Judgment :- (1.) It is an admitted position that since in spite of service of writ of summons the defendant failed to file its written statement within time, the suit was heard as an undefended suit. However, the defendant by making its application had sought for permission of the Court to file its written statement but no such permission was granted first by the trial Court and then by the appeal Court and eventually by the Supreme Court by their respective orders and the final order of such rejection of the Supreme Court was made on 23rd November, 2007. (2.) The suit thereafter appeared for hearing before me and I allowed the plaintiff to lead and adduce its evidence for the purpose of proving its case could have disposed of the suit by passing the decree under the provisions of the Code of Civil Procedure as the suit, as aforesaid, remained undefended . and the plaintiff as such was entitled to obtain the relief it claimed in the suit. (3.) However, when the plaintiff was adducing evidence in Court, the defendant or rather its learned senior counsel had sought for leave to cross-examine the plaintiffs witness or witnesses though the defendant was not in a position to defend the suit in absence of its written statement as the defendant, as aforesaid, was not permitted to defend by its written statement. (4.) However, having considered the prayer of learned senior counsel made on behalf of the defendant, keeping in view the decision of the Supreme Court in Modulo. India v. Kamakshya Singh Deo, reported in AIR 1989 SC 162 , the defendants learned counsel to cross-examine the plaintiffs witness or witnesses and make submission on behalf of the defendant on the basis of the plaintiffs case. (5.) On or about 11th January 2001, the plaintiff had instituted the suit primarily claiming a decree for Rs.38,47,824/- on account of rent for the months of April 2000 to December 2000 with interest, declaration to the effect that the defendant is liable to pay rent at Rs.6/- per square foot per month from April 2000 onward for a period of ten years and for a direction upon the defendant to make payments of rents for the godowns as tenant of the plaintiff. The other claims made in the plaint including a decree for mandatory injunction against the defendant need not be set out in detail. (6.) The case of the plaintiff as stated in the plaint proceeds on the basis that the defendant is the tenant of two warehouses (described as godowns in the plaint) which are situate at Rampur Budge Budge Trunk Road and the descriptions of such warehouses are provided in a schedule annexed to the plaint. One of the two warehouses has an area of 63756 square feet and the other warehouse has an area of 7500 square feet. Initially, rent for the said warehouses was fixed at Rs. 0.25 paisa per square foot per month which by mutual arrangement was enhanced to Rs.0.31 paisa per square foot per month sometime "in or around the year 1976". (7.) On 16th February, 1991 both the plaintiff and the defendant held a meeting and they, inter alia, agreed to revise the rate of rent of the said warehouse and on that basis the rate was enhanced to Rs.0.39 paisa per square foot with effect from 1st April, 1990. They also, inter alia, agreed that revision of rent would be reviewed every ten years prospectively. (8.) On the basis of such agreement for revision of rent the plaintiff approached the defendant by its letter dated May 8, 2000 with a proposal to revise the rent as agreed by them. The defendant in its turn, however, without denying such agreement refused to review or revise the rent at that stage on the plea that since the defendant had to file a suit against the plaintiff for digging the wall of the tenanted portion of the warehouse of the defendant which caused immense difficulties to the defendant and since the said suit was "sub-judice" the question of revision of rent at that stage did not arise. The above stand of the defendant was taken by its letter dated 15 May 2000 to the plaintiff. (9.) The plaintiff in its turn sold the defendant that the defendant was avoiding its liability to the increased rent as agreed between the plaintiff and the defendant on the plea of pendency of the suit which was in no way connected with the revision of rent in respect of the warehouses in question. (9.) The plaintiff in its turn sold the defendant that the defendant was avoiding its liability to the increased rent as agreed between the plaintiff and the defendant on the plea of pendency of the suit which was in no way connected with the revision of rent in respect of the warehouses in question. The plaintiff, therefore, again called upon the defendant "to pay the increased rent with effect from 1st April, 2000" as tenant of the said warehouses. The above stand of the plaintiff is evident from its letter dated 1 June 2000 to the defendant. (10.) Even after the above letter the plaintiff also "verbally requested" the defendant for holding a joint meeting for the purpose of revising the rent as agreed by them but the defendant refused to hold such meeting on the plea that until and unless the suit instituted by the defendant against the plaintiff was disposed of, no meeting for revision of rent could be held. (11.) Since the defendant