Ram Khelown Shaw v. Keshari Debi — 1978 DIGILAW 427 (CAL)

JUDGMENT This matter arises after an application under section 115 of the Code of Civil Procedure against an order dated 9.5.77 under section 13(3) of the West Bengal Premises Tenancy Act passed by Shri N. K. Biswas, Munsif, Fourth Court at Howrah. 2. The facts of the case are that the suit was filed for eviction of the defendant petitioner by the plaintiff opposite party the defendant petitioner being a tenant in respect of the premises No. 38/42. Fakir Bagan Lane, Salkia. The suit was filed on the ground of default since January, 1975. The case of the plaintiff opposite party was that the petitioner was a monthly tenant at a rent of Rs. 20/- per month according to English Calender and on service of summons the defendant appeared and the date fixed for appearance was 15.12.75. On 16.12.75 after appearance an application was filed under section 17(2) and 17(2A) al well as 17(2)(b) of the Act. In the application the defendant petitioner challenged the rate of rent at Rs. 15/- and not Rs. 20/- as alleged in the plaint, and prayed for determination of the rent. On 2.2.1971, the application under section 17(2) and 17(2A) was taken up and it was recorded that the defendant petitioner has been able to satisfy the court by documentary tary evidence that the rate of rent was Rs. 15/- and the plaintiff opposite party also admitted that. It was found by the learned Munsif that the petitioner paid rent from January, 1975 to November, 1975 and thereafter he deposited the rent in court on proper challan and there was thus no outstanding arrears. He held that there was no arrears of rent to be deposited in court but it is ordered that the defendant would go on depositing the current rent month by month in the court at the rate of Rs. 15/- which was found by the court on hearing both the parties. He held that there was no arrears of rent to be deposited in court but it is ordered that the defendant would go on depositing the current rent month by month in the court at the rate of Rs. 15/- which was found by the court on hearing both the parties. It appears that before the order dated 2.2.77 was passed disposing of the application under section 17(2) and 17(2A) the defendant petitioner had deposited in court the rent for March, 1976 and May, 1976 but those were not within 15th of the following month and, therefore, on 3.5.77 the plaintiff filed an application under section 17(3) alleging that the defendant has not been depositing the current rent month by month according to law and the rent for March, 1976 and May, 1976 have been illegally deposited. As against this application made by the plaintiff opposite party the defendant petitioner filed an objection and it was urged in that application that the statements made in the said application are not admitted and the petition is absolutely false and the defendant having complied with the provisions under sections 17(2) and 17(2A), the defence against delivery of possession cannot be struck off. The defendant did not dispute that the payments made in respect of March, 1976 and May, 1976 were not beyond the 15th of the following month as alleged by the plaintiff landlord. The learned Munsif on consideration of the petition and the objection under section 17(3) and after perusal of the challan clime to the finding that it appeared from the challans that the defendant deposited rent for the month of March, 1976 on 19.4.76 and for May, 1976 on 18.6.76 i. e. beyond the statutory period and thereby attracted the mischief of section 17(3) of the West Bengal Premises Tenancy Act. It is this order of the learned Munsif under section 17(3) that is being challenged before this Court. 3. It is this order of the learned Munsif under section 17(3) that is being challenged before this Court. 3. It has been urged by the learned Advocate for the petitioner that section 17 of the West Bengal Premises Tenancy Act if read between the lines would lead to the idea that on appearance in a court after getting summons, it is the statutory duty of the tenant to pay within one month of the service of the summons the amount of rent at which it was last paid subject to the provisions of section 17(2) of the Act and as in this case there was a dispute to the effect that in the plaint the rent was specified at Rs. 20/- and it was the case of the defendant that it was Rs. 15/- but till the adjudication of amount by the court, it was not possible for the defendant to know at what rate the amount excluding the pre-appearance arrears were to be paid. He deposited the pre-appearance arrears and there was no preliminary order passed by the court under section 17(2)(a) of the Act. It was not possible for the defendant petitioner to know at what rate the current arrears after appearance are to be paid and therefore, if by way of abundant caution, he deposited the rent for the months of March, 1976 and May, 1976, that deposit is not statutory deposit under the law and if there was any minimum default in the matter of deposit beyond the time-limit fixed by law, then the statutory penalty cannot be attracted because the deposit was not statutory but a deposit by way of abundant caution. 4. The learned Advocate for the plaintiff opposite party has contended that if the theory of the learned Advocate for the petitioner is accepted, the second part of section 17(1) of Act becomes nugatory. He has argued that under section 17(1) first part, the tenant has obligation under the law to pay to the Rent Controller or deposit in court on appearance all the pre-appearance arrears at the rate at which it was last paid and thereafter, the stage of section 17(2) comes. 