Judgment :- I.P. MUKERJI, J. The defendant is a bank. They are in occupation of the ground and first floors of a building numbered as 79, Vivekananda Road, Kolkata – 6. They have been occupying the said property as a monthly tenant, under the plaintiff from October, 1992. They were last paying rent @ Rs.1,76,639/- per month. They paid this rent till January, 2011 in February, 2011. As the rent is much above Rs.10,000/- per month, this tenancy, without any dispute is outside the purview of the West Bengal Premises Tenancy Act, 1997. The plaintiff treated the occupation of the defendant as a month to month lease tenancy. By their notice dated 23rd September, 2010 which is Annexure ‘E’ at page 16 of the application, they terminated this lease and asked the defendant to quit and vacate the property by delivering vacant and peaceful possession to them by 31st October, 2010. But the plaintiff introduced a bit of complication into this termination by writing the letter dated 3rd November, 2010. They wrote to the defendant saying that the lease or tenancy stood terminated on and from 1st November, 2010. Since the defendant had not delivered possession they asked them to pay rent at the rate last paid and that they would be accepting the said rent “under protest”. It was accepted like this till February, 2011. The apprehension of creation of a lease by holding over was very effectively nullified by Mr. Ahin Choudhury, learned Senior Advocate for the plaintiff by citing the case of Sarup Singh Gupta vs. Jagdish Singh & Ors. reported in AIR 2006 SC 1734 (paragraph 6 and 8). In this case the Supreme Court has opined that where rent was accepted by the landlord without prejudice after determination of the lease under Section 111 (h) of the Transfer of Property Act, 1882, there was no waiver of the notice to quit under Section 113 of the Act. Applying the same principles in this case, by the plaintiff accepting rent without prejudice, after termination of the defendant’s monthly tenancy, there was no creation of a lease by holding over under Section 116 of the Transfer of Property Act, 1882. Two points of defence taken on behalf of the defendant by Mr. Das, learned Advocate have now to be dealt with. Two points of defence taken on behalf of the defendant by Mr. Das, learned Advocate have now to be dealt with. The writ of summons in the suit was served upon the defendant on 16th December, 2011.They entered appearance on 13th January, 2012. In the writ of summons the last date for filing the written statement was 20th January, 2012. On or about 19th January, 2012, the defendant applied before the learned Master for an extension of time to file their written statement. The application before the learned Master was posted for consideration on 25th January, 2012. Nothing happened on that day. On 31st January, 2012, the learned Master passed an order extending the time, for the defendant, to file their written statement by 28th February, 2012. On 22nd February, 2012 this application was filed, under Chapter XIII-A of the Original Side Rules claiming a final judgment and decree for eviction of the defendant from the above property. In obedience to the order of the learned Master the written statement was filed by the defendant on 25th February, 2012. The point of objection taken by the defendant is this. They, by filing the written statement, for the purposes of the proviso to Rule 3 thereof, had become a “defendant who has filed a written statement”. Therefore, the plaintiff under the said rule had to file this Chapter XIII-A Application within 10 days of receipt of notice of the entering of appearance by the defendant. Since the appearance had been entered on 13the January, 2012 this application ought to have been filed by 24th January, 2012. Since it was not so filed and filed only on 22nd February, 2012, no Chapter XIII-A application lay and the plaintiff should be relegated to the ordinary course of trial. Chapter XIII-A rule 3 is inserted below: “3. Since the appearance had been entered on 13the January, 2012 this application ought to have been filed by 24th January, 2012. Since it was not so filed and filed only on 22nd February, 2012, no Chapter XIII-A application lay and the plaintiff should be relegated to the ordinary course of trial. Chapter XIII-A rule 3 is inserted below: “3. When application to be made.- Where the defendant in any suit which is within the terms of Rule 1 has entered appearance the plaintiff may, as regards any claim which is within the terms of Rule 1, on affidavit made by himself or by any other person who can swear positively to the facts verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no defence to the claim, apply to the Judge for final judgment for the amount claimed together with interest, if any, of for the recovery of the land (with or without rent or mesne profits) as the case may be and costs: Provided that as against any defendant whop has filed a written statement such application shall not be permissible unless the summons is taken out as in Rule 4 mentioned within ten days after receipt of notice of the entering of appearance under Chapter VIII, rule 18.” The case of Manik Lal Sharma vs. Usha Beltron Limited reported in CAL LT 2004(3) HC 271, happily comes to the rescue of the plaintiff. The defendant’s objection is negatived by paragraph 4.2, 4.3 and 4.4 of this judgment which are as follows: “4.2. In order to appreciate the situation we may scan the expression used in Rule 3. The provision proceeds to prescribe that an application shall not be permissible