (A. Cacacie vs. Saidar alt) (iv) All India Reporter, 1977, Supreme Court, page 1120 (Bhagabandas agarwala vs. Bhagawandas Kanu and Ors.) (v) Volume-83, Calcutta Weekly Notes, page 601 (Md. Nissar vs. Md. Anis and Ors.) (vi) Volume-88, Calcutta Law Journal, page 118 (Jatindra Nath Shee vs. Malai Ram Shaw) (vii) 1995, All India High Court Cases, page 3210 (S. Venkataswamy vs. S. Rajaram) (viii) Volume-2, Calcutta Weekly Notes, page 106 (Shama Charan Mitter and Ors. vs. Uma Charan Haider) (ix) 2006, Volume-II, Calcutta High Court Notes, page 277 (Prasanta Ghosh and Anr. vs. Pushkar Kumar Ash and Ors.) (7.) ON perusal of the judgment and order impugned and on appreciation of the rival contentions of the parties the moot question that emerges, is whether the landlord was entitled to issue a composite notice in respect of tenancy created separately. vs. Pushkar Kumar Ash and Ors.) (7.) ON perusal of the judgment and order impugned and on appreciation of the rival contentions of the parties the moot question that emerges, is whether the landlord was entitled to issue a composite notice in respect of tenancy created separately. If the answer is in the negative, could the notice under section 106 be held to be valid? (8.) THE above question is a question of law. The defence raised by the appellant on this legal issue in our view cannot be termed sham or moonshine for which the appellant should suffer a decree for summary judgment without getting an opportunity to defend the suit. 312 Calcutta Dock Labour Board vs. E1c Holdings Ltd. 2008 (4) CHN (9.) MR. Talukdar relied upon a series of cases on the issue of mistake in the notice. In case of Harihar Banerjee vs. Ramsashi Roy (supra) inaccuracy in notice was held to be not fatal. This judgment was followed subsequently by the Apex Court as well as by this Court including the cases cited by Mr. Talukdar in the case of Giridhary (supra), Mrs. A. Cacacie (supra), bhagabandas (supra), Md. Nissar (supra), Jatindra Nath (supra) and Shama charan (supra). On the other hand Mr. Kapoor relied on the case of Chimanlal vs. Mishrilal (supra) and Parekh Brothers vs. Kartick Chandra Saha (supra). In these two decisions eviction decree was refused in view of the mistake in the document. Mistake in the notice was held to be vital in the case of chimanlal (supra). The Apex Court in the case of Chimanlal (supra) observed, the notice of demand is an act independent of institution of the suit. By subsequent amendment of plaint mistake of notice could not be cured. (10) ON a close scrutiny of these two lines of decisions we find that there was no difference between these two opinions as both of them had a strong logic. By mixing up all these two opinions we find a single proposition of law. If there is any mistake in the notice and such mistake is through inadvertence and does not touch the very root of the matter such mistake cannot be held to be fatal. On the other hand if such mistake and/or omission is deliberate and if such omission or mistake hits the root of the suit such mistake and/or omission is fatal. On the other hand if such mistake and/or omission is deliberate and if such omission or mistake hits the root of the suit such mistake and/or omission is fatal. (11.) THIS legal aspect was discussed by His Lordship in three paragraphs of the judgment appearing at pages 185-86 of the Paper Book which are quoted below: "the defendant responded by its letter of May 19, 2006, disputing the validity of the notice and questioning the ground given for determining the tenancy. The defendant reminded the plaintiff of proceedings pending before the rent Controller for enhancement of rent, expressed its indifference to the plaintffs assertion as to the defendants legal status and declined to make over possession as demanded. It appears that the plaintiff institllfed four sets of proceedings before the Rent Controller in respect of the four several tenancies at the said building granted in favour of the defendant, for enhancement of rent. The rents that the other three tenancies yield would entitle the defendant protection under the West Bengal Premises Tenancy act, 1997 and would not be covered, by value, by the exemption recognised in section 3 (f) (i) thereof. The plaintiff has accepted such position and confines its claim in the suit and this application only to the extent of the tenancy covered by the deed of July 19, 1968. The plaintiff clarifies that it does not press its claim in respect of the other tenancies and says it will proceed before the Rent Controller for enhancement of rent in respect thereof and take