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1984 DIGILAW 208 (CAL)

Ramkrishna Dewan v. Kanailal Mukherjee

1984-06-15

S.N.SANYAL

body1984
ORDER In this revisional application the petitioner Ramkrishna Dewan has challenged the order of the learned Munsif, First Court, Baruipur dated June 23, 1981 in Title Suit no. 292 of 1979 rejecting the petitioner's application under S 17(2) of the West Bengal Premises Tenancy Act (hereinafter referred to as the Act). The opposite parties instituted the suit on September 14, 1979 for eviction on the ground that the petitioner, who was a monthly tenant in respect of the suit premises on a monthly rent of Rs. 55/-, defaulted in payment of rent from December 1976 Summons was served upon the petitioner on December 18, 1979. The petitioner entered appearance on January 7, 1980 and filed an application under S 17(1) of the Act. He also filed another application under S 17(2A) of the Act. The petitioner filed the application under S 17(2) of the Act on June 13, 1980. The petitioner's applications under S 17(2) and 17(2A) were taken up for hearing on June 16, 1981 and evidence was recorded on June 17, 1981. Thereafter on June 18, 1981 the petitioner did not press the application under S 17(2) which was filed on June 13, 1980. The petitioner filed an application for amendment of the petition under S 17(2A) dated January 7, 1980 with a prayer that the said application might be treated as an application under S 17(2) of the Act. The said prayer was allowed. Thereafter by order dated June 23, 1981 the learned Munsif held that the application under S 17(2) of the Act was not maintainable as the petitioner had not deposited the balance amount of the admitted arrears of rent upto the date of appearance in the suit. 2. The petitioner has challenged the said order in the present revision case. 3. Mr. Basu, learned Advocate for the petitioner, has argued that the learned Munsif acted illegally and with material irregularity in not deciding the application under S 17(2) of the Act. In this application the petitioner did not admit any rent to be due. He raised the plea that he had paid Rs. 600/- and the same should be adjusted. The contention of Mr. Basu is that the petitioner was not given any opportunity to prove that he had advanced a sum of Rs. 600/- and he was entitled to adjustment of the same against rent Mr. He raised the plea that he had paid Rs. 600/- and the same should be adjusted. The contention of Mr. Basu is that the petitioner was not given any opportunity to prove that he had advanced a sum of Rs. 600/- and he was entitled to adjustment of the same against rent Mr. Basu argues that the learned Munsif should have decided the arrears of rent after adjustment of the sum of Rs. 600/- and he should have fixed a date for payment of the amount by the petitioner in support of his contention Mr. Basu has referred to Bhagaban Shaw v. Sm Simmi Goyal 1978(2) CLJ 254 . In this decision it has been held that if a dispute as to the amount payable is raised by the tenant under sub-s. (2), there is no further scope for any steps being taken under the first part of sub-s (1). In making the application under sub-s.(2) the tenant is required to deposit or pay the amount admitted by him to be due from him. Mr. Basu has also referred to Mahesh Kumar Agarwalla v. Sm. Saraswati Dey 1979(2) CLJ 292 . In this case it has been held that under S. 17(2) of the Act a tenant is under an obligation to deposit the arrears of rent and a defendant disputing to be a tenant under the plaintiff and not adjudged to be a tenant under the plaintiff by the Court has no obligation to deposit arrears of rent. The question of payment of admitted arrears of rent will arise only when there is no dispute as to the quantum of rent payable to the plaintiff an admitted landlord by the defendant an admitted tenant because dispute only as to the quantum of rent is also a dispute within the meaning of S 17(2) of the Act. It has been further held that as the learned Munsif has not yet decided about the bonafide of the dispute as to the relationship of landlord and tenant but has rejected the application simply on the ground of default of payment of admitted arrears of rent, the impugned order should be set aside. 4. Mr. Basu argues that the tenant is liable to deposit in Court only the amount admitted by him to be due from him along with his application under S 17(2). In the instant case, Mr. 4. Mr. Basu argues that the tenant is liable to deposit in Court only the amount admitted by him to be due from him along with his application under S 17(2). In the instant case, Mr. Basu argues, as no amount has been admitted by the petitioner to be due, there was no question of deposit of any amount along with the application. 5. Mr. Baksi, learned Advocate for the opposite parties, argues that in the application under S. 17(2) the petitioner did not state that he had paid any amount as rent. His only contention was that he had advanced a sum of Rs. 600/- and the only question that the Court was to decide was about the payment of the said sum of Rs. 600/- Mr. Baksi argues that except the sum of Rs. 600/- the rest of arrear was admitted and as such the petitioner was required to deposit the said amount along with the application. As no such deposit was made, the learned Munsif was correct in rejecting the application on the ground that it was not maintainable. 6. According to S. 17(2) of the Act, if in any suit or proceeding referred to in sub s (1) then is any dispute as to the amount of rent payable by the tenant, the tenant shall, within the time specified in sub-s. (1), deposit in Court the amount admitted by him to be due from him together with an application to the Court for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by the application for determination of the rent payable. In the instant case, the defendant has made an application under S 17(2) for determination of the amount payable. The question is whether the tenant admitted any amount to be due from him. The amount that is required to be deposited with the application is the amount which the tenant admits to be due from him. The admitted amount must appear in the application itself and not the amount which the tenant may admit afterwards in evidence. It is not also the amount which the Court may subsequently find to be due from the tenant. In the application under S. 17(2), which was subsequently allowed to be treated as application under S 17(2), the tenant denied the plaintiff's claim about the rent due. It is not also the amount which the Court may subsequently find to be due from the tenant. In the application under S. 17(2), which was subsequently allowed to be treated as application under S 17(2), the tenant denied the plaintiff's claim about the rent due. The tenant admitted the monthly rent but he contended that he had paid Rs. 600/- for repairs of the room and the said sum had not been adjusted against rent. The tenant also prayed for installments in the said application. It will be necessary to decide from the recitals of the application whether the tenant admitted any sum to be due from him. It will not be correct to hold the application under S. 17(2) to be not maintainable after coming to a conclusion, on consideration of the materials on record, that the tenant was liable to pay rent which he had not deposited along with the application. The learned Munsif has thus acted illegally and with material irregularity in rejecting the application on the ground that it was not maintainable after having considered the application on merits on taking into account the evidence adduced by the parties. If there be no admission by the tenant in the application under S 17(2) of any amount to be due from him the application cannot be held to be not maintainable upon the finding arrived at afterwards that the tenant was liable to pay the arrears of rent which he had not deposited along with the application. In that case the Court has to determine the amount of rent payable by the tenant and fix a time therefor for payment. The revisional application thus succeeds and the Rule is made absolute. The order of the learned Munsif is set aside. The learned Munsif is directed to dispose of the petitioner's application under S 17(2) of the Act in accordance with law as early as possible. Let the records be sent below forthwith. I make no order as to costs. Rule made absolute.