G. A. Peters v. Nagendra Nath Datta — 1979 DIGILAW 324 (CAL)

Judgment : This Rule is directed against Order No. 15 dated May 15, 1979, passed by the learned 7th Judge, City Civil Court, Calcutta in Ejectment Suit No.774 of 1978. It appears that the plaintiff opposite party Nagendra Nath Dutta instituted a suit for ejectment against one Mrs. G.A. Peters and the said suit was numbered as Ejectment Suit No. 774 of 1978. Subsequently the present petitioners Mrs. G.A. Peters made an application before the court, inter alia stating therein that Mr. G.A. Peters was never a tenant but she, namely, Mrs. G.A. Peters was the tenant of the suit premises but she has not been impleaded in the said Ejectment Suit was not maintainable. It appears that the plaintiff thereafter made an application for amendment of plaint under Order 6 Rule 17 of the Civil Procedure and the said application for amendment was allowed and Mrs. G.A. peters was impleaded as the defendant in the said suit instead of Mr. G.A. peters. It appears that the said Mrs. G.A. peters also filed a written statement in the said suit, by the impugned order, the learned Judge allowed an application made by the plaintiff landlord under S. 17(3) of the West Bengal Premises Tenancy Act, 1956. The learned judge held the defendant tenant Mrs. G.A. Peters not having filed any application under S. 17(1) or S. 17(2) of the West Bengal Premises Tenancy Act, and no rent having been deposited by her in compliance with the provisions of S. 17(1) of the West Bengal Premises Tenancy Act, the said application under S. 17(3) should be allowed. It appears that in the petition of objection made by the defendant tenant Mrs. G.A. peters to the said application under S. 17(3) of the plaintiff landlord, the defendant tenant contended that the plaintiff had collected rents form the defendant up to and including August, 1976 by granting rent receipts. But thereafter, the plaintiff stopped collecting rents and rents from September to December, 1976 were sent by money order after refusal of personal tender, month by month in time, but the plaintiff landlord refused to accept the same. The plaintiff also did not allow or afford reasonable facilities to the defendant to pay her rents under the provisions of S. 67 of the Indian Contract Act. The plaintiff also did not allow or afford reasonable facilities to the defendant to pay her rents under the provisions of S. 67 of the Indian Contract Act. The defendant also contended in the said petition of objection that the plaintiff had wrongfully and illegally dispossessed the defendant from the beneficial use and occupation of her tenancy by not carrying out essential and necessary repairs despite separate demands and requests for the same and the defendant fell seriously ill and had to take temporary shelter in St. Marry's home at 23, Marquis Street, Calcutta-16. Accordingly the defendant was entitled to suspend the payment of rents until and unless the room was made habitable. Some other objections were also made in the said petition of objection but it is not necessary to refer to all such objections for the purpose of disposal of this Rule. 2. Mr. Bhattarcharjee, the learned Counsel appearing for the tenant petitioner, contended that the learned Judge misconceived the provisions of Ss. 17(3) of the West Bengal Premises Tenancy Act and proceeded erroneously on the footing that as no application was made under S. 17(1) or 17(2) of the West Bengal Premises Tenancy Act by the defendant tenant the petition of objection under S. 17(3) of the west Bengal premises tenancy act was not to be considered on merit. Mr. Bhattacharjee contended that if an application under S. 17(3) is made by a landlord the Court is to decide as to whether the tenant had made a default in depositing the arrears of rent together with statutory interest and also the current rents as continued in the provisions of S. 17(1) and/or the tenant had failed to comply with the direction contained in the order made under S. 17(2) of the said Act. Mr. Bhattacharjee contended that if under the law, the tenant was under no obligation to pay or deposit the rent in respect of the disputed premises, there was no question of contravening the provisions of S. 17(1) of the West Bengal Premises Tenancy Act and if the court is satisfied on consideration of the petition of objection made by the tenant that he was justified in not making any deposit in accordance with the provisions of S. 17(1) of the West Bengal Premises Tenancy Act, the application of the landlord under S. 17(3) is liable to be reject by the learned Judge. Mr. Mr. Bhattacharjee contended that consideration of the application under S.17(3) of the act on merit is not dependant upon tenant’s making an application under S. 17(1) or 17(2) of the west Bengal premises tenancy act. In this connection, Mr. Bhattarcharjee referred to a bedch decision of this Court made in the case of Trithapati Sen. v. Paresh Nath Sen reported in ILR 1967(1) Calcutta at page 449. In the said case the tenant contended that there was no relationship of landlord and tenant between the parties and on that contention the tenant did not make any deposit of rent in accordance with the provisions of S. 17(1) of the West Bengal Premises Tenancy Act. The tenant also did not make any application under S. 17(2) of the act by raising a dispute as to the rent payable by the said tenant. This court held in the said decision that the question of relationship of landlord and tenant strikes at the root and in such circumstances even if no application under S. 17(2) is made by the tenant, the objection of the tenant to the application of the landlord under S. 17(3) of the act has to be considered on merit. Relying on the said decision Mr. Bhattacharjee