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1995 DIGILAW 92 (CAL)

In re: Sri Dilip Mukherjee v. .

1995-03-21

Rabin Bhattacharyya

body1995
Judgment Rabin Bhattacharyya, J.: 1. This revisional application is directed against the order No. 55 dated 26.9.94 passed by the learned Judge 10th Bench of the City Civil Court in Ejectment Suit No. 637 of 1999. 2. Uncontroverted facts of the case are that the plaintiff instituted a suit for eviction of the petitioner tenant from the premises on the ground of reasonable requirement. A silence all along was maintained in the suit about the default committed in respect of payment of rent by the petitioner. However, the tenant/defendant who is the petitioner before me as a matter of abundant precaution preferred an application under s. 17(2) of the West Bengal Premises Tenancy Act, 1956 for determination of arrears of rent, if any, including the determination of relationship of land-lord and tenant between the parties, coupled with a further application under s. 17(2A) (b) of the West Bengal Premises Tenancy Act, 1956 to grant instalment of arrears of rent, if found due. The petitioner/defendant also put in another application within the fold of s. 17 (1) of the said Act to deposit the current rent. 3. The material defence cultivated by the land-lord is about the non-maintainability of the applications and the overwhelming default committed by the tenant defendant in respect of payment of rent, since May, 1989 to September, 1989. Ultimately, the application suffered dismissal. To enliven the claim and to snatch an order from the Court, the tenant petitioner lodged an application under s. 151 of CPC with the Court with a prayer for setting aside the order passed on 23.5.94. 4. The learned Court below, after due: consideration of the submissions and the materials reflected in the application preferred under s. 151 of CPC, rejected the claim holding that the application was devoid of merit, since the earlier application was heard and disposed of in presence of the parties when this revision for reversal of the order impugned. 5. It has been debated at the bar that the petitioner tenant is armed with documents to dislodge the default as found by the Court but he could not avail of the same by the reason of his deprivation of an opportunity to put in the required documents during the crying need of the hour. 6. Mr. 5. It has been debated at the bar that the petitioner tenant is armed with documents to dislodge the default as found by the Court but he could not avail of the same by the reason of his deprivation of an opportunity to put in the required documents during the crying need of the hour. 6. Mr. Chatterjee, appearing in support of the contention has argued with much vehemence that the order impugned suffers from perversity in that the learned Judge acted illegally and with material irregularity in the exercise of his jurisdiction in not holding that since the petitioner had already deposited the rent for the check period with the Office of Rent Controller or in the suit, for which, he cannot be saddled with an obligation to redeposit the amount already deposited. It will be an engine of oppression on the defendant to bear with the situation. 7. Of course, the contention has been opposed by Mr. Asit Baran Raut, the learned Counsel appearing for the opposite parties. He has made a straight forward argument that the conduct of the petitioner defendant is not unblemished who could not produce any document in support of the payment of rent at the time of hearing. 8. After considering the relevant submissions, along with the provisions of s. 17 of the West Bengal Premises Tenancy, Act, 1956, I could only say that it is "much ado about nothing." 9. Mr. Chatterjee has built up his argument on the edifice of deprivation of an opportunity to put in the required document to displace the default committed in respect of payment of rent. He has excavated in his argument about the denial of opportunity but the boot is on the other leg, if we take a glance of s. 17 of the West Bengal Premises Tenancy Act. It explodes the plea of denial of opportunity. 10. The learned Counsel for the defendant petitioner has assiduously claimed that there is no default, since the petitioner has squared up all the payments within the time stipulated by the statute. But I am not unmindful that the petitioner defendant can harvest the desired relief even at the stage of hearing the issue under s. 17(3) of the West Bengal Premises Tenancy Act, 1956. But I am not unmindful that the petitioner defendant can harvest the desired relief even at the stage of hearing the issue under s. 17(3) of the West Bengal Premises Tenancy Act, 1956. It is the statutory duty of the Court to find out from the record or from the documents as to whether the deposit as contemplated by the statute in respect of payment of rent had been actually made. If the answer is found in the affirmative, a Court of law would be extremely slow to strike out the defence of the defendant's against delivery of possession from the suit premises, for which, no application is called for. That stage is yet to be over where the petitioner could put in the document to dislodge the findings of the learned Court below about the default found to have been committed since May, 1989 to April, 1994 totalling to a sum of Rs. 3,600/-. It is suggestive, therefore, that the petitioner is crying before he is hurt. It looms large that the matters covering within the fold of Ss. 17(1) and 17 (2A) were disposed of without any issue, which in my view cannot operate at any rate a res judicata. It is thus statutory obligation of the Court during the trial to find out the default, if any. There is no slender material on record that the learned Court below in passing the order overstepped the limits of jurisdiction. The findings relating to s. 17 (2) applications are tentative but not conclusive. 11. Besides, I am not oblivious about the proviso to s. 115 of the Code of Civil Procedure. The legislative changes effected to s. 115 postulates that the power under s. 115 could be exercised only, in respect of such order which can be reversed and if the same is allowed to stand, it would occasion failure of justice or cause an irreparable injury to the party against whom it was made. When the matter is awaiting disposal under s. 17 (3) of the Premises Tenancy Act, the question of prejudice or injury is nothing but a bald assertion of the petitioner defendant. This revisional application becomes maintainable in a case of this nature when an order passed if offends either (a) or (b) of the proviso as embodied in s. 115 of the Code of Civil Procedure. 12. This revisional application becomes maintainable in a case of this nature when an order passed if offends either (a) or (b) of the proviso as embodied in s. 115 of the Code of Civil Procedure. 12. The learned Counsel for the opposite party has argued that there is no material on record which could justify that the learned Court below in passing the order had acted illegally and there was material illegality' in exercising the jurisdiction. 13. For the foregoing reasons, I refrain myself from interfering with the order which in my view is water an air tight. Accordingly. I reject the contention of Mr. Chatterjee and upheld that of Mr. Asit Baran Raut, the learned Counsel for the opposite party. 14. In the result, the revision fails. Application dismissed.