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1984 DIGILAW 77 (CAL)

Paresh Chandra Chandra v. Krishna Chandra Ghoah

1984-03-08

S.N.SANYAL

body1984
Order In this revisional application the defendant has challenged the order of the learned Munsif, 1st Court, Alipore dated August 16, 1982 in Title Suit no. 482 of 1977. 2. The opposite party as plaintiff brought the said suit for eviction of the petitioner on the ground of default as also on other grounds. It was alleged that the defendant had defaulted in payment of rent from April 1976 to June 1977 at the rate Rs.100/- per month. The suit was decreed ex parte on March 21, 1980. On January 17, 1981 the petitioner filed an application under Order 9 Rule 13 CP Code for setting aside the exparte decree and the said application was registered as Misc. Case no. 9 of 1981. On a joint petition filed by the parties on June 20, 1981 the said miscellaneous case was allowed and the suit was restored. Thereafter, on July 23, 1981 the petitioner filed an application before the learned Munsif for nothing that the decision made on June 20, 1981 in the miscellaneous case will be a decision in the petition under Ss. 17(1) and 17(2A) of the West Bengal Premises Tenancy Act (hereinafter referred to as the Act). The said application has been rejected by the leaned Munsif by his order dated August 16, 1982. The learned Munsif held that the terms about the arrears of rent reached by the parties at the time of setting aside the exparte decree were not the points at order passed by the Court in the misc. case was in respect of the misc. case and that cannot be considered to be an order in the suit as at that time, the suit itself was not in existence. 3. Being aggrieved, the petitioner has challenged the said order in the present Rule. 4. Mr. Bhattacharjee, learned Advocate appearing in support of the Rule has drawn my attention to the petition of compromise filed in the misc. case and has argued that the joint petition should be considered to be an application under S. 17(2) of the Act, Mr. Bhattacharjee has further argued that the terms of compromise were made a part of the order setting aside the ex parte decree and restoring the suit. In such circumstances, the contention of Mr. case and has argued that the joint petition should be considered to be an application under S. 17(2) of the Act, Mr. Bhattacharjee has further argued that the terms of compromise were made a part of the order setting aside the ex parte decree and restoring the suit. In such circumstances, the contention of Mr. Bhattacharjee is that there was waiver of default on the part of the plaintiff and the plaintiff cannot now be permitted to urge the ground of default. The suit may proceed on other grounds. Mr. Bhattacharjee has referred to the case of Chotalal shaw alias Ramdas Chotalal v. Ramgolam Shaw & Ors. 80 CWN 36 and has argued that in view of the principles of law laid down in this decision it must be held that by being a party to the joint petition the plaintiff has waived the right. 5. Mr. Bagchi, learned Advocate for the opposite party, has contended that the joint petition for setting aside the ex parte decree was confined to the decision in the proceeding under Order 9 Rule 13 CP Code. The argument of Mr. Bagchi is that after the decree was made against the defendant, he ceased to be a tenant within the meaning of west Bengal Premises Tenancy Act and as such he had no right to make any application under section 17(2) of the Act till the suit was restored Mr. Bagchi submits that a proceeding under Order 9 Rule 13 CPC is an original proceeding independent of the suit. In support of his contention Mr. Bagchi has referred to the decision in Salil Kumar Banerjee v. Sailendra Nath Ghose & Ors., 63 CWN 883. In this case it was held that a proceeding under Order 9 Rule 13 CP Code is an original proceeding quite independent of the suit. It has been further held that the proceeding under Order 9 Rule 13 is not stage in the suit, nor a continuation of the suit itself. Referring to the cass of Surendra Chandra Bhowmick v. Pritimovee Gupta & Ors., 1983(1) CHN 387 Mr. Bagchi has argued the appearance of the defendant within the meaning of S. 17 of the Act would be on the date he appeared after the restoration of the suit Mr. Referring to the cass of Surendra Chandra Bhowmick v. Pritimovee Gupta & Ors., 1983(1) CHN 387 Mr. Bagchi has argued the appearance of the defendant within the meaning of S. 17 of the Act would be on the date he appeared after the restoration of the suit Mr. Bagchi thus argues that the terms of the compromise were affective for the purpose of determination of the application under Order 9 Rule 13 CP Code and no way the said terms would terms would be a determination under S. 17(2) and 17(2A)(b) of