was not willing to hold a meeting "for review and revision of rent as agreed" the plaintiff tried to ascertain the rate of rent in the market of the warehouses in general as prevailing in the area where the warehouses in question are situate and after such ascertainment of rate of rent in the market for the similar warehouses in the locality the plaintiff assessed the rate of rent of the warehouses at Rs.6/- per square foot per month which according to the plaintiff was payable by the defendant with effect from 1stApril, 2000 on the basis of the said agreement for revision of rent. (12.) On the above basis the plaintiff again wrote to the defendant on 14 August 2000 that the defendant was liable to pay rent at Rs.6/-per square foot as that was the rate of rent in the market in and around the area where the warehouses are located. In the said letter, it appears, the plaintiff also alleged that the defendant had wrongfully and illegally instituted the suit in the District Court and reminded the defendant that the pendency of the said suit did not entitle the defendant "not to increase the rent". In the said letter, it appears, the plaintiff also alleged that the defendant had wrongfully and illegally instituted the suit in the District Court and reminded the defendant that the pendency of the said suit did not entitle the defendant "not to increase the rent". (13.) The defendant, however, had in the mean time tendered rent for the months of April, May and June 2000 at the old rate of Rs.0.39 paisa per square foot per month but the plaintiff did not accept such rents from the defendant and returned the cheque of the defendant accordingly. The defendant, however, did not tender any rent thereafter. (14.) Since the defendant had failed and neglected to revise the rent of the warehouses in question from 1st April, 2000 the plaintiff had to institute the suit claiming the aforesaid relief against the defendant. (15.) After institution of the suit on the application of the plaintiff a learned advocate was appointed as Commissioner by this Court to submit a report on the market rent for the two warehouses of which the defendant was and is the tenant from 1st April, 2000 and the market rent of the said two warehouses was to be ascertained from 1st April, 2000. The Commissioner appointed by the Court, Sudhir Kumar Mukherjee, gave his evidence on 16th January, 2008 and again on 22nd January, 2008 in support of his report. which was tendered by him and is marked as Exhibit-L. Apart from the Commissioner one of the Directors of the plaintiff, Chandra Kanta Khemka also gave his evidence in support of the plaintiffs claims in the suit. (16.) I have had the occasion to hear the evidence of the Commissioner in Court in support of his report and I found him to be very consistent in his evidence before me. He stated in somewhat detail as to the mode that he had adopted to ascertain the rate of rent in the market of the two warehouses in question. He has also explained in detail in his report the procedure he adopted in preparing his report. (17.) On a plain reading of the report of the Commissioner it is clear that the Commissioner invited the defendant repeatedly to assist him so that he could effectively carry out the order of this Court in preparing his report as he was directed to do by this Court. (17.) On a plain reading of the report of the Commissioner it is clear that the Commissioner invited the defendant repeatedly to assist him so that he could effectively carry out the order of this Court in preparing his report as he was directed to do by this Court. The defendant, however, did not cooperate with the Commissioner at all at any stage of the proceedings as the defendant was, in my opinion, under an obligation to do to enable the Commissioner to investigate and submit the report in terms of the order of this Court. (18.) The Commissioner having tried his best and having failed in his attempt to make the defendant participate in the Commissioners proceedings for the purpose of preparation of his report had made all reasonable inquiries in and around the area in question, namely the area where the two warehouses are located and by adopting all legal means for the purpose of ascertaining the rate of rent in the market of the similar warehouses finally prepared his report. (19.) The defendant not only did not cooperate with Commissioner to enable the Commissioner to prepare his report as the defendant was obliged to do, the defendant also did not file the written statement to contest the suit and eventually lost its right to file the written statement because of its conduct and not for any other reason. (20.) After considering the evidence of the Commissioner and his report in detail I have no manner of doubt in my mind that the defendant had and has through out proceeded with only one object and that was to stop the revision of rent of the warehouse in question of which the defendant has been and is the tenant of the plaintiff. The Defendant, in my opinion, by its wrongful conduct had and has been in complete breach of the agreement in question, namely dated 19th February, 1991. (21.) However, since I had allowed the defendants witness to cross-examine the plaintiffs witness and also the