1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4249 OF 2018 (Arising out of S.L.P.(c) No. 27775 of 2017)

Apollo Zipper India Limited            ….Appellant(s)

VERSUS

W. Newman And Co. Ltd.    ….Respondent(s)

                 J U D G M E N T

Abhay Manohar Sapre, J.

1. Leave granted.

2. This  appeal  is  directed  against  the  final

judgment and decree dated 13.06.2017 passed by

the High Court at Calcutta in APD No. 510 of 2015

whereby  the  Division  Bench  of  the  High  Court

allowed the appeal  filed by the  respondent herein

2

and set aside the order dated 14.10.2015 passed by

the  Single  Judge  of  the  High  Court  and  granted

unconditional leave to the respondent to defend the

suit and remanded the suit for its trial on merits.  

3. The short issue involved in this appeal relates

to grant of  leave to the respondent (defendant)  to

defend  the  summary  eviction  suit  filed  by  the

appellant  against  them  in  relation  to  the  suit

premises.

4.   In order to appreciate the issue involved, it is

necessary to set out the background facts which led

to  filing  of  the  summary  eviction  suit  leading  to

passing of the impugned order.  

5. The  background  facts  of  the  case  are  as

follows:

6. The  appellant  is  the  plaintiff  whereas  the

respondent is the defendant in a summary suit out

of which this appeal arises.

3

7. There is a Hotel in the city of Kolkata called

“Great  Eastern  Hotel”  (hereinafter  referred  to  as

“GEH”).  It  is  situated  in  Old  Court  House  Street

(Hemanta  Basu  Sarani),  Kolkata.  The  Hotel  has

been in existence for the last more than a century.

It is a heritage Hotel. The Hotel building has several

floors  and  consists  of  several  shops,  business

premises including the Hotel.  The building and the

Hotel was owned and run by the Company called

“Great Eastern Hotel Limited” (hereinafter referred

to as “GEHL” ).

8. The shops and business premises in the Hotel

building are mostly on the ground floor and were let

out by GEHL to different persons as their tenants.

One  such  business  premises  (No.18)  measuring

around 6000 sq. feet, which is the subject matter of

this  appeal  (hereinafter  referred  to  as  the  “suit

4

premises”), was let out by GEHL, a century back, to

the  respondent  for  non-residential  purpose.  The

monthly  rent  of  the  suit  premises at  the  relevant

time was Rs.40,000/-.   

9. In  the  year  1975,  the  State  of  West  Bengal

passed  an  Act  called  “The  Great  Eastern  Hotel

(Taking Over of Management) Act, 1975 (Act XXXII

of 1975)” (hereinafter referred to as “the Act 1975”).

The Act 1975 was passed to provide for taking over

of the management of the undertaking of the GEHL

as defined under Section 2(d) for a limited period of

five years in public interest and also to secure its

proper  management.  Pursuant  thereto,  the  State

Government  took  over  the  management  of  the

undertaking of the GEHL.  

10. The Act of 1975 was followed by another Act

passed by the State of West Bengal on the expiry of

five years in 1980 called “The Great Eastern Hotel

5

(Acquisition of Undertaking) Act, 1980 (Act No XXVII

of 1980)”  (hereinafter referred to as “the Act 1980”).

The Act 1980 was passed for the acquisition of the

undertaking of the GEHL.  

11. On 18.06.1981, the State Government issued a

notification  under  Section  3(1)  of  the  Act  1980

whereby the undertaking of GEHL stood transferred

to and vested absolutely in the State Government

with effect from 17.07.1980.

12. The  Governor  issued  a  notification  under

Section 3 (2) of the Act 1980 for better and efficient

management and administration of  the  GEH, and

directed therein that the undertaking of the GEHL

shall  stand  transferred  to  and  vest  in  the  Great

Eastern  Hotel  Authority  (for  short,  “GEHA”)

constituted under Section 5 (1) of the Act 1980.  