the Act. Mr. Bagchi has also referred to a Special Bench decision of this Court in Sriniwas Sureka V. Madanlal Sekhsaria & Ors. AIR 1973 Calcutta 13. In this decision the question arose regarding the liability of the tenant to make payment under S. 17(1) of the Act after the suit was decreed and the appeal preferred by the tenant was pending. It has been held that the statute provides statutory definition of tenant and it includes a person who is in possession after termination of his tenancy but only until a decree or order for eviction is not made by a competent court. Once such a decree is made by a court of competent jurisdiction, the statutory tenancy comes to an end. The liability under S. 17(1) of the Act is a liability of the tenant, as defined in clause (h) of S. 2 of the Act. Thus, when ex parte decree was made against the petitioner and the proceeding under Order 9 rule 13 CP Court was pending, the petitioner was not a tenant and the provisions of S. 17 of the Act were not applicable to him. The compromise arrived at in the misc. case was confined to that case only and could not be treated to be a compromise in the suit which was subsequently revived. 6. After hearing the learned advocates and considering the materials on record, I am of opinion that the contention of Mr. Bagchi should be accepted and the Rule should be discharged. After the ex parte decree was passed against the defendant on March 21, 1980 he cased to be a tenant within the meaning of S. 2(h) of the Act. The petitioner filed an application under Order 9 Rule 13 CP Code for setting aside the ex parte decree. Bagchi should be accepted and the Rule should be discharged. After the ex parte decree was passed against the defendant on March 21, 1980 he cased to be a tenant within the meaning of S. 2(h) of the Act. The petitioner filed an application under Order 9 Rule 13 CP Code for setting aside the ex parte decree. The proceeding under Order 9 Rule 13 of the CP Code is a proceeding independent of the suit and it is not a proceeding at any of the suit and it is not also a continuation of the suit. The compromise petition on which the ex parte decree was set aside, was in respect of the proceeding under Order 9 rule 13 CP Code. The applicability of S. 17 will only arise after the ex parte decree was set aside and the suit was restored. The question of the appearance of the defendant and the time limit for filing application under S. 17 would thus arise when a suit is pending. The petition of compromise would only relate to the proceeding under Order 9 Rule 13 CP Code. After restoration of the suit the provisions of S. 17 of the Act became applicable to the suit. In such circumstances, the petitioner ought to have come within the prescribed period with a proper application in this respect for determination of the amount payable after adjustment of the sum already paid. 7. In the application filed on July 23, 1981 the petitioner submitted that the petition under Ss. 17(1) and 17(2A) of the Act filed in the suit may be disposed of in terms of the compromise petition filed in Misc. Case no. 9 of 1981. It was submitted by the learned advocates of both sides that no application was filed by the petitioner in the suit under S. 17(1) and 17(2A) of the Act. Mr. Bhattacharjee submits that by this application which was not properly drafted, the petitioner wanted to say that the compromise petition filed in the misc. case may be treated as an application under Ss. 17(1) and 17(2A) and may be disposed of in accordance with the terms contained in the compromise petition. As indicated earlier, the said application cannot be considered to be an application under S. 17 of the Act as no suit was pending at that time. case may be treated as an application under Ss. 17(1) and 17(2A) and may be disposed of in accordance with the terms contained in the compromise petition. As indicated earlier, the said application cannot be considered to be an application under S. 17 of the Act as no suit was pending at that time. The learned Munsif has thus rightly rejected the prayer of the petitioner by the order challenged in this revision case. 8. The decision in 80 CWN 36 deals with the question of waiver of the right to file the application under S. 17(3) of the west Bengal Premises Tenancy Act. In this case it was held that the right under S. 17(3) of the Act can be waived and such waived can be either express or implied from the conduct of the Plaintiff. I express no opinion as in the present Rule there does not arise any question of waiver of any right under S. 17(3) of the Act. In the result, the revisional application fails and the Rule is discharged Ad interim order, if any, is vacated. There will be no order as to costs. Let the records be sent down forthwith. Rule discharged.