Sujit Kumar Gupta v. Kartick Chandra Manna — 1979 DIGILAW 322 (CAL)

Judgment This Rule is directed against Order No. 54 dated June 23, 1978 made by the learned Munsif, 4th Court at Alipore. in Title Suit No. 334 of 1974 while disposing of au application under S. 17(2A) and a joint petition made by the parties agreeing that the arrear rent due is to be paid by monthly instalments of Rs. 45/- each along with the current rent payable for each succeeding month. 2. The learned Munsif allowed the joint prayer for payment by instalment of the arrear rent due @Rs. 45/- per month along with the current rents for the succeeding months but the held that the landlord was not entitled to recover that part of the arrear rent as stood barred by the Law of limitation on the date of the institution of the suit. 3. The only question raised in the case is whether the landlord-petitioner can recover that part of the arrear rent which stood barred at that date of the institution of the suit. 4. On behalf of the opposite party reliance was placed on a Bench decision of this Court rendered in Raghunath Singh v. Messrs. Patel & Co. 65 CWN 1093 and a single Bench decision of this Court in Nripendra Mohan Ghose Chowdhury v. Tripti Rani Chakravorty ILR (l976) 2 Cal 359 where it was held that S. 17 of the West Bengal Premises Tenancy Act, 1956 does not require the tenant to deposit or pay any amount in respect of time barred arrear rent. The petitioner, on the other hand, relied on the Supreme Court decision in Khadi Gram Udyog Trust v. Shri Ram Chaudraji Virajman Mandir AIR 1978 SC 287 and a single Bench decision of this Court in Sohan Lal Rajgaria & ors v. Calcutta Chromotype Pvt. Ltd. & Anr. 1979 (1) CLJ 274. 5. The Supreme Court decision referred to above relates to a case under U.P. Urban Buildings (Regulations of Letting. Rent and Eviction) Act (13 of 1972). Section 20(4) of that Act conferred on the tenant the benefit of avoiding a decree for eviction in case he complied with the requirements of S. 20(4). If the tenant in such a case dues not within one month of the date of service on him of a notice of demand pay the rent for not less than 4 months. Section 20(4) of that Act conferred on the tenant the benefit of avoiding a decree for eviction in case he complied with the requirements of S. 20(4). If the tenant in such a case dues not within one month of the date of service on him of a notice of demand pay the rent for not less than 4 months. the landlord under S.20(2) of the Act would be entitled to an order of eviction. In that case the question arose whether the expression "entire amount of rent due" in S. 20(4) of the Act would include rent which had became time barred. Their Lordships of the Supreme court held that the law was well-settled that under the Law of Limitation it was the remedy which was barred but that did not extinguish the debt. It was further stated by Their Lordship that the Statute conferred a benefit on the tenant to avoid a decree for eviction by complying with the requirements of S. 20(4), that if he failed to avail himself of the opportunity and did not pay the rent for nut less than 4 months and within one month from the date of service upon him of a native of demand, the landlord under S. 20(2) would be entitled to an order of eviction, that still the tenant could avail himself of the protection by complying with the requirements of S. 20(4) but if he does not deposit the entire amount due the protection was no more available and that the words “entire amount of rent due” would include rent which became time-barred. In the case of Sohan Lal Rajgaria (supra) where similar question arose under S. 17 of the West Bengal Premises Tenancy Act 1956 the said Supreme Court decision was followed. That being the legal position the decisions in the cases of Raghunath Singh & Nripati Mohan Ghost Chowdhury (supra) arc no longer good law. In Krishna Chandra Bose v. Radharani Ghose & Ors. AIR 1954 Col, 102 = 57 CWN 801 which was a case governed by the West Bengal Premises Rent Control Act. That being the legal position the decisions in the cases of Raghunath Singh & Nripati Mohan Ghost Chowdhury (supra) arc no longer good law. In Krishna Chandra Bose v. Radharani Ghose & Ors. AIR 1954 Col, 102 = 57 CWN 801 which was a case governed by the West Bengal Premises Rent Control Act. 1950, K C. Chunder J. took the view that the tenant could not be compelled in law to pay any portion of such rent as is barred by limitation and the Court could not therefore, make an order for deposit of such time-barred arrear rent Under the West Bengal Premises Rent Control Act, 1950 that would be the legal position because there S. 14(4) was to be read subject to the provisions of S. 14(1) of that Act and S. 14(1) speaks of amount of rent "legally" payable by a tenant and which was in arrear. It is significant to note that even though in the said Act of 1950 the Statute used the words "the amount of rent legally payable" by the tenant which was in arrear in the West