Commissioner, I have considered the evidence given by the witnesses in their respective cross-examination very carefully. The Defendant, in my opinion, by its wrongful conduct had and has been in complete breach of the agreement in question, namely dated 19th February, 1991. (21.) However, since I had allowed the defendants witness to cross-examine the plaintiffs witness and also the Commissioner, I have considered the evidence given by the witnesses in their respective cross-examination very carefully. (22.) For the sake of convenience a few paragraphs from the Commissioners report before his conclusion are set out below: "I submit that the defendant has not supplied any document nor denied the contentions of the plaintiffs advocate except referring to the Title Suit No. 387 of 1999 pending before the 6th Civil Judge (Junior Division) at Alipore. I have personally enquired into the rate of rent payable by some tenants in and around an area of godowns where plaintiff godowns are situated. I have also enquired and verified documents referred to me in respect of the rate of rent payable by some of the tenants of the godowns in the said some locality. On my investigation I find that there is no consistency in respect of the rate of rent payable by the tenants of that area. The rate of rent which is being currently paid by the new tenants varies from Rs. 5/ -sq. ft. to Rs. 6. 59/- per sq. ft. depending upon the size of an area, situation, position and location of the area and condition of the premises. In the premises as desired by this Honble Court I submit my report on the market rate of rent / mesne profit for godowns which are the subject matter of the proceedings commencing from 1 April 2000. I have adopted procedure to determine market rate as follows: A] Spent life B) Market conditions I submit that the market rate of rent/mesne profit for subject godowns suit be variable between Rs.5/- to Rs.6/-per sq. ft. as per the position, situation and location of the godown. Dated : 15.02.2001 Sudhir Kr. Mukherjee, Commissioner 82, Moore Avenue, P.C. - Regent Park, Kolkata - 700 040" (23.) On the above basis, I have no manner of doubt that the plaintiff has been able to prove its case with reasonable degree of certainty by evidence. ft. as per the position, situation and location of the godown. Dated : 15.02.2001 Sudhir Kr. Mukherjee, Commissioner 82, Moore Avenue, P.C. - Regent Park, Kolkata - 700 040" (23.) On the above basis, I have no manner of doubt that the plaintiff has been able to prove its case with reasonable degree of certainty by evidence. (24.) The only defence that the defendant or rather its learned senior counsel had and has tried to take both in making submissions in Court and in the notes of argument filed on behalf of the defendant is that the plaintiff has not been able to prove its case and that the Commissioner, in fact, has based his decision or conclusion on the question of rate of rent in the market in respect of the warehouses in question on inadmissible documents or upon the documents which were not proved in the proceedings. (25.) Having regard to the evidence on record and the facts and circumstances of this case, I have no hesitation to reject the plea taken on behalf of the defendant that the plaintiff has not been able to prove its case or that the report of the Commissioner in particular is based on inadmissible documents. (26.) Having regard to the standard of proof required in a proceedings of this nature, namely a civil suit I am more than certain that the plaintiff has proved its case on the basis of "balance of probabilities" as the plaintiff is required to do in order to obtain relief claimed by the plaintiff in this suit. (27.) Although several decisions were referred to by the plaintiffs and defendants counsel in support of their respective submissions, the view that I have taken in this case I do not think those decisions need particularly be dealt with in this judgment. Furthermore, the case of the plaintiff find, is a foolproof case. (28.) Thus, where will be a decree for Rs.38,47,824/-an claimed in claim [a] of the plaint with, interest at 8 per cent per annum payable from the date of the institution of the suit till the date of decree, i.e. 23rd September, 2009. (29.) There will also be a decree for interest at the rate of 7 per cent per annum on the above decretal amount of Rs.33,47,824/-payable from 24 September 2009 till the decree is satisfied by the defendant. (29.) There will also be a decree for interest at the rate of 7 per cent per annum on the above decretal amount of Rs.33,47,824/-payable from 24 September 2009 till the decree is satisfied by the defendant. (30.) There will be a decree as claimed in claim (L) of the plaint. There will be a decree for mandatory injunction whereby the defendant is directed to pay the rent at the rate of Rs. 6/- per square foot per month of the tenanted premises from the month of April 2000 onwards with interest as above. (31.) The defendant will also pay cost to the plaintiff assessed at Rs. 50,000/-and the plaintiff will be entitled to this cost over and above the Court fees that the plaintiff had to pay for the purpose of institution of the suit. Let the decree be drawn up expeditiously. Suit allowed.