5. Section 17(2)(a) lays down that a preliminary order fixing the rate of rent has to bi passed but section 17(2)(a) prescribes that the order has to be passed as soon as possible within a period not exceeding one year. 5. Section 17(2)(a) lays down that a preliminary order fixing the rate of rent has to bi passed but section 17(2)(a) prescribes that the order has to be passed as soon as possible within a period not exceeding one year. He has argued that if within one year no preliminary order is passed regarding the rate of rent in the event of the rate being disputed in that case the tenant would sit tight without making any payment and the second part of section 17(1) would become nugatory. He has pointed out that the second part of section 17(1) is at once attracted into operation without any reference to section 17(2)(a) or (b) because, the second part lays down that the tenant after deposit of the pre-appearance arrears shall thereafter continue to deposit or pay month by month by the 15th of each succeeding month a sum equivalent to the rent at that rate. He has argued that the words "at that rate" has reference to the word "last paid" in the first part of section 17(1) of the Act and has argued that in that event even before the passing of Ii preliminary order or a final order under section 17(2) the tenant will be under an obligation to deposit the current arrears after the lump deposit of the pre-appearance arrears month by month by the 15th of each succeeding month at the rate of Rs. 15/- per month, there was a statutory obligation to deposit the post appearance arrears at the rate last paid, and, therefore, if there was any default in making the payments for the months of Much, 1976 and May, 1976 within the 15th of the following month, section 17(3) of the West Bengal Premises Tenancy Act would at once be attracted into operation because the language of section 17(3) is clear enough to invite penal consequences for non-compliance of the first part or the second part of section 17(1) of the Act. Whether the deposit of the pre-appearance arrears and the current post appearance rent was paid at the admitted rate or rate last paid makes no difference, as here the admitted rate and the rate at which rent was last paid is the same. 6. I have considered the arguments advanced by the learned Advocates for the petitioner and the opposite party. 6. I have considered the arguments advanced by the learned Advocates for the petitioner and the opposite party. It is clear that the petitioner in his petition of objection has not disputed that the payment for March, 1976 or May, 1976 was not made according to law. It is also clear from the objection filed by the petitioner that the petitioner has not given any reasonable excuse for delayed deposit. From the case reported in the matter of (1) Sitala Debi v. Man Bahadur, (76 CWN 435) it was pointed out that though in case of minimum default, the court can afford relief, but court cannot afford relief sue motu unless the party gives some plausible and ostensible explanation for the default. So that there is no explanation offered by the petitioner on that behalf. 7. But in this case one thing is agreed. The order disposing of the application Ors. 17(2) and section 17(2A) was passed on 2.2.77. On that day the present defendant was a defaulter in respect of the payment made for March 1976 and May 1976 but neither the court nor the parties took notice of the same. Now section 17(2A) of the West Bengal Premises Tenancy Act is a very important provision which contains a non-obstanti clause by reason of which, section 17(2A) has got an overriding power over sections 17(1) and 17(2) and the court has to consider whether the defendant is to be allowed to pay the defaulted amount in instalments and the period of default does not only cover the pre-appearance default but also defaults after appearance. In the petition u/s. 17(2A) the defendant made the prayer that the court should determine the period of default and allow the defendant to pay defaulted amount in instalments. But in spite of the existing defaults for March and May 1976, no order was passed thereto. When the defendant is competent to make a prayer u/s. 17(2A) and claims a legal capacity to get a relief, the court should consider whether he should get that relief, otherwise the order u/s. 17(2A) is not complete. In this connection, I may refer to the case reported in (2) 1978 (1) CLJ 646, Pulin Kumar Chowdhury v. Sachindra Mohan Bose & Anr. where Chittatosh Mookerjee J. pointed out. In this connection, I may refer to the case reported in (2) 1978 (1) CLJ 646, Pulin Kumar Chowdhury v. Sachindra Mohan Bose & Anr. where Chittatosh Mookerjee J. pointed out. "Where the court itself through inadvertence had failed to discharge its statutory duty in the matter of calculation of the arrear rent and the interest to be paid by instalments in terms of section 17(2A) (b) read with the proviso thereunder, there could be no question of waiver of such a statutory provision. Therefore, unless and until an application under sub-section (2A) of Section 17 is disposed of by the Court, the provisions of section 17(3) cannot be invoked. Only after a valid order under sub-section (2A) is made and there is a breach of the said order, the question of striking out of defence against delivery of possession under section 17(3), can arise". 8. Under these circumstances, the Court should consider the application u/s. 17(3) after considering the application u/s. 17(2) and 17(2A) with reference to the defaults on March 1976 and May 1976. The fact that the defendant did not make any prayer for condonation of delay does not estop him from getting the relief which is a statutory one. 9. Hence it is ordered that the Rule be made absolute. The order u/s. 17(3) passed by the Ld. Munsif on 9.5.77 is hereby set aside. The matter is sent back to the Ld. Munsif for consideration of the, application u/s. 17(2) and 17(2A) with reference to defaults on March 1976 and May 1976 and after passing an order comprehending those two previous defaults be will take up the application u/s. 17 (3). Let the records be sent down as early as possible.