Bengal Premises tenancy act, 1956, the legislature thought it proper not to use the expression "legally payable." Instead the expression used in S. 17 was the tenant shall deposit in Court or with the Controller or pay to the landlord the amount calculated at the rate of rent at which it was last paid for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment is made." Thus, there was a deliberate departure made in this regard by the said Act of 1956 from what was there contained in the said Act of 1950. The omission of the words legally payable is significant in this regard. The omission of the words legally payable is significant in this regard. Un let the provisions of S. 17 of the Act of 1956 the tenant who made a default would be protected from eviction provided he complies with the provisions of S. 17(1) or S 17(2), as the case may be Accordingly, it is the clear intention of the legislature that in a case governed by the said Act of 1956 before the tenant may be entitled to such protection from eviction he is to put in the entire amount of arrear rent no matter whether a put of such rent has already become time-barred. As already pointed out the acknowledged legal position is that by reason of the provisions of the Limitation Act if a debt becomes time-barred only the remedy is n lost and the debt on that account is not extinguished. 6. In the Case of Nripendra' Mohan Ghose Chowdhury (supra) Chittatosh Mookerjee J. took the view that under sub-s. (2) and sub-s. (2A) of S. 17, the Court had no jurisdiction to direct the defendant to deposit amounts of rent which became barred by limitation at the date of the institution of the suit in question But no reason whatever was assigned by the learned Judge for so holding What moved the learned Judge was the fact that the learned Advocates for the party opposing the Rule in that case did not dispute the well established principle that under sub-s (1). (2) or (2A) time-barred rent need not be paid or deposited. 7. The case of Raghunath Singh (supra) was decided by Bachawat and Chatterjee JJ. Bachawat J. referred to the decision in Daya Devi v. Chapla where it was held that under sub-s. (1) of S. 17 of the West Bengal Premises Tenancy Act, the tenant was not bound to pay to the plaintiff the amount of rent which was assigned to him by the landlord as in such a case the plaintiff was not the landlord but the assignee of the landlord in respect of the arrear rent due. On the strength of the decision in Daya Devi's case (supra) Bachawat J. held that similarly the tenant was not required to deposit or pay any amount in respect of time-barred arrear rent which was not recoverable from him on account of the bar of limitation. On the strength of the decision in Daya Devi's case (supra) Bachawat J. held that similarly the tenant was not required to deposit or pay any amount in respect of time-barred arrear rent which was not recoverable from him on account of the bar of limitation. The reason behind the decision in Daya Devi's case (supra) is that arrears of rent would lose the character of arrears of rent as soon as there is an assignment of the arrear due made by the landlord to another person. Further, it was pointed out in Daya Devi's case (supra) that when the suit for ejectment was instituted not by the landlord to whom the arrears became due but by his assignee there was no obligation on the part of the tenant to deposit arrears which became due to the ex-landlord. Thus, to my mind, the analogy drawn by Bachawat J. is not warranted. Further, Bachawat J. took the view referred to above namely. that the tenant was not bound to pay or deposit that part of the arrear rent which stood barred by the law of limitation on the ground that the tenant was under no legal obligation to pay the time-barred arrear rent. In this connection it is significant to note that the words: "the amount of rent legally payable by the tenant and which is in arrears" which appeared in the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, were not there in the West Bengal Premises Tenancy Act, 1956. The words "legally payable" were omitted obviously with a purpose, The relevant words appearing in S. 17(1) are-"........................the tenant shall within one month of the service of the writ of summons on him, deposit in Court or pay to the landlord an amount calculated at the rate of rent at which it was last paid for the period for which the tenant may have made default Including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment is made.... ........ ............". Thus, according to the provisions of sub-s.(1) S.17 of the West Bengal Premises Tenancy Act, 1956 the tenant is to deposit or pay as the case may be an amount calculated at the rate of rent at which it was last paid and that in respect of the entire period for which the tenant may have made default. ........ ............". Thus, according to the provisions of sub-s.