contended that it is thus apparent that a tenant is not precluded from raising objection against an application made under S. 17(3) of the Act simply because the tenant had not raised any dispute as to the quantum of rent payable to the landlord in an application under S.17(2) of the said Act. In my view, the aforesaid contention of Mr. Bhattacharjee is quite justified. It cannot be contended that simply because the tenant did not make any application under S. 17(2) raising a dispute as to the quantum of rent payable to the landlord, the said tenant is precluded from raising objections as to the maintainability of an application under S. 17(3) by the landlord. Bhattacharjee is quite justified. It cannot be contended that simply because the tenant did not make any application under S. 17(2) raising a dispute as to the quantum of rent payable to the landlord, the said tenant is precluded from raising objections as to the maintainability of an application under S. 17(3) by the landlord. In my view, the Court is under an obligation to dispute of the application under S. 17(3) on consideration of the objection, if any, to such application and if the Court comes to a finding that the provisions of S. 17(1) or an order passed under S.17(2) or the west Bengal premises tenancy act had not been complied with, then and then only the Court can pass an order striking out the defence against delivery of possession under S. 17(3) of the act. In an appropriate case, even without making an application under S. 17(2) of the West Bengal Premises Tenancy Act, a tenant may satisfy the court that there was no contravention of the provisions of S. 17(1) of the Act and as such the application under S.17(3) was liable to be dismissed. Mr. Bhattacharjee next contended that a tenant is entitled to suspension of rent under the provisions of S. 108 of the Transfer of Property Act. Mr. Bhattacharjee contended that in the instant case, clauses (b) and (c) of S. 108 of the Transfer of Property Act, were attracted and the tenant was entitled to suspension of rent and as such there was no question of depositing any arrear of rent together with statutory interest according to the provisions of S. 17(1) of West Bengal Premises Tenancy Act and thereafter to go on depositing at the rate of rent last paid month by month. For this contention, Mr. Bhattacharjee referred to the decision of this Courts made in the case of Nirmalendu Basu v. Smt. Nilima Chatterjee reported in AIR 1975 Calcutta at page 418. In the said decision R.N. Bhattacharya, J. on consideration of the facts of the said case held that there was justification for the tenant to suspend the payment of rent to the landlord. Accordingly, Mr. Bhattacharjee contended that the impugned order is liable to be set aside. 3. Mr. In the said decision R.N. Bhattacharya, J. on consideration of the facts of the said case held that there was justification for the tenant to suspend the payment of rent to the landlord. Accordingly, Mr. Bhattacharjee contended that the impugned order is liable to be set aside. 3. Mr. Dutt the learned Counsel appearing for the landlord opposite party, however, contended that mere failure on the part of the landlord to carry out essential repairs does not entitle the tenant to suspend rent and for this proposition. Mr. Dutt referred to a bench decision of this Court made in the case National Motor Industries Ltd. v. Birendra Nath Mitra reported in AIR 1957 Calcutta at page 232. K.C. Dasgupta, J. (as his Lordship then was) speaking for the Court held in the said decision that where the landlord fails to carry out the repairs coming under S. 38(3) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, the tenant is not entitled to suspension of rent. The general law does not give any such remedy. Mr. Dutt also referred to another decision of this court made in the case of Jatindra Kumar Das v. Dhiraj Lal Vajlal Kanaki reported in AIR 1957 Calcutta at page 123. D.K. Sen, J. held in the said case that under S.108 of the Transfer of Property Act, a tenant is not entitled to suspend rent on the ground of not effecting repairs until and unless under the terms of contract between the patties the landlord is under an obligation to effect such repairs. Mr. Dutt also referred to another Bench decision of this court made in the case of Stewart & Co. Ltd. v. Mackertich reported in AIR 1963 Calcutta at page 138. It was in the said decision that in absence of covenant, the lessor is not bound to effect repair of the premises and the lessee is not entitled to suspend the payment of rent for non-repairing the premises. It was also held that the onus of proving the existence of such convenant of repairing is on the tenant. Relying to the aforesaid decisions, Mr. It was also held that the onus of proving the existence of such convenant of repairing is on the tenant. Relying to the aforesaid decisions, Mr. Dutt contended that the plea of suspension of rent as made by the tenant in the instant case is wholly unacceptable and the tenant was under an obligation to deposit all arrears of rent together with statutory interest within the specified time and thereafter to go on depositing at the rate of rent last paid within the specified time and accordance with the provisions of S. 17(1) of the West Bengal Premises Tenancy Act and admittedly, the tenant not having made such payments the impugned order allowing the application under S. 17(3) of the West Bengal Premises Tenancy Act is perfectly legal and there is no question of interference by this Court in revision. 