13. Consequent upon enacting of the Act 1980 and

issuance  of  the  aforementioned  notification under

6

the  Act  of  1980,  the  State  Government  (GEHA)

became the owner of the GEHL (which included the

land, Hotel building, assets and the management of

GEHL) by operation of law.  

14. As a consequence thereof, the respondent, who

was  originally  the  tenant  of  GEHL,  became  the

tenant of the State Government, i.e., GEHA on the

same  terms  and  conditions  with  effect  from

17.07.1980.  The  respondent  too  accepted  this

transfer  of  ownership  of  the  suit  premises  and

accordingly  started  paying  monthly  rent  of

Rs.40,000/- to GEHA which they  paid till 2005.

15. On 05.10.2005, the Governor issued another

notification under Section 3(2) of the Act 1980 and

directed therein that all the fixed and current assets

of  the  GEHA  be  vested  in  the  Company  called

"Apollo Zipper India Limited" (appellant herein).

7

16. As a result of issuance of this notification, all

the assets (fixed and current) of GEHA stood vested

in  the  appellant-Company  with  effect  from

05.10.2005. This is how the appellant became the

absolute owner of GEHA including the suit premises

let out to the respondent.  

17. By  letter  dated  24.02.2006,  GEHA  informed

the  respondent  about  the  transfer  of  their  entire

assets to the appellant with effect from 05.10.2005

followed by another letter dated 28.04.2006 of the

Advocates  of  GEHA  sent  to  the  respondent

informing them about the transfer of ownership and

assets  of  GEHA to  the  appellant  with  effect  from

05.10.2005 including transfer of the suit premises

to the appellant.

18. On 17.05.2012, the appellant sent  a  quit

notice to the respondent under Section 106 of the

Transfer  of  Property Act,  1882(hereinafter  referred

8

to as “the TP Act”) and terminated the respondent's

tenancy with effect from 03.06.2012 and demanded

arrears  of  rent  and  vacant  possession  of  the

tenanted premises from the respondent. On receipt

of the quit notice, the respondent did not reply to it.

(See page180 of SLP- order of the Single Judge).

19. This  led  to  filing  of  the  summary suit  being

Civil Suit No.201/2012 by the appellant against the

respondent on the original side of the High Court at

Calcutta  claiming  therein  arrears  of  rent

(Rs.39,20,000/-), the vacant possession of the suit

premises  and  mesne  profits at  the  rate  of

Rs.40,000/- per day.  

20. The suit was filed under Chapter XIII- A (Rule

1-B)  of  the  Rules  of  the  High  Court  at  Calcutta

(original  side),  1914  (for  short,  “The  Rules”).  The

appellant  filed  evidence  by  way  of  affidavit  in

support  of  their  case.  The  respondent  on  being

9

served of the summons of the suit also filed affidavit

opposing the suit of the appellant.  

21. It  may be mentioned here that the appellant

filed  another  Civil  Suit  No.53/2007  against  the

respondent  in  the  High  Court  at  Calcutta  for

permanent  injunction  restraining  them  from

carrying  out  any  changes  in  the  nature  and

character of the suit premises and from transferring

and alienating the suit premises to any third party.  

22. Similarly,  the  respondent  also  filed  one  suit

(Title Suit No.1183/2012) in the City Civil Court at

Calcutta against the appellant for a declaration that

the  quit  notice  dated  17.05.2012  sent  by  the

appellant  to the respondent under Section 106 of

the TP Act is void, that the respondent is a monthly

tenant  of  the  suit  premises,  and  also  prayed  for

issuance  of  mandatory  injunction  against  the

appellant, who was made defendant No.1 in the said

10

suit, and Bharat Hotels Ltd., GEHA and the State of

West  Bengal  as  defendant  Nos.  2,  3  and  4

respectively,  directing them to accept the monthly

rent  from  the  respondent(plaintiff)  at  the  rate  of

Rs.1600/- in respect of the tenanted premises. This

suit is pending.

23. The  respondent  also  filed  Writ  Petition

No.569/2004  in  the  High  Court  at  Calcutta

challenging therein the rate of monthly rent of the

suit premises.

