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1974 DIGILAW 42 (CAL)

Arun Kumar Chatterjee v. Karuna Rakshit

1974-02-15

N.C.Mukherji

body1974
JUDGMENT 1. THIS is an application under Section 115 of the Code of Civil Procedure and is directed against orders Nos. 27 and 28 dated 11th may 1973 passed by Shri B. B. Sarkar, munsif, 3rd Court, Alipore, in Title suit No. 118 of 1972. The opposite party filed a suit for ejectment against the petitioner only on the ground of default in payment of rent. On 2.6.72 the petitioner filed an application under section 17 (1) and another application under Section 17 (2) of he West Bengal premises Tenancy Act, 1956. 2. IN pursuance of the order passed on the application under Section 171 (1), the petitioner deposited the rent for the month of May 1972, and also rent for subsequent months in the Court. The learned Munsif on 5th of December 1972 disposed of the application filed by the petitioner under Section 11 (2) and directed the petitioner to deposit the amount mentioned in the order within one month from the said date. The petitioner complied with the said order and on 4th of January 1973 he deposited the rent as directed. On 24.1.73 the opposite party filed an application for modification of the order passed on 3.12.72 praying that the predecease in office of shri B. B. Sarkar while passing the order under Section 17 (2) d not direct the petitioner 10 deposit the interest along with the sum determine ed. The petitioner filed an objection and after hearing the learned munsif shri Sarkar observed that under section 17 (2) the payment of interest at the statutory rate was a mandatory provision and it was a mistake on the part of the Court not to grant inheres that being so, the learned Munsif allowed the application under Section 151 and modified the order passed on 5.12.72 and directed the petitioner to deposit a sum of Rs. 51.20 being interest on the arrears with one month from date. Being aggrieved by the afore said order the present application bias been, filed. Mr. Dilip Kumar Sett appearing on behalf of the petitioner submits that there is no provision in section 17 (2) to allow inheres. According to the provisions of Section 17 (2) a tenant can raise a dispute and it is necessary for the Court to determine that dispute provided the tenant complies with the provisions of Section 17 (1) of the Act. According to the provisions of Section 17 (2) a tenant can raise a dispute and it is necessary for the Court to determine that dispute provided the tenant complies with the provisions of Section 17 (1) of the Act. In this case the provisions of Section 17 (1) ware complied with by the petitioner. The petitioner's objection under Section 17 (2) was considered by the Court and ultimately the Court directed the petitioner to deposit an amount within one month from the date of the order. The petitioner complied with the said order within time, Long after that on 24th of January, 1973, the opposite party filed an application for modification of the said order. 3. MR. Bose contends that according to the provisions of Section 17 (1) appellant while depositing admit Tec arrears of rent is also liable to deposit interest on the aforesaid amount. It is therefore only reasonable that the tenant will also be liable to pay interest on the amount which is determined by the Court and which amount he is directed to deposit in pursuance of an order on his application under Section 17 (2). It is true that a tenant is liable to pay interest while depositing the arrears of rent according to the provisions of Section 17 (1) but there is no provision for payment of interest while deposits the amount which he is directed to deposit according to the provisions of Section 17 (2). 4. GOING through the provisions of section 17 (2), I agree with the submission made by Mr. Sett and hold that while passing the order under Section 17 (2) directing the defendant to deposit the arrears of rent is not obligatory for the Court to direct the defendant to deposit also the interest on the said amount. In the present case the court considered all the circumstances of the case and thought it fit not to pass any order directing the petitioner to deposit the interest, I am also of opinion that it was wrong on the part of the learned Munsiff to hold that according to the provisions of Section 17 (2) payment of interest at the statutory rate was mandatory. That being so, the learned Munsiff was not justified in modifying the order passed by his predecessor on 5.12.72 which order was duly complied with by the petitioner. That being so, the learned Munsiff was not justified in modifying the order passed by his predecessor on 5.12.72 which order was duly complied with by the petitioner. In the circumstances the order No. 27 dated he 11 the May of 1973 directing the petitioner to deposit interest to the tune of rs. 51.20 is set aside. The opposite party on 20th February 1973, filed an application for amendment of plaint according to the provisions of order VI Rule 17 of the Code of Civil procedure. That application was allowed by order No. 28 dated 11th of May, 1973. Mr. Sett contends that the learned Munsif was wrong in allowing the application for amendment. He submits that the suit was filed by the opposite party on 3rd of April, 1972, only on the ground that the petitioner is a habitual defaulter and has failed and neglected to pay rent since the month of October 1971. No other ground was taken in the said suit. After the service of summons the petitioner duly filed an application under Section 17 (1) and complied with the order passed on the said application. The petitioner also complied with the order passed on the application under Section 17 (2). As has already been indicated that order under Section 