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1984 DIGILAW 108 (CAL)

Nanda Dulal Dutta v. Ardhendu Sekhar Rakshit

1984-03-28

MANASH NATH ROY

body1984
JUDGMENT Manash Nath Roy, J. 1. By this application for a Rule under Section 115 of the Code of Civil Procedure, the tenant defendant petitioner has sought to impeach Order No. 49 dated the 23.5.1983 made in title Suit No. 68 of 1981, by the learned Munsif, First Court, Tamluk. The application was opposed by the opposite party on filing caveat and Mr. Mitra is appearing for him. 2. Title Suit No. 68 of 1981 was instituted by the plaintiff opposite party for a decree for recovery of khas possession of suit premises as described in schedule 'Ka' to the plaint, after eviction the defendant petitioner from the same and also for a decree for recovery of appear of rents in terms of schedule 'Kha' to the plaint. There was also prayers for a decree of permanent injunction, restraining the defendant petitioner from causing any damage to the premises in question, apart from claiming means profits and other reliefs. 3. In the suit, the defendant petitioner entered appearance on 10.4.1981 and he has stated to have deposited all arrears of rent on the 11.4.1981, in the court of the learned Munsif concerned under section 17(1) of the West Bengal Premises Tenancy Act, 1956. He has also stated to be depositing the current rents month by month in terms of the statue. The defendant petitioner further claimed the suit to be not maintainable and it was also claimed that the suit was not a bona fide one and there was dispute relationship of landlord and tenant. 4. It would appear that on or about 9.4.1983 the plaintiff opposite party filed an application under section 17(3) of the Act, for striking out the defence of the defendant petitioner, claiming that on entering appearance in the suit, he had not deposited the monthly rent duty and the rents, which were deposited in the name of the court or in other words not in the name of the landlord, were invalid deposits. Such claim was contested by the defendant petitioner and on the 28.5.1983 the defendant petitioner had need an application under section 151 of the Code of Civil Procedure, praying inter alia for acceptance of the deposits already made by him, as valid deposits under section 17(1) of the Act. Such claim was contested by the defendant petitioner and on the 28.5.1983 the defendant petitioner had need an application under section 151 of the Code of Civil Procedure, praying inter alia for acceptance of the deposits already made by him, as valid deposits under section 17(1) of the Act. Such proceedings was contested by the plaintiff opposite party and ultimately, by the impugned order, the learned Munsif found that since the deposit were not duly made, so section 17(3) application was maintainable and as such, he dismissed the application under section 151 of the Code of Civil Procedure. 5. It would appear on the basis of the available materials, the learned Munsif formulated two points for consideration, viz. (1) whether there exists bona fide dispute as to relationship of landlord and tenant between the plaintiff and the defendant, (2) whether the court has only power the accept the rent at this stage, by removing the defects in the concerned challan under section 151 Code of Civil Procedure. On a consideration of the statements as available before him and that too from the pleadings, the learned Court below formed, the opinion that in the written statement the defendant petitioner had never specifically disputed the relationship of landlord and tenant, rather he admitted that the plaintiff opposite party, was his landlord and he continued to pay through him. On such, the learned Munsif, further observed that there was no bona fide dispute as to the landlord and tenant. 6. Before me, Mr. Ghosh appearing in support of the application contended firstly, that on a reading of section 17(1) of the Act, it would appear that there is no mention that rents will have to be deposited with the landlord and such rent it deposited with the Court, would not be a valid deposit. The determination as was made by the learned Munsif was wrong and as such, he also acted illegally and with material irregularity in allowing section 17(3) application, as was filed by the plaintiff opposite party. To supplement such submissions Mr. Ghosh also stated that the same would also be the resold, if the rules framed under the said Act are also looked into. To supplement such submissions Mr. Ghosh also stated that the same would also be the resold, if the rules framed under the said Act are also looked into. It was then submitted by him that the Court in the instant case, had the power to have the challan corrected under section 151 of the Code of Civil Procedure and then to treat the dispute as was sough to be raised, as valid. Those submissions were contradicted by Mr. Mitra and while on the first submissions of Mr. Ghosh, reference was made by Mr. Mitra to the case Sailendra Nath vs. Ashutosh Bhattacharjee, 1982(2) CLJ 346 , wherein it has been observed that the words deposits in Court or with the Rent Controller of pay to the plaintiff, taken together, would mean that the deposit in Court or with the rent controller must be in the name of the plaintiff. It has also been observed that deposits cannot be in the name of Court and such deposits when made should be construed as invalid deposits, within the meaning of section 17(1) of the Act. In fact, the learned Munsif had also referred to and relied on this judgment. 7. Considering the submissions as put forward by the learned advocates before me, I do not find any justification in disagreeing with the observations as made in the case as referred to hereinbefore and as cited at the Bar. Thus, I find that the first submission of Mr. Ghosh was not of much substance. 8. Then, Mr. Ghosh on a reference to the Special Bench determination of this Court reported in Arun Brothers vs. Sakti Prosanna Chatterjee, 1982(2) CLJ 167 , contended that from the written statement as flied by the defendant petitioner, it would appear that dispute was raised and there would be no estoppels in placing such dispute which was sought to be raised now. To counter act such submissions Mr. Mitra referred to a petition of the defendant petitioner dated 20.5.1983 and so also one dated 21.6.1983 wherefrom or on a consideration of which, according to him there was no other way but to hold that the stand as taken now in the concerned application under Section 151 of the Code by the defendant petitioner, was not bona fide, Mr. Mitra of course used the word mala fide, to which Mr. Mitra of course used the word mala fide, to which Mr. Ghosh objected, but one thing is certain that from the intrinsic evidence as available from tile records which were before the learned Munsif, there was no doubt that there was admission of landlord and tenant relationship by and between the parties and as such, the observations of the Special Bench, in my view, would not be of any help or assistance to Mr. Ghosh's, client. Mr. Mitra further referenced to the observations of the Supreme Court in the Case of Cotton Corporation of India Ltd. vs. United Industrial Bank Ltd., AIR 1983 SC 1279, where it has been specifically observed, that it must be remembered that inherent power of the Court cannot be invoked to nullify or stultify the statutory provision of section 17(1) and (2). Even that gives some right to a tenant in a proceeding for ejectment, but applying the tests of the Supreme Court decision as indicated hereinbefore, it must be held that no step should be allowed to be taken or any determination made under section 151 of the Code of Civil procedure, which would intimately nullify the effect of the provisions of the Statute. Such being the position, this application is rejected. There will be no order as to costs.