24. Coming now to the facts of the summary suit

filed by the appellant (C.S. No.201 of 2012) out of

which  this  appeal  arises,  the  appellant  (plaintiff)

claimed  that  they  are  entitled  to  a  decree  for

eviction  against  the  respondent  from  the  suit

premises and also a decree for arrears of rent and

mesne profits under Rule 6 of the Rules because the

respondent  has  failed  to  raise  any  arguable  and

11

substantial  defense  on  merits  in  support  of  their

case in answer to the appellant's summary suit.

25. The  respondent,  however,  raised  essentially

three grounds to oppose the appellant's suit by way

of defense and sought leave to defend the suit on

the said grounds.

26.  First,  the  suit,  as  filed by  the  appellant  by

taking recourse to the provisions of the TP Act, is

not maintainable. According to the respondent, the

suit should have been filed under the West Bengal

Premises  Tenancy  Act,  1997  (for  short,   “the

Tenancy Act”) because the monthly rent of the suit

premises  is  less  than  the  limit  prescribed  under

Section  3(f)  of  the  Tenancy  Act  (monthly  rent  is

Rs.1600/-  whereas  the  limit  prescribed  is

Rs.10,000/-.)

27. Second,  the  respondent  has  not  attorned  to

the appellant inasmuch as it is also not clear as to

12

who  is  the  owner  of  the  suit  premises,  viz.,  the

appellant-Company  or  Bharat  Hotels  limited  and,

therefore,  the  appellant  is  required to  prove  their

title over the suit premises. It is more so for want of

any  attornment  made  by  the  respondent  of  the

appellant's ownership and the tenancy in question.

This,  according  to  the  respondent,  needs  an

elaborate trial in the suit.

28. Third, the monthly rent of the suit premises is

Rs.1600/-  whereas  the  respondent  is  paying

Rs.38,400/-  towards  maintenance  charges  to  the

landlord.  It  was  contended  that  since  there  is  a

dispute  as  to  whether  the  monthly  rent  is

Rs.40,000/- or Rs.1600/-, the same also needs an

elaborate trial on merits in the suit.

29.   The Single Judge, by order dated 14.10.2015,

declined to grant leave to defend to the respondent

and  decreed  the  appellant's  suit  by  passing  an

13

eviction decree against the respondent in relation to

the suit premises.  The Single Judge held that none

of  the  grounds  raised  by  the  respondent  to  seek

leave to defend the suit are prima facie arguable and

nor  have  any  merit  and  nor  these  grounds

constitute  any  substantial  defense,  which  may

require  an  elaborate  trial  on  such  grounds  and,

therefore, no case is made out to grant any leave to

defend the suit to the respondent.  

30. In other words, the Single Judge held, that the

summary suit is maintainable under the provisions

of  the  TP  Act,  that  the  monthly  rent  of  the  suit

premises is  Rs.40,000/-,  that  the  respondent has

attorned  to  the  appellant,  that  the  appellant  has

prima facie proved their title over the suit premises,

that  the  provisions  of  the  Tenancy  Act  has  no

application  because  the  monthly  rent  of  the  suit

premises  is  above  the  prescribed  limit  of

14

Rs.10,000/- and lastly, to record these findings, no

elaborate trial in the suit is required inasmuch as

such findings can be recorded on the basis of the

documents filed by the parties.  

31. The respondent felt aggrieved and filed appeal

before  the  Division  Bench  of  the  High  Court.  By

impugned judgment, the Division Bench allowed the

respondent's  appeal,  set  aside  the  order  of  the

Single  Judge  and  granted  unconditional  leave  to

defend the suit to the respondent and remanded the

suit for its trial on merits.  

32. The Division Bench was of the view that there

is  some  dispute  regarding  the  title  over  the  suit

premises  as  to  who  is  the  owner  of  the  suit

premises, namely, whether the appellant-Company

or the other Company,i.e., M/s Bharat Hotels Ltd.  