4. After giving my anxious consideration to the respective contentions made by the learned counsels for the parties, it appears to me that the provisions of S. 17(1) of the West Bengal Premises Tenancy Act consists of two parts the first part provides for deposit of all arrears of rent in respect of the suit premises together with statutory interest within the stipulated period mentioned in the said S. 17(1) and the second part of s.17(1) provides that apart form depositing all arrears of rent together with statutory interest within the stipulated period, the tenant is also under obligation to go on depositing at the rate of rent last paid within the stipulated period month by month. The said provision of S. 17(1) is, however, subject to any order to be passed under S. 17(2) of the west Bengal premises tenancy act and under S. 17(2) of the West Bengal Premises Tenancy Act a tenant is entitled to raise a bona fide dispute as to the rate of rent payable to a landlord within the specified time and if such an application is made by the tenant, the court is to decide the said contention of the tenant and to adjudicate as to the quantum of rent to be payable by the tenancy to the landlord. In the instant case, it is not necessary to decide at this stage as to whether in the facts and circumstances of the case, the tenant had really any justification to suspend the payment of rent because even it is assumed that the tenant was justified in suspending the rent, the tenant may have a justification in not depositing any arrear of rent under the first part of S. 17(1) of the West Bengal Premises Tenancy Act. But under the second part of the said Act, the tenant is under an obligation to go on depositing month by month at the rate of last paid. In my view, until and unless a tenancy raises a dispute that he is under no obligation to make payment even for the current months in an application under S. 17(2), and gets an adjudication to that effect the tenant is under an obligation to go on depositing at the rate of rent last paid for the current months. The Legislature has given an opportunity to the tenant to raise such objection under S. 17(2) and if a tenant does not want to avail such opportunity, he is to comply with the mandatory provisions of S. 17(1) and by going so, he is required to go on depositing at the rate of rent last paid month by month within the stipulated time. It is to be noted that a landlord, in certain circumstances, may not be entitled to recover all the arrears of rent and the current rents so deposited by the tenant in terms of the provisions of S. 17(1) of the Act but simply because a landlord is not entitled to recover such sums from the tenant, a tenant is not absolved form the obligation to deposit the sums in terms of S. 17(1) of the act. The Legislature has thought it expedient that in order to avail defences against delivery of possession under the Act, a tenant is required to comply with the mandatory provisions of S. 17(1) but to obviate unnecessary hardship on the part of a tenant, provision for raising bona fide dispute as to quantum of rent payable to a landlord under S. 17(2) has been made and accordingly S. 17(1) has been made subject to S. 17(2) of the Act. Such obligation to deposit the arrears of rent and to go on depositing at the rate of rent last paid, month by month will not raise if the defendant contends that he is not a 'tenant' in respect of the suit premises because obligation to deposit arrear rents and sums equivalent to rent month by month is an obligation of a 'tenant' and if somebody is not a 'tenant' under the plaintiff in respect of the suit premises there is no question of making any payment whatsoever by way of arrears of rent or by way of current rent in terms of the provisions of S.17(1). The existence of relationship of landlord and tenant, in such circumstances strikes at the root and precisely for this purpose the Division Bench in the said case of Trirthapati Sen held that where such dispute as to relationship of landlord and tenant arose, an alleged tenant is entitled to raise the said objection even at the hearing of the application under S. 17(3) although he had not raised such objection under S. 17(2). But where a defendant admits that he is a 'tenant' under the plaintiff in respect of the suit premises, the provisions of Ss. 17(1) and 17(2) clearly stare at his face and such tenant, if he does not intend to raise any dispute under S. 17(2) and to get an adjudication form the Court on such dispute, the said tenant is bound to comply with the provisions of S. 17(1). In the instant case admittedly the tenant had not deposited an amount equivalent to the rate of rent last paid month by month although under the second part of S. 17(1), the tenant was under an obligation to make such deposits. Hence, even assuming that there were no arrears of rent payable by the tenant on the grounds of suspension of rent, as contended by him under the first part of S.17(1) of the Act, the tenant is under an obligation to go on depositing month by month at the rate of rent last paid. The expression used in the second part of S. 17(1) is not the rent but a sum equivalent to the rent. In the aforesaid circumstance, the impugned order striking out defence under S. 17(3) is quite justified and no interference is called for in revision. The expression used in the second part of S. 17(1) is not the rent but a sum equivalent to the rent. In the aforesaid circumstance, the impugned order striking out defence under S. 17(3) is quite justified and no interference is called for in revision. The Rule, therefore, fails and is discharged but I make no order as to costs. 5. An application for caveat was filed by the plaintiff landlord and the said application was also taken up for hearing along with the Civil Rule. In view of the order passed in Civil Rule, no further order need be passed in the said caveat application and said application is also disposed of accordingly. Rule discharged.