other steps that it may be entitled to in law. It is on such count that the defendant principally attacks the claim made in the suit and the notice on which it is based. The defendant has urged three grounds to not only resist the claim, but to also suggest that triable issues arise that would entitle the defendant to carry the defence to a protected trial and not require it to succumb to a decree in summary proceedings on affidavit evidence. The first ground taken in defence is that section 106 of the said Act has no manner of application and in the plaintiffs invocation thereof and the notice thereunder, the suit is flawed. As a corollary, the defendant suggests that section lll (g) of the said Act would govern the matter. The first ground taken in defence is that section 106 of the said Act has no manner of application and in the plaintiffs invocation thereof and the notice thereunder, the suit is flawed. As a corollary, the defendant suggests that section lll (g) of the said Act would govern the matter. The substance of the first count of defence is that clause IV (c) of the deed specified the instances which would amount to default on the defendants part and would entitle the plaintiff to forfeiture. Since none of the conditions set down in that clause, argues the defendant, had been met, the plaintiff cannot seek to determine the tenancy. The second ground urged by the defendant is that the notice of April 28, 2006 is otherwise bad as it does not disclose any categorical intention to determine the relevant tenancy. The defendant insists that in seeking to determine all the several tenancies is the same breath, the plaintiff had referred to an imaginary tenancy and however lenient, the Court may be with the notice under section 106 of the said Act, it would not permit a landlord to proceed under a notice which fails to appropriately describe tenancy. " (12.) WE fully agree with Mr. Talukdar when he says that no reason was required to be disclosed in a notice under section 106. In our view, Mr. Talukdar rightly says that once the tenancy is terminated under section 106 and such notice is proved the decree for eviction is an obvious consequence. We, however, wish to view the present case from a different angle. (13.) THE notice was duly served as would appear from the reply to the same Question thus remains, was it a valid notice? Several tenancies were created at different times. Four tenancies are covered under a Deed of lease. Hence, those four tenancies could be clubbed together and a composite notice could be given therefor. The respondent/plaintiff, however, to bring other two tenancies attracting a lesser rent wanted to club those to deny the tenant protection under the tenancy law. Whether such action was deliberate or not or whether such mistake could be termed as a mere mistake to have-benefit of Harihar Banerjee (supra) is a question which needs proper adjudication. To have proper adjudication one must give both sides ample opportunity to place their version. Here we join issue with His Lordship. Whether such action was deliberate or not or whether such mistake could be termed as a mere mistake to have-benefit of Harihar Banerjee (supra) is a question which needs proper adjudication. To have proper adjudication one must give both sides ample opportunity to place their version. Here we join issue with His Lordship. (14.) WE, however, make it clear that this is our prima facie view. We feel that this question of law cannot be termed as sham and moonshine defence. We feel that the appellant was entitled to defend the suit. To strike a balance we have already put the appellant on terms. Let them continue to pay at the rate fixed by us at the time of admission of the appeal. (15.) THE judgment and decree dated March 4, 2008 is set aside. The appellant/defendant would file written statement positively within three weeks from date. Cross-order for discovery within three weeks thereafter. Inspection forthwith. Let the suit appear before the appropriate regular bench for hearing after completion of the pleadings. (16.) IN the meantime the appellant/defendant would go on making payment of Rs. 2,00,000. 00 per month in respect of the subject tenancy covered under the judgment and decree impugned herein. (17.) WE once again make it clear that our observation made in this judgment and order is only to decide the appeal brought before us. Such observation must not influence the learned Judge who would finally hear and dispose of the suit. (18.) THE appeal is disposed of accordingly without any order as to costs. Appeal disposed of.