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2000 DIGILAW 617 (CAL)

Gouri Chanda v. Govinda Prasad Kezkiwal

2000-12-07

SUBHRO KAMAL MUKHERJEE

body2000
Judgment 1. This is a plaintiff's revisional application against an Order No. 37 dated August 30, 2000 passed by the learned Civil Judge (Junior Division), First Court at Sealdah in Title Suit No.5 of 2000. 2. Admittedly, the opposite parties are premises tenants under the plaintiff. Previously, Title Suit No. 107 of 1994 was instituted against them and by judgment and decree dated April 25, 1995, learned Munsif, Additional Court at Sealdah decreed the same in part on contest and granted the plaintiff/petitioner a decree of costs of the suit and defendants/ opposite parties got the benefit of Section 17(4) of the West Bengal Premises Tenancy Act, 1956. 3. The plaintiff instituted the present suit, inter alia, alleging that the defendants have again made defaults in payment of rent with effect from the month of May 1995. 4. In the said suit defendant No.2 filed an application under Section 17(2) and (2A)(b) of the West Bengal Premises Tenancy Act, 1956, contending, inter alia, that the defendants are not defaulter in payment of rent from the month of May 1995 as they are all along depositing their monthly rent in the office of Rent Controller, Calcutta after legal and valid tender to the plaintiff. A written objection was filed by the plaintiff wherein it was categorically contended that there was no tender of rent either directly to the plaintiff or through Money Order. In the counter objection to the said written objection, the defendant No.2 reiterated that the tenants are depositing rent regularly in the office of Rent Controller, Calcutta after legal and valid tender to the plaintiff under the law. 5. The learned Civil Judge in the order impugned held that the defendants have filed Rent Control Challans from January 1995, to July 2000 and such deposits have been made within time except in some cases where there have been delay of one or two days. The learned. Judge condoned such delay being triffle in nature and held that there is no default made by the defendants in depositing the, rent in the office of the Rent Controller. 6. I have heard Shri Rudrajyoti Bhattacharjee, learned Advocate for the petitioner and Shri Tapas Kumar Bhattacharjee, the learned Advocate for the opposite party. 7. The learned. Judge condoned such delay being triffle in nature and held that there is no default made by the defendants in depositing the, rent in the office of the Rent Controller. 6. I have heard Shri Rudrajyoti Bhattacharjee, learned Advocate for the petitioner and Shri Tapas Kumar Bhattacharjee, the learned Advocate for the opposite party. 7. To appreciate the rival contentions of the learned Advocates appearing for the respective parties, I am to take note of the provisions of Section 2l (l) of the West Bengal Premises Tenancy Act, 1956 ;- Section 21. Deposit of rent by the tenant-(1) Where the landlord does not accept any rent tendered by the tenant within the time referred to in Section 4 or where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner- Provided that where any rent is remitted by, the tenant to the landlord by postal money order, the date of issue of the postal money order shall, for the purposes of this sub-section, be deemed to be the date of tender of such rent by the tenant to the landlord. 8. Therefore, under the provisions of the West Bengal Premises Tenancy Act, 1956, it is only when the deposit is made in the prescribed manner and, also, in the circumstances specified in Section 21 of the said West Bengal Premises Tenancy Act, 1956 that the deposit is a valid deposit and can be treated as a deposit of rent. A deposit is permitted in the office of the Rent Controller only under two conditions-(a) where the landlord does not accept the rent tendered to him by the tenant within the times specified in Section 4 of the said Act; (b) where there is a bona fide doubt as to the person or persons to whom rent is payable.-These are the conditions precedent which must be satisfied for 'depositor' rent to be valid. Mere deposit of the rent in the office of the Rent Controller without tendering the rent to the landlord by the tenant within the time prescribed in Section 4 of the said Act. would make the deposit invalid. Mere deposit of the rent in the office of the Rent Controller without tendering the rent to the landlord by the tenant within the time prescribed in Section 4 of the said Act. would make the deposit invalid. I 'have' noted hereinabove that it was the specific case of the landlord that there has been no tender prior to deposit of rent in the office of the Rent Controller and as such it was incumbent upon the learned trial Judge to come to a positive finding whether the deposit made in the office of the Rent Controller, Calcutta by the tenants was preceded by a valid tender as contemplated under Section 21 of the West Bengal Premises Tenancy Act, 1956. I regret, in the order impugned, there is no such finding. 9. I, therefore, set aside the order impugned and direct the learned trial Judge to dispose of the application under Section 17(2) and (2A)(b) of the West. Bengal Premises Tenancy Act, filed by the defendant No. 2 afresh in the light of the observations made in the body of this judgment. 10. Bhaskar Bhattacharya, J., by an order dated July 14, 2000 passed in Civil Order No. 1663 of 2000 directed the learned trial Judge to .dispose of the application under Section 17(2) of the Act after giving opportunities to the parties to lead evidence in accordance with law positively before Puja Vacation. I, considering the aforesaid directions of Bhattacharya, J., direct the learned trial Judge to decide the application under Section 17(2) and (2A)(b) of the West Bengal Premises Tenancy Act afresh positively by January 2001. 11. There will be no order as to costs. Office is directed to communicate this order to the trial Court by a special messenger at the cost of the plaintiff/petitioner positively by December 15, 2000 and the petitioner is directed to deposit such special messenger cost immediately. S. K. G.