(1) S.17 of the West Bengal Premises Tenancy Act, 1956 the tenant is to deposit or pay as the case may be an amount calculated at the rate of rent at which it was last paid and that in respect of the entire period for which the tenant may have made default. The omission of the words "legally payable" is significant By said sub s. (1) of S. 17 a tenant is given protection against eviction. This appears from the caption : "When a tenant can get the benefit of protection against eviction." Taking all this into consideration the only conclusion that may be arrived at is that the legislature intend ed to afford of afford protection to the tenant only if he deposits or pays, as the case may be the entire amount of rent for the period for which the tenant may have made default. The whole or a part of such amount of arrear may be time barred and may not be recoverable by an action in a Court of law. The law of limitation only bars the remedy to enforce realisation of that part of the arrear rent which is time-barred but the debt does not on that account cease to exist. Bachawat J. further observed in the case of Raghunath Singh (supra) that the word "payable" was of somewhat vague import but in the context of the section it means "legally enforceable". After the omission of the words "legally payable" from the West Bengal Premises Tenancy Act, 1956 it would not perhaps be correct to say that the word "payable" appearing in sub-s. (2) of S.17 is synonymous with the words "legally enforceable". Bachawat J. referred in his judgment to the Case of Nasiban Bibi & ors. v. Parulbala Dutta 62 CWN 778. But that was a case where the question involved was whether the tenant was to deposit under sub-s. (1) of S. 17 of the West Bengal Premises Tenancy Act, that part of the arrear rent which became duo before the coming into force of the West Bengal Premises tenancy Act, 1956. v. Parulbala Dutta 62 CWN 778. But that was a case where the question involved was whether the tenant was to deposit under sub-s. (1) of S. 17 of the West Bengal Premises Tenancy Act, that part of the arrear rent which became duo before the coming into force of the West Bengal Premises tenancy Act, 1956. Though in the case of Nasiban Bibi (supra) Banerjee J. used the words "legally recoverable", it cannot be said, having regard to the facts of that case and the question that arose for determination, that Banerjee J. laid it down that it was only that part of the arrear rent which was legally recoverable, should be deposited or paid as the case may be. In Ganga Kumar v. Chintamoni Roy & ors 65 CWN 639 where the question arose whether all arrears, barred or not, should be taken into account in considering the arrear of rent referred to in Ss. 3 and 6 of the Calcutta Thika Tenancy Act, 1949, Chatterjee J construed the word "due" as meaning "payable" and held that it did not mean recoverable. The word “payable” was taken as meaning that which ought to be paid but was not paid. It does not mean “legally payable” But Chatterjee J. in the case of Raghunath Singh (supra) concurred with Bachawat J. in holding that the word “payable” appearing in S. 17(2) of the West Bengal Premises Tenancy Act would mean “legally payable” Further Chatterjee J. observed that the Rent Act in 1950 contained a corresponding provision and only “arrears legally payable” were to be determined and that if it were held that barred arrear rent could be realized the effect would be, arrears which could not be realized under the 1950 Act could now be realized under the 1956 Act. According to Chatterjee J. This would result in inconsistencies. If under the provisions of the said Act of 1956 arrear rent which stood barred could be realized there is no point in saying that such arrears were not recoverable under the said 1950 Act and that it would result in inconsistency if such arrears are permitted to be realised under the said Act of 1956. 8. If the Supreme Court decision referred to above were not there I would be bound by the said Bench decision in Raghunath Singh’s case (supra). 8. If the Supreme Court decision referred to above were not there I would be bound by the said Bench decision in Raghunath Singh’s case (supra). But having regard to the Supreme Court decision which is in consonance with the view taken by me as aforesaid I cannot but hold that the principle laid down in the said Supreme Court decision would make it obligatory on my part to hold that both under sub-s. (1) and sub-s. (2) of S. 17 of the West Bengal Premises Tenancy Act, 1956 the tenant would be bound to pay or deposit, as the case may be, the entire arrear rent, whether a part of it is time-barred or not. 9. In the circumstances the impugned order ought to be set aside and the entire arrear rent, even though a part of it would be time-barred, should be recoverable by the plaintiff-petitioner from the defendant-opposite party. 10. The Rule is accordingly made absolute with costs. The application under S. 17(2A) and the joint petition referred to above be disposed of by the Court below according to law. Rule made absolute.