33. In other words, the Division Bench held that

the question of title over the suit premises needs to

15

be gone into detail in the suit with a view to find out

as to who is the actual owner of the suit premises

and hence  an arguable  case  in  defense  has  been

made out by the respondent while seeking leave to

defend the summary suit.

34. The plaintiff (appellant) felt aggrieved and filed

this  appeal  by  way  of  special  leave  against  the

judgment of the Division Bench in this Court.

35. Heard  Mr.  Mukul  Rohtagi  and  Mr.  Ranjeet

Kumar, learned senior counsel for the appellant and

Mr. Jaideep Gupta, learned senior counsel for the

respondent.  

36. Mr. Mukul Rohatgi, learned senior counsel for

the appellant  (plaintiff)  while  assailing the  legality

and correctness of the impugned judgment, mainly

reiterated the same submissions, which were urged

by  the  appellant  before  the  two  Courts  below  in

support of their case.

16

37. In  substance,  his  submission  was  that  the

reasoning  and  the  conclusion  arrived  at  by  the

Single Judge is just, proper and legal and hence the

order of the Single Judge deserves to be restored by

setting aside the impugned judgment.  

38. Learned counsel urged that none of the three

grounds raised by the respondent for grant of leave

to defend the suit were either arguable or had any

prima  facie merit  therein.  In  other  words,  the

submission  was  that  all  the  three  grounds  were

raised for  the  sake of  raising  having  no arguable

and substantial defense whether on facts or in law

and,  therefore,  Single  Judge  was  justified  in

declining  to  grant  leave  to  defend the  suit  to  the

respondent and was justified in passing decree for

eviction against the respondent.  

39. On merits,  learned counsel  pointed out  with

reference  to  each  ground  that  the  documents  on

17

record  would  prima  facie show  that  firstly,  the

monthly  rent  was  Rs.40,000/-,  Secondly,  the

appellant  was  the  owner  of  the  suit  premises,

thirdly,  the  respondent  had  duly  attorned  to  the

appellant and fourthly, the suit was rightly filed by

invoking the provisions of  the TP Act because the

provisions of the Tenancy Act had no application to

the suit premises due to monthly rent of  the suit

premises exceeding the limit specified under Section

3 (f) of the Tenancy Act.

40. In  reply,  Mr.  Jaideep  Gupta,  learned  senior

counsel for the respondent supported the impugned

judgment and contended that no case is made out

to  interfere  in  the  impugned  judgment.  Learned

counsel then elaborated his submission in support

of the impugned judgment and prayed for dismissal

of the appeal.

18

41. Having  heard  the  learned  counsel  for  the

parties and on perusal of the record of the case, we

are  inclined  to  allow  the  appeal,  set  aside  the

impugned  judgment  and  restore  the  order  of  the

Single Judge.

42. In our considered opinion, the reasoning and

the conclusion arrived at by the Single Judge while

declining  to  grant  leave  to  defend the  suit  to  the

respondent  and  decreeing  the  appellant's  suit  for

eviction  deserves  to  be  restored  as  against  the

impugned judgment passed by the Division Bench.

43. In  other  words,  we  are  of  the  considered

opinion  that  the  grounds,  which  were  pressed  in

service by the respondent, to seek leave to defend

the suit  are  neither  arguable  nor have any  prima

facie merit  therein  and,  therefore,  there  does  not

arise any need to have any trial in the suit on merits

19

on  such  grounds.  This  we  say  for  the  following

reasons.  

44. The first question that arises for consideration

in this appeal is whether the respondent attorned to

the appellant or whether the appellant is required to

prove their title over the suit premises or whether

there exists any doubt or confusion over the issue of

title  of  the  suit  premises  so  as  to  grant  leave  to

defend to the respondent to probe these questions

elaborately on merits in the summary suit filed by

the appellant against the respondent for eviction.

45.    It is a settled principle of law laid down by

this  Court  that  in  an  eviction  suit  filed  by  the

landlord against the tenant under the Rent Laws,

when the issue of title over the tenanted premises is

raised, the landlord is not expected to prove his title

like what he is required to prove in a title suit.

