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1979 DIGILAW 248 (CAL)

Parul Banerjee v. Anand Kumar Agarwalla

1979-07-09

MURARI MOHAN DUTT, RAM KRISHNA SHARMA

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JUDGMENT Dutt, J. This Rule is at the instance of the plaintiff and it is directed against order No. 60 dated January, 20, 1979 of the Subordinate Judge, 1st Court Alipore, by the said order the learned subordinate judge allowed the application of the defendant under section 17(2) and 17(2A) (b) West Bengal Premises Tenancy Act 1956 holding inter alia that the defendant was not a defaulter in payment of rent, and that he was entitled to get protection under the provision of section 17(4) of the said Act. 2. The suit for eviction has been filed by the plaintiff alleging, inter-alia, amongst others that the defendant was a defaulter in payment of rent for four months within a period of 12 months. The defendant in his written statement denied the relationship of landlord and tenant between the plaintiff and himself. He also filed an application under the provision of section 17(2) and section 17(2A) (b). In that application also, he denied o the relationship of landlord and tenant between the parties. The learned Subordinate Judge did not decide the question as to whether there was relationship of landlord and tenant between the parties, but he deferred the determination of that question till the hearing of the suit. It transpires that the defendant had by the challan dated February, 16, 1979 deposited rents from May to July 1976. Clearly, therefore, the defendant was a defaulter in payment of rent. The learned Subordinate judge, however, observed that as the defendant had deposited rents for the said months he was not a defaulter, completely. Overlooking the fact that the deposit was made long after the rents for the said months had fallen due. Moreover, the said deposit was made in a lump for the said months. 3. The next question that arose for the decision of the learned subordinate judge was as to the amount of rent. The case of the plaintiff was that the defendant was a tenant under, the plaintiff at a rent of Rs. 550/- per month. The defendant, however denied that the rent was Rs. 550/- but it was alleged by him that the rent was Rs. 300/- and maintenance charges were Rs. 250/- The learned Subordinate Judge came to the finding that the rent was Rs. 300/- and not Rs. 550/- as alleged by the plaintiff for the said sum of Rs. 550/- per month. The defendant, however denied that the rent was Rs. 550/- but it was alleged by him that the rent was Rs. 300/- and maintenance charges were Rs. 250/- The learned Subordinate Judge came to the finding that the rent was Rs. 300/- and not Rs. 550/- as alleged by the plaintiff for the said sum of Rs. 250/- was payable by the defendant on account of maintenance charges. The learned Subordinate Judge in our view committed a mistake. It has been laid down by the Supreme Court in (1) Karnani Properties v. Miss Augustins and ors., AIR 1957 SC 309 that the term 'Rent' has not been defined in the Act and accordingly it must be deemed to have been used in its ordinary dictionary meaning. Further it has been held that the term 'rent' is comprehensive enough to include all payment agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenances but also all furnishings, Electric installations and other amenities agreed between the parties, to be provided by and at the cost of the landlord. In (2) Usha Ranjan Bhattacherjee v. Mahalakmi Thacker 1975(1) CLJ 204 M.N. Roy, J. after considering the said decision of the supreme Court and other decisions has also held that 'rent' means and includes the whole amount which is agreed to be paid by the tenant as consideration for the occupation of the premises. In view of the above decision, the learned Subordinate judge in our view, committed an error or law which is apparent on the face of the impugned order that the said sum of Rs. 250/- payable by the defendant to the petitioner on account of maintenance charges was not included within the amount of rent. We are therefore of the view that the rent that was payable by the defendant to the petitioner was Rs. 550/- per month. 4. If has been stated allegedly that the learned subordinate Judge has not decided the issue as to the relationship of landlord and tenant between the parties. The learned Subordinate judge, in our opinion, has by deferring the said, issue to the date of hearing of the suit, acted illegally and with material irregularity in the exercise of his jurisdiction. 4. If has been stated allegedly that the learned subordinate Judge has not decided the issue as to the relationship of landlord and tenant between the parties. The learned Subordinate judge, in our opinion, has by deferring the said, issue to the date of hearing of the suit, acted illegally and with material irregularity in the exercise of his jurisdiction. There can be no doubt that when such an issue is raised it will be the duty of the court to decide the same before the tenant is asked to deposit rent on his application under section 17(2). The issue may be decided all an issue in the suit along with the application of the defendant under section 17(2). Although the learned subordinate judge did not decide that issue he made certain observations with regard to a document stated to be a memorandum regarding the term of the tenancy. The said memorandum was executed by and between the plaintiff's mother Kamalini Mukherjee and the defendant on this connection, it may be stated that the defence of the defendant in that Kamalini Mukherjee is the landlord and not the plaintiff. When he was confronted with the said memorandum recording the terms of the tenancy executed by both the said Kamalini Mukherjee and the defendant, the defendant denied the execution of the second page by the parties. At this stage we are not to decide whether the defendant had any justification for denying the execution of the First page but clause (ii) of the document which is contained in the second page, the execution of which has been admitted by the defendant, shows that Kamalini Mukherjee could not be the landlord of the defendant. The said document was executed by Kamalini Mukherjee on behalf of the owner and the landlord, the said Prodyot Kumar Mukherjee, since, deceased. The plaintiff's case is that she has got the suit property by virtue of will of the said Prodyot Kumar Mukherjee and that the will has since been duly probated. In the circumstances, the learned subordinate Judge was not at all justified in holding that the said document of the monthly lease was not created but as stated already, it only recorded the tenancy of the tenancy of the defendant in respect of the suit premises. 5. In the circumstances, the learned subordinate Judge was not at all justified in holding that the said document of the monthly lease was not created but as stated already, it only recorded the tenancy of the tenancy of the defendant in respect of the suit premises. 5. As the learned subordinate judge has not decided the issue as to the relationship of landlord and tenant between the parties, the impugned order must be set aside. The learned Subordinate judge is directed to decide the issues of relationship of landlord and tenant between the parties along with the application of the defendant under section 17(2) and 17(2A) (b) of the West Bengal Premises Tenancy Act 1956 in accordance with the law and in the light of the observation made herein above. The Rule is made absolute but there will be no order as to costs. 6. Let the records be sent down as early as possible. 7. The learned Subordinate Judges is directed to dispose of the matter as expeditiously as possible. Sharma, J. : I agree.