17 (2) was passed on 5.12.72 and the petitioner deposited the amount determined by the Court on 4.1.73. It is after that on 20.2.73, the opposite party filed an Application for amendment. In the said application the opposite party wanted to add several new grounds of ejectment viz. that the petitioner has been using the suit premises for office purpose in contravention of his agreement and without written or verbal consent of the opposite party, that the petitioner has sublet some portion of his tenancy, that the petitioner is guilty of nuisance and the petitioner has caused material damage to the premises. Mr. Sett contends that after the petitioner complied with the order passed on his application under Section 17 (2) the opposite party realised that his suit was bound to fail according to the provisions of Section 17 (4) of the act. Realising that situation he filed a frivolous application by which he wanted to add a number of grounds for ejectment hoping that he might succeed on one or more of those grounds. Mr. Realising that situation he filed a frivolous application by which he wanted to add a number of grounds for ejectment hoping that he might succeed on one or more of those grounds. Mr. Bose, however, urges that it is to be seen whether the nature of the suit is changed, and if not, there is no bar in allowing an application for amendment. He contends that the original suit was one for ejectment and by subsequent amendment also the suit would remain one for ejectment though new ground; were sought to be added. Mr. Sett joins issue and contends that by complying with the order passed under Section 17 (2) the petitioner could claim statutory protection and the petitioner could not be deprived of thru protection by allowing the opposite party to amend his plaint. In support of his contention Mr. Bose refers to a decision reported in ((1) Anil Ranjan Das Gupta, v. B. N. Biswas 54 C.W.N. 536). In this case a suit for ejectment was brought on the footing of a notice to quit and of the bonafide requirement of the premises for the use and occupation of the landlord, at a time when the Rent Ordinance of 1946 was in force. The West Bengal Premises Rent control Act, 1948 having come in to force when the suit was pending, the plaint was sought to be amended by introducing a new ground or automatic termination of tenancy under section 12 (3) of the latter Act, viz. that the tenant had failed to pay rent for three consecutive months. It was held by this Court that the amendment should be allowed since it does not niter the nature of the case at all, which remains a suit for ejectment not does it niter the cause of action which was and is the termination of the tenancy. Mr. Bose next refers to a decision reported in (3) Zainab Bai and Ors. v. Narayang chilrapat Co. Ltd. A.I.R. 1960 Bombay 194). It is a decision of a Single Judge and it merely laid down that "whore a suit for ejectment of a tenant is filed on certain grounds subsequent addition of fresh ground in the plaint does not change the nature of suit and therefore, amendment of plaint by adding fresh ground is admissible". Ltd. A.I.R. 1960 Bombay 194). It is a decision of a Single Judge and it merely laid down that "whore a suit for ejectment of a tenant is filed on certain grounds subsequent addition of fresh ground in the plaint does not change the nature of suit and therefore, amendment of plaint by adding fresh ground is admissible". The facts of the cases referred to above are completely different from the facts of the present case. On this point Mr. Sett refers to an unreported decision of our High Court in Civil Revision Case no. 731 of 1969. In that case the original suit was for ejectment on the ground of reasonable requirement. After three years a new ground, namely, the ground of default was thought to be included in the plaint by way of amendment. R.N. Dutta, J. held this alters the nature of the case and so the amendment should not have been allowed I fully agree with the above finding Mr. Sett also refers to a Reach decision of this Court reported in (2) B.B. Sarkar and Sons v. Powell and Co. 60 C.W.N. 840) wherein it has been held "if an order for amendment of plaint affected rights accrued to the other party or prejudiced him in any way, the order allowing the amendment would be an order deciding a question touching the merits of the controversy as between the parties. . . . . . ". Considering the facts and circumstances of the case and at on the decisions referred to above I am of the opinion that the learned Munsif was wrong to think that by complying with the Court's order under Section 17 (2) the defendant did not acquire a right against eviction as envisaged in section 17 (4) and the amendment would not jeopardise that right. 1 find that if the amendment be allowed the suit would be completely changed. Instead of the suit being one on the ground of default it would be a suit on the ground of sub letting. breach of contract and nuisance. All these grounds if they really existed were known to the opposite party, and there was absolutely no justification why these grounds were to mentioned in the plaint. For the reasons stated above, the order passed by the learned Munsif on 11.5.73 allowing the application for amendment must be set aside. breach of contract and nuisance. All these grounds if they really existed were known to the opposite party, and there was absolutely no justification why these grounds were to mentioned in the plaint. For the reasons stated above, the order passed by the learned Munsif on 11.5.73 allowing the application for amendment must be set aside. In the result, the orders Nos. 27 and 28 dated 11th of May 1973 are set aside and the Rule is made absolute. There will be no order for costs. Rule made absolute.