20

46. In  other  words,  the  burden  of  proving  the

ownership in an eviction suit is not the same like a

title suit. (See  Sheela & Ors. vs. Firm Prahlad Rai

Prem Prakash, 2002 (3) SCC 375, Para 10 at page

383 and also Boorugu Mahadev & Sons & Anr. vs.

Sirigiri  Narasing Rao & Ors. 2016 (3)  SCC 343,

Para 18 at page 349 ).

47. Similarly, the law relating to derivative title to

the  landlord  and  when  the  tenant  challenges  it

during subsistence of his tenancy in relation to the

demised property is also fairly well settled. Though

by virtue  of  Section 116 of  the  Evidence  Act,  the

tenant is estopped from challenging the title of his

landlord, yet the tenant is entitled to challenge the

derivative title of an assignee of the original landlord

of the demised property in an action brought by the

assignee against the tenant for his eviction under

the  Rent  laws.  However,  this  right  of  a  tenant  is

21

subject  to  one  caveat  that  the  tenant  has  not

attorned to the assignee. If the tenant pays rent to

the assignee or otherwise accepts the assignee's title

over  the  demised  property,  then  it  results  in

creation of the attornment which, in turn, deprives

the  tenant  to  challenge  the  derivative  title  of  the

landlord.  [See  Bismillah  De  (dead)  by  Legal

Representatives vs.  Majeed Shah.  2017 (2)  SCC

274 Para 24]  

48. It  is  equally  well-settled  law  with  regard  to

attornment that it does not create any new tenancy

but once the factum of attornment is proved then by

virtue  of  such  attornment,  the  old  tenancy

continues.  (See  Uppalapati  Veera  Venkata

Satyanarayanaraju  &  Anr.  Vs.  Josyula

Hanumayamma & Anr. AIR 1967 SC 174 ).

49. In the case at hand, we find that it is not in

dispute that the original owner of the suit premises

22

was GEHL, who had created the original contract of

tenancy with the respondent in relation to the suit

premises.  

50. It  is  also  not  in  dispute that  the  GEHL was

then acquired by the State by Act of 1975 and the

Act  of  1980,  as  a  consequence  thereof,  the  suit

premises  stood  vested  in  an  authority  called  the

GEHA by operation of law as per Section 3 read with

Section  5  of  the  Act  1980  with  effect  from

17.07.1980 and 22.06.1981.  

51. It  is  also not in dispute that the respondent

accepted this change of ownership and accordingly

started paying monthly rent to the GEHA from 1980

as monthly tenant of the GEHA and which they paid

till 2005.  

52. It is also not in dispute that in terms of the

notification issued by the Governor on 05.10.2005

under  Section  3(2)  of  the  Act  of  1980,  the  suit

23

premises then stood transferred and vested in the

appellant-Company  (see  notification  dated

05.10.2005) by operation of law and the appellant

accordingly became the owner of the suit premises

with effect from 05.10.2005.

53. It is further not in dispute that the GEHA and

their  lawyer,  vide  letters  dated  24.02.2006  and

28.04.2006,  informed  the  respondent  about  the

change of ownership of the suit premises and the

appellant  acquiring  the  ownership  of  the  suit

premises vide notification dated 05.10.2005.

54. In our considered opinion, the aforementioned

undisputed facts,  which are matter  of  record,  are

sufficient  to  hold  in  the  eviction  suit  that  the

appellant  became  the  owner  of  the  suit  premises

with effect from 05.10.2005.  

55. In  our  considered  view,  the  respondent  also

attorned  to  the  appellant  and  accepted  the

24

ownership of the appellant over the suit premises,

which is  prima facie proved by the three facts and

circumstances as set out below.  

56.  First,  when the appellant sent a quit notice

dated 17.05.2012 to the respondent under Section

106  of  the  TP  Act  determining  the  tenancy  and

calling upon the respondent to pay the arrears of

rent and vacate the suit premises, despite receipt of

the quit notice, they did not reply to it.  