unless the summons is taken out within 10 days of receipt of notice of entering appearance under Chapter VII Rule 18 against a defendant who has filed a written statement. The qualification is provided against a defendant who has filed a written statement, the application under Chapter XIII-A shall not be permissible unless the summons is taken out within the time limit prescribed. The expression used may be interpreted in both the manner as Mr. Pal has contended as well as Mr. Chatterjee has contended. The qualification is provided against a defendant who has filed a written statement, the application under Chapter XIII-A shall not be permissible unless the summons is taken out within the time limit prescribed. The expression used may be interpreted in both the manner as Mr. Pal has contended as well as Mr. Chatterjee has contended. Such question had cropped up before this Court in an unreported decision by Hon’ble Sengupta, J. sitting singly in GA No. 3116 of 2001, CS No. 187 of 2001 (Calstar Steel Limited v. M/s. Deekay Coconut Oil Industries & Ors.) disposed of on July 11, 2002. In the said decision, it was held that Chapter XIII-A does not provide any time limit for taking out a Master Section Summons where writ of summons has been served irrespective of the defendants entering appearance. But, from Rule 3 proviso, it appears that the 10 days limit would be applicable in a case where the written statement is filed simultaneously with the entering of appearance. Such 10 days limitation will not be applicable where the entering appearance is not simultaneously or immediately followed by the filing of the written statement and Master’s Summons can be taken out in in an appropriate case at any time. In order to apply for 10 days limitation, two conditions are to be fulfilled – (1) there must be a notice of entering appearance in the suit and(2) simultaneously with the entering appearance there must be filing of written statement. Anything short of either of these two things the aforesaid rigidity period of 10 days will not be applicable. 4.3. Mr. Chatterjee has relied on this decision to bring home his contention that an application which was otherwise valid on the date when the Master Section Summons was taken out cannot be rendered invalid by subsequent filing of a written statement unless it is expressly so provided for in the Rule. In the absence of any express provision, according to him, the Court cannot add words into it and make a provision extremely rigid one particularly when the question is one of procedures leading plainly to the technicalities. On the other hand, Mr. Pal has pointed out that the learned single Judge had not given any reason as to why such a conclusion was arrived at. On the other hand, Mr. Pal has pointed out that the learned single Judge had not given any reason as to why such a conclusion was arrived at. At the same time, the conclusion does not seem to be supported by the express provision used in Rule 3. 4.4. After having gone through the provisions contained in Rule 3 of Chapter XIIIA, it appears to us that the principal Rule does not provide for any time limit for applying for final judgment. It permits making of such application when the defendant has entered appearance. The principal Rule has been qualified by the proviso. The proviso has used present perfect, future and present tense while laying down the condition under which such an application cannot be permissible viz., (i) against a defendant who has filed a written statement, (ii) the application shall not be permissible, (iii) unless the summons is taken out within the time limit prescribed. In the manner in which the expression has been engrafted using present perfect tense for the purpose of filing written statement and making an application impermissible preceded by a future tense followed by present tense for taking out the summons presupposes that the impermissibility is applicable when it follows the filing of the written statement. If such application is made after the written statement is filed, in that event, the 10 days limitation for taking out the Master’s Summons would be applicable. But, if the Master’s Summons is taken out before the written statement is filed, in that event, by virtue of filing of written statement the purpose of taking out the Master’s Summons cannot be frustrated simply by filing a written statement. Our view is supported by the use of the verb “is” for taking out of the summons. The use of the present tense is for the taking out of the summons is significant. If the legislature intended the effect, as Mr. Pal contends then it would have used past tense “was” instead of present tense “is” for taking out summons. The question is to be gone into on merits and not on technicalities.” Since it is a Division Bench judgment of our Court I am bound by it and respectfully follow it. If the legislature intended the effect, as Mr. Pal contends then it would have used past tense “was” instead of present tense “is” for taking out summons. The question is to be gone into on merits and not on technicalities.” Since it is a Division Bench judgment of our Court I am bound by it and respectfully follow it. If at the time of entering appearance the defendant had filed their written statement, they could have argued that the Chapter XIII-A application was incompetent as it was not filed within ten days thereof. Since the defendant did not file their written statement together with entering of their appearance, the plaintiff was not obliged to file their Chapter XIII-A