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1994 DIGILAW 10 (CAL)

SUBHENDRANATH BHATTACHARYA v. RAMALA GHOSH

1994-01-12

N.K.BHATTACHARYYA

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NRIPENDRA KUMAR BHATTACHARYYA, J. ( 1 ) BY this Revisional Application the Plaintiff challenged the impugned order No. 55 dated 19-2-1992, passed by the Judge, City Civil Court, 8th Bench, in Ejectment Suit No. 183 of 1987, rejecting the Defendants' application under Section 17 (2) and 17 (2a) of the West Bengal Premises Tenancy Act 1956, read with Section 151 of the Civil Procedure Code and also rejecting the plaintiff's application under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956 (which term will be referred to hereafter as "the Act" ). ( 2 ) IN a short compass the fact of the case is that the plaintiff is the Owner of Premises No. 8, Girish Avenue, Calcutta-700 003. ( 3 ) ONE Nirendra Nath Bose, since deceased, was a monthly tenant under the plaintiff's in respect of four rooms, bath, privy and kitchen on the ground floor of that premises at a monthly rental of Rs. 130/ (besides be Rs. 10. 00 per month for taxes including the electric charges) payable according to English calendar month. ( 4 ) THE said Nirendra Nath Bose died intestate and unmarried some time on or about January, 1980, leaving behind him his brother and sisters, the defendants in the suit as his heirs and legal representatives, of deceased Nirendra Nath Bose. ( 5 ) IT is alleged that during the time of death of the said Nirendra Nath Bose the said defendants were residing with him. It has also been alleged that the defendants have defaulted in payment of rent for the month 1982, June and September, 198 3/02/198 4/02/1986, and for the month of May, June, July, August and September 1986. The plaintiff after termination of tenancy by a notice to quit, brought a suit for eviction of the defendants on the grounds, inter alia, reasonable requirement sub-letting and default of payment in respect of rents, being Ejectment Suit No. 183 of 1987 in the City Civil Court at Calcutta. ( 6 ) THE defendant No. 3 made an application in the Trial Court under Sections 17 (2) and 17 (2a) of the Act read with Section 151 of the Civil Procedure Code praying for determination of the period of default and for permitting the said defendant to deposit the said arrear by easy monthly instalments. ( 6 ) THE defendant No. 3 made an application in the Trial Court under Sections 17 (2) and 17 (2a) of the Act read with Section 151 of the Civil Procedure Code praying for determination of the period of default and for permitting the said defendant to deposit the said arrear by easy monthly instalments. In that petition the said Defendant admitted that he had defaulted in payment of rent only for the month of February 1986 as the plaintiff refused to receive the money order but the rents for other months as alleged to have been defaulted in payment have already been paid and according to him the monthly rent is Rs. 140/ -. The plaintiff in his objection to the said petition alleged that no rent for the months as mentioned in Schedule 'b' to the plaint has been paid and if the same has been deposited in the Rent Controller's Office then those deposits are invalid deposit as there was no valid tender. He also disputed the relationship of Landlord and Tenant. The plaintiff also filed another application under Section 17 (3) for striking out the defence against delivery of possession. ( 7 ) ALL these three applications were heard together by the learned Judge, 8th Bench, City Civil Court, Calcutta, and disposed of by Order No. 55 dated 19-2-1992, rejecting all the applications of the defendants and the plaintiff as aforementioned. The ld. Judge, City Civil Court, found that the defendants deposited the rent for February 1986 and July 1987, ten days after the statutory period and as the application under Section 17 (1) was filed within time along with rent for February 1986 and July 1987 and the same being accepted by the Court the petition of the defendant under Sections 17 (2) and 17 (2a) has become redundant and on that view he rejected the said petition of the defendant and also rejected the petition of the plaintiff under Section 17 (3) as premature. ( 8 ) AGAINST that order the plaintiff has come up before this Court in revision. ( 9 ) MR. U. S. Bhattacharjee, the ld. ( 8 ) AGAINST that order the plaintiff has come up before this Court in revision. ( 9 ) MR. U. S. Bhattacharjee, the ld. Advocate for the petitioner contended that as the plaintiff has brought the suit on the ground, inter alia, of default in payment of rent for the period detailed in Schedule 'b' to the plaint and as the defendant No. 3 in his petition has prayed for determination of the period of default and also prayed for payment by easy monthly instalments of the same, the order of rejection of the said petition on the ground that the defendant No. 3 has deposited the rent for the months of February 1986 and July 1987 with his application under Section 17 (1) of the Act and accepted by the Court is without any jurisdiction. ( 10 ) MR. Biswajit Mitra, ld. Advocate for the Opposite party No. 3 on the other hand contended that the order impugned is proper legal and valid. ( 11 ) SUB-SECTION (2) Section 17 of the Act enjoins a duty upon the Court to specify the amount due from the Tenant, by way of preliminary order. Clause (b) of sub-section (2) of Section 17 of that Act also cast a duty upon the Court to make a final order determining the rate of rent and the amount to be deposited in Court by the Tenant or to be paid to the landlord either fixing the time within which the amount shall be deposited in Court or paid to the landlord and either fixing the time within which the amount shall be deposited or paid, as the case may be, directing that the amount already deposited or paid be adjusted in such manner and within such time as may be specified in the order. ( 12 ) SUB-SECTION (2a) of Section 17 of the Act provides for extension of time upon an application by the Tenant and clause (b) of the said sub-section (2a) of Section 17 specifies that the total sum so determined inclusive of interest required to be deposited or paid under sub-section (1) on account of default in the payment of rent, permit the tenant to deposit of pay such sum in such instalments by such dates as the Court may fix. ( 13 ) IN the instant case the defendant No. 3 made a composite application under Sections 17 (2) and 17 (2a) of the Act read with Section 151, C. P. C. wherein the defendant has prayed for determination of the period of default and also prayed for permission to pay the sum to be so determined by the Court by easing monthly instalment. Though the defendant No. 3 has stated in this petition that the default is for one month i. e. for the month of February 1986 the ld. Trial Judge found in his impugned order that the default was for the months of February 1986 and July 1987. Defendant No. 3 though admitted that he was a defaulter only for the month of February 1986 but the same has been disputed by the Plaintiff and he has specified the period of default in Schedule 'b' to the plaint and also in the opposition to the Ss. 17 (2) and 17 (2a) petition. He has also disputed the relationship of landlord and tenant. ( 14 ) THE ld. Trial Court without determination of the said dispute rejected the petition of the defendant under Section 17 (2) and 17 (2a) of the Act read with Section 151, C. P. C. in the summary manner. This is not permissible under the law. The Court has a duty to determine the period of default the rent payable and the question of relationship of Landlord and Tenant and direction to be given for payment of the same upon an application by the defendant by easy monthly instalment. The ld. Trial Court not having been done that outright rejected the petition of the defendant under Sections 17 (2) and 17 (2a) of the Act read with Section 151 of the C. P. C. Accordingly, the impugned order is without jurisdiction and cannot be sustained in law. ( 15 ) IN the result the Revisional application is allowed on contest. The impugned order is hereby set aside. ( 16 ) THE ld. Trial Court is directed to dispose of the application of the defendant under Section 17 (2) and 17 (2a) of the Act read with Section 151 of the C. P. C. according to law. ( 17 ) THERE will be no order as to costs. Application allowed.