57. In  our  view,  the  respondent  ought  to  have

replied  to  the  notice  at  the  first  available

opportunity, which they failed to do so. It amounts

to waiver on their part to challenge the invalidity or

infirmity of the quit notice including the ownership

issue raised therein.

58. In the case of  Parwati Bai  vs. Radhika,  AIR

2003 SC 3995, the question arose as to whether the

tenancy  was  terminated  in  accordance  with  the

25

provisions  of  Section  106  of  the  TP  Act.  The

defendant  despite  receiving  the  notice  from  the

plaintiff did not reply to it.  

59. This Court held that if the defendant does not

raise any objection to the validity of quit notice at

the first available opportunity, the objection will be

deemed to have been waived. The following Para 6 of

the decision is apposite which reads as under:

“6. The singular question to be examined in the present case is whether the tenancy was terminated in accordance with the provisions of  Section  106  of  the  Transfer  of  Property Act. The receipt of notice by the defendant is admitted  in  the  written  statement.  The defendant  has  not  raised  any  specific objection as to the validity of the notice. An objection  as  to  invalidity  or  infirmity  of notice  under  Section  106  of  the  TP  Act should  be  raised  specifically  and  at  the earliest; else it will be deemed to have been waived  even if  there  exists  one.  It  cannot, therefore,  be  said  that  the  notice  in  the present  case suffered from any infirmity.  A copy of the notice was exhibited and proved by the plaintiff as Ext. P-4.”

26

60.  Second,  the  respondent  by  letters  dated

13.06.2006,  27.06.2006,  05.07.2006  and

11.07.2006, sent to the appellant on the question of

ownership of the suit premises and payment of rent

had  expressed  their  willingness  to  attorn  and

continue the  tenancy with the  appellant  and also

offered to pay rent to the appellant. (See pages 198

& 199 of  the  SLP Paper  Book-order  of  the  Single

Judge)

61. Third,  the  respondent  in  their  civil  suit

(No.1183  of  2012)  filed  against  the  appellant  in

Paras 15, 17, 18 and relief clause (e) of the plaint

admitted  the  ownership  of  the  appellant  over  the

suit premises and went to the extent of seeking the

mandatory  injunction  against  the  appellant

directing them to accept the monthly rent of the suit

premises from the respondent.

27

62. In other words, reading of the aforementioned

paras  in the respondent’s plaint including the relief

clause (e) would go to show that the respondent was

all  along  willing  to  accept  and  indeed  actually

accepted  the  ownership  of  the  appellant  over  the

suit  premises  and,  therefore,  sought  mandatory

injunction against the appellant to accept them as

tenant.  The  conduct  of  the  respondent,  therefore,

disentitles them to now raise a new plea questioning

the title of the appellant over the suit premises and

a  plea  of  attornment.   Both,  in  our  opinion,  are

wholly misconceived pleas and, therefore, deserve to

be rejected.

63. As mentioned above, the title of  the landlord

over  the  tenanted  premises  in  a  suit  for  eviction

cannot be examined like a title suit. Similarly, the

attornment can be proved by several circumstances

28

including taking into consideration the conduct of

the tenant qua landlord.    

64. The  aforesaid  three  circumstances,  in  our

opinion,  are,  therefore,  more  than  sufficient  to

record a finding that the appellant was  prima facie

able to prove their  title  over the suit  premises so

also was able to prove the factum of  “attornment”

made  by  the  respondent  in  relation  to  the  suit

premises in appellant’s favour thereby entitling the

appellant  to  determine  the  contractual  tenancy

which was devolved upon them by operation of law.

65. In the light of the foregoing discussion, we are

unable to agree with the view taken by the Division

Bench that there was some dispute or confusion as

to  who is  the  owner of  the  suit  premises.  In our

view,  there  was  neither  any  dispute  and  nor

confusion and nor any ambiguity over the question

29

of  title  over  the  suit  premises  which  needed  any

elaborate inquiry.  

