Nawal Kishore Agarwalla v. Samarendra Nath Shaw — 1987 DIGILAW 324 (CAL)

Judgment : The plaintiff filed an ejectment suit against the petitioner for his eviction from the suit premises, inter alia, on the ground of default in payment of rent since June, 1976 and also on the ground of damages under Clauses (m), (o) and (p) of section 108 of the Transfer of Property Act. In the said suit the defendant-petitioner filed an application under section 17(2) of the West Bengal Premises Tenancy Act, 1956 denying and disputing the allegations of default and damages as made in the plaint and also challenging the relationship of landlord and tenant between the parties. The learned Judge, 1st Bench, City Civil Court, Calcutta by the impugned order dated 24th January, 1987 held that the relationship of landlord and tenant between the parties existed and disposed of the said application under section 17(2) holding that the petitioner was a defaulter in payment of rent since June, 1976, as the deposits made in names of the trust estate and after the institution of the suit in the name of Samarendra Nath Saha and others, were invalid deposits and directed the defendant petitioner to deposit a sum of Rs. 16,123 73 p. towards the arrears of rent from June, 1976 to January, 1981 together with the statutory interest thereon with in two months from the date of such order. Against the said order the petitioner has come before this Court and obtained this Rule. It is submitted by Mr. Das Gupta that the finding of the said Court that the deposits as mentioned above were all invalid, cannot be sustained in law, inasmuch as the rents upto June, 1976 were being received by the trustees on behalf of the trust estate and as such his client deposited rent with the Rent Controller in the names of trust estate. Mr. Das Gupta further submitted that the rent so deposited with Rent Controller and could be withdrawn by the plaintiffs, as the petitioner did not violate the provision of section 22(2) of the West Bengal Premises Tenancy Act, 1956 by making any false and or incorrect statement with a mala fide intention depriving the opposite parties from withdrawing the amount so deposited. 2. In support of his said contention Mr. Das Gupta referred to the decision of the Supreme Court in (1) Kshhardeo Singhania v. Purushottamdas, AIR 1983 SC 354 . 2. In support of his said contention Mr. Das Gupta referred to the decision of the Supreme Court in (1) Kshhardeo Singhania v. Purushottamdas, AIR 1983 SC 354 . So far as the deposits with the Court subsequent to the institution of the suit are concerned, according to Mr. Das Gupta, the said deposits are valid deposits, inasmuch as the said deposits are being made in the name of one of the plaintiffs at least and the said deposits could be withdrawn by one of the plaintiffs namely, the plaintiff No. 1, which would tentamount to be withdrawl by the others as well. Mr. Das Gupta also referred to the decision in (2) C. Rewashankar v. V. J. Thakkar, 89 CWN 1067 in support of his said contention. 3. Mr. Dutta, appearing on behalf of the opposite party, however, submitted that since the deposits with the Rent Controller were not being made in the name of opposite parties, the opposite parties could not withdraw the said amount and it cannot be said that the petitioner had not violated the provisions of section 22(2) of the West Bengal Premises Tenancy Act as he knew that he was inducted by the trustees as a tenant. Mr. Dutta in support of his contention referred to the decision of this Court in AIR 1982 Calcutta 505. So far as the decision in 89 CWN 1067 is concerned according to Mr. Dutta, the said decision is distinguisable on facts and the principle of law as hid down therein cannot apply to the facts' of the present case. 4. In the case of (3) In re: Purshattamdas Bhiwaniwala, AIR 1982 Calcutta, 505, Pradyat Kumar Banerjee, J, (as His Lordship then was) held, inter alia, that the deposits made with the Rent Controller in the name of a firm were not a valid deposits as the firm was not in existence at the relevant time, and referred to the earlier decision of this Court in the case of (4) Bengal Tent Factories Ltd. v. Amiya Provo Das Gupta 64 CWN 342. Unfortunately the said decision of this Court in AIR 1982 Calcutta 505 was over ruled by the Supreme Court in its decision in AIR 1983 SC 354 in appeal as the Supreme Court allowed the appeal bolding, inter alia, that the deposits made with the Rent Controller were valid deposits and could be withdrawn by the plaintiff. No doubt, the Supreme Court in allowing the said appeal did not give any reasoning but in view of Article 141 of the Constitution of India, the judgment of the Supreme Court, even if it is an obiter is binding upon all Courts. So far as the decision in 89 CWN 1067 is concerned the present case stands on a better footing. In that case the deposits were made in the name of one of the plaintiffs only and a prayer was made in the suit for inserting, the names of other plaintiffs as there were in several other plaintiffs. The said prayer was rejected by the trial Court. M.M. Dutt, J, in delivering the judgment in 89 CWN 1067 held, inter alia, that the said application ought to have been allowed by the trial court inasmuch as the deposits made in the name of one of the plaintiffs could at least be withdrawn by that plaintiff and that would tentamount to withdrawal by other plaintiffs as well and in such view of the matter if the insertion of the words "other" and/or "others" was there, that would not make any difference. In the present case the deposits were made in the names of the plaintiff No.1 and others. So the question of inserting of the word "others" in the challans does not arise at all. It is submitted by Mr. Dutta that the name of the plaintiff No. 1 was wrongly described as Samarendra Nath Saha was in the challans but the correct name of the plaintiff No. 1 was Samarendra Nath Shaw and not Samarendra Nath Saha, as stated in the challans. In my view the words "Shaw" and/or "Saha" are the same as it could be said in referring to earlier judgment of this Court in the case of Bengal Tent Factories Ltd. (Supra). 5. In my view the words "Shaw" and/or "Saha" are the same as it could be said in referring to earlier judgment of this Court in the case of Bengal Tent Factories Ltd. (Supra). 5. In such view of the matter the deposits made with the Rent Controller and also, in the Court should be held to the valid deposits and the, impugned order, therefore, cannot be sustained and is thus set aside. The Rule is made absolute without any order as to costs. I, however, direct that the plaintiffs would be at liberty to withdraw the deposits with out prejudice to the rights and contentions of the parties to the suit. If any such application for withdrawl of rent is made before the Rent Controller the Rent Controller will allow the same immediately, without notice to the petitioner and the petitioner will not raise any objection to such withdrawl. 6. The learned Judge is directed to hear out the suit as expeditiously as possible but definitely by December, 1987 and to see that no unnecessary adjournment is taken by any of the parties on any ground whatsoever and if any adjournment is taken by any of the parties the learned Judge will be at liberty to proceed with the suit ex parte. It is submitted by Mr. Durta appearing for opposite party that since 1981 no deposit of rent in the trial/court was made but this contention of Mr. Dutta is opposed by Mr. Das Gupta. According to him the current rent is being deposited in the Court below regularly. I make no observation regarding the same and that is to be decided by the trial Court. The learned Advocates are allowed to take the gist of the order and to communicate the same to the trial court and the trial Court is directed to act on such communication even if the official order does not reach the trial court in time.