Application within 10 days of notice of entering appearance by the defendant, according to the above judgment. Filing of the Chapter XIII-A application before filing of the Written Statement was acceptable. However, with the deepest respect to the judgment of the Division Bench I would like to add that the purpose of this rule in Chapter XIII-A, as I see it, is that an application under this Chapter should be filed as expeditiously as possible. If a defendant has filed a written statement and the suit progressed by discovery of documents, inspection and so on then it is better to have a regular trial. I think it is inequitable to allow a plaintiff to proceed with a suit by compelling the defendant to file a defence, discover documents and so on, evaluate the evidence brought forward by the defendant, and then ask for a summary judgment. The principle is that in an application for summary judgment, the Court either declines leave to defend or grants it. So a XIII-A application is to be brought without delay, upon notice of entering of appearance by the defendant, within ten days thereof as Rule 3 prescribes or according to the above decision of the division bench, before expiry of the time to file the written statement. The wording of the proviso is undoubtedly ambiguous. But as far as this application is concerned it was filed three days prior to the filing of the written statement by the defendant as aforesaid and comes squarely within the principles laid down in the case of Manik Lal Sharma vs. Usha Beltron Limited reported in CAL LT 2004(3) HC 271(Supra). The wording of the proviso is undoubtedly ambiguous. But as far as this application is concerned it was filed three days prior to the filing of the written statement by the defendant as aforesaid and comes squarely within the principles laid down in the case of Manik Lal Sharma vs. Usha Beltron Limited reported in CAL LT 2004(3) HC 271(Supra). The other objection raised on behalf of the defendant, by Mr. Das, learned Advocate was that the Chapter XIII-A application was incompetent. He relied on the nature of cases specified in Rule 1 of the Chapter in which a Chapter XIIIA application can be brought. He relies on Rule 1B which is in the following terms: “1. Nature of cases in which applicable.-The provisions of this Chapter shall not be applicable save to suits.— (A)…………………………………………. (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 nonpayment of rent or against persons claiming under such tenant.” He argued that since the word “term” has been used it excluded monthly lease or tenancy from month to month. He cited the case of Utility Articles Manufacturing Co. vs. Raja Bahadur Motilal Bombay Mills Ltd. reported in AIR 1943 Bombay 306 and Birendra Pratap Singh and another vs. Gulwant Singh and others reported in AIR 1968 SC 1068 at page 1072. I do not think that the principles of law laid down in these decisions aid his arguments. In fact they are to the contrary. A month to month lease or tenancy, in my opinion, is a lease or tenancy of at least one month, subject to termination or renewal. A lease is undoubtedly a monthly lease when it is terminable on the part of the lessor or lessee by 15 days’ notice, under Section 106 of the Transfer of Property Act, 1882. Take a monthly lease say from 1st May, 2012. If a notice of termination is issued on 16th May, 2012 giving the lessee 15 days’ notice of termination then the lease terminates on 31st May and it would be a lease for one month. If such a notice is not given the lease will spill over to the next month and to the next and so on. If a notice of termination is issued on 16th May, 2012 giving the lessee 15 days’ notice of termination then the lease terminates on 31st May and it would be a lease for one month. If such a notice is not given the lease will spill over to the next month and to the next and so on. These were observed to some extent in the case of Utility Articles Manufacturing Co. vs. Raja Bahadur Motilal Bombay Mills Ltd. reported in AIR 1943 Bombay 306. Therefore, there is no reason to hold that the expression “term” does not cover a monthly tenancy or lease. In fact, our Court has frequently decreed Chapter XIII-A applications where the cause of action was termination of monthly tenancies/leases. In my opinion, the defendant has no defence to the claim of the plaintiff in the suit. Leave to defend is thus refused. This Chapter XIII-A application succeeds. I pass an order terms of prayers (a) and (b) of the Master’s Summons. I order an enquiry into mesne profit from 1st November, 2010 till the date of recovery of possession or three years from the date of this decree whichever is earlier. I appoint Mr. Anil Kumar Gupta, Advocate of Bar Library Club as the Special Referee to determine the mesne profit. He should file a report within three months from the date of communication of this order to him. The Special Referee be paid remuneration @ 600 GMs. per sitting to be shared equally by the parties. This suit is part decreed to the above extent. The Chapter XIII-A application being G.A. No. 621 of 2011 is allowed also to the above extent only. The claims in the other prayers of the Master’s Summons will stand trial. Let the above decree be drawn up expeditiously. Urgent certified photocopy of this judgment/ order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. Later: Mr. Das for the defendant prays for stay of the above judgment and decree. Considering the circumstances I grant the defendant six months time to vacate the premises in terms of the judgment and decree.