66.  This takes us to examine the next question as

to what was the monthly rent of the suit premises –

whether  Rs.1600/-  towards  monthly  rent  and

Rs.38,400/-  towards  maintenance  charges  as

claimed  by  the  respondent  or  Rs.40,000/-  as

claimed by the appellant.

67. In  our  view,  the  monthly  rent  of  the  suit

premises was Rs.40,000/-. It is for the reason that

Firstly,  the  respondent  had  been  paying

Rs.40,000/- per month to their previous landlord –

GEHA for  a  long time;  Second,  the  bifurcation of

Rs.40,000/- was being sought by the respondent so

that they may get the benefit of applicability of the

Tenancy Act to defend therein tenant’s right which

they failed to prove and lastly, the rent receipts filed

by the parties clearly proved that the monthly rent

30

of  the  suit  premises  was  Rs.40,000/-  and  not

Rs.1600/-.   

68. This takes us to examine the next question as

to whether the suit filed by the appellant invoking

the provisions of the TP Act was maintainable or it

should have been filed under the Tenancy Act.

69. In our opinion, the appellant rightly filed the

suit by invoking the provisions of the TP Act. It is

for the reason that once the monthly rent of the suit

premises was found to exceed the limit prescribed

under Section 3(f) of the Tenancy Act, the provisions

of the Tenancy Act had no application to the suit

premises.

70. Section 3(f) of the Tenancy Act says that any

premises let out for non-residential  purpose when

carries more than Rs. 10,000/- as monthly rent in

the  areas  included  within  the  limits  of  Municipal

31

Corporation, the provisions of the Tenancy Act will

not apply.  

71. In the case at hand, the monthly rent of the

suit premises was Rs.40,000/- and, therefore, the

appellant was well within their right to file summary

suit against the tenant's eviction and for recovery of

the  arrears  of  rent  by  taking  recourse  to  the

provisions of the TP Act read with Rule 1(B) of The

Rules  applicable  to  the  suits  filed on the  original

side jurisdiction of the High Court at Calcutta.

72. In the light of the foregoing discussion, we are

of the view that the respondent failed to raise any

arguable and substantial defense as required under

Rule 6 read with Rule 9 of the Rules and the three

grounds raised for seeking leave to defend the suit

were only for the sake of raising and had no factual

or/and legal foundation to stand for trial in the suit

and  hence  no  leave  can  be  granted  to  the

32

respondent on such grounds under Rule 9 of  the

Rules.  It  was,  therefore,  rightly  declined  by  the

Single  Judge but wrongly granted by the Division

Bench.

73. In view of the foregoing discussion, the appeal

succeeds and is allowed. Impugned judgment is set

aside and that of the Single Judge is restored.   

74. The respondent is granted six months’ time to

vacate  the  suit  premises  subject  to  the  condition

that they shall deposit the entire arrears of rent up

to date at the rate of Rs.40,000/- per month within

one  month  from  the  date  of  this  order  and  also

deposit six months’ rent by way of damages for use

and occupation within one month in advance.  

75. The  entire  amount,  as  directed  above,  be

deposited with the High Court. The appellant shall

be entitled to withdraw the sum so deposited. The

respondent  shall  also  furnish  the  undertaking  in

33

this  Court  within  two  weeks  stating  therein  that

they will vacate the suit premises within six months

from the date of this order and will also deposit the

sum, as directed above, in time. Failure to file the

undertaking and deposit of the amount will entitle

the  appellant  to  execute  this  order  against  the

respondent on the expiry of one month.

76. As  a  consequence  of  this  judgment,  all  the

pending  cases  mentioned  above  such  as,  C.S.

No.53/2007, Title Suit No.1183/2012, and W.P. No.

569 of 2004 which were filed by the parties against

each other in various Courts in relation to the suit

premises and, if pending till date, stand accordingly

disposed of.          

   ………...................................J. [R.K. AGRAWAL]

                                     …...……..................................J.

        [ABHAY MANOHAR SAPRE] New Delhi; April 20, 2018