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2001 DIGILAW 45 (CAL)

Sekh Jhuri alias Md. Jhuri v. Md. Khalil

2001-02-02

Subhro Kamal Mukherjee

body2001
JUDGMENT Subhro Kamal Mukherjee, J. This revisional application is directed against an order dated May 24, 1995 passed by Shri Shyamal Sengupta, learned Munsif, Sencond Court at Sealdah in Title Suit No. 710 of 1992 rejecting the application under section 17(2A)(b) of the West Bengal Premises Tenancy Act hoding, inter alia, that as the defendant has obtained relief under section 17(4) of the West Bengal Premises Tenancy Act in Title Suit No. 200 of 1976 of the court of the learned Munsif, Third Court at Sealdah, the application under section 17(2A)(b) of the West Bengal Premises Tenancy Act in the present suit was not maintainable. 2. Admittedly, the petitioner is a tenant in respect of the suit premises under the plaintiff opposite party. Admittedly, a suit being Title Suit No. 200 of 1976 was filed against this petitioner on the ground of default and the said suit the petitioner get relief under section 17(4) of the West Bengal Premises Tenancy Act. The present Title Suit No. 710 of 1992 was instituted, inter alia, on the allegation that the defendant is defaulter in payment of rent in respect of the suit premises since September 1983. It was, also, contended that the plaintiff reasonably required the suit premises for his own use and occupation as well as for the user occupation of his family members. In the said suit being Title Suit No. 710 of 1992 defendant entered appearance and filed an application under sections 17(2A)(b) praying for easy installment. The said application has been rejected by the order impugned as not maintainable. 3. Section 17(1) of the said Act contemplates that in all suits for eviction, be it on the ground of the default or not, instituted by the landlord, the tenant is to deposit in court or with the Rent Controller or to pay directly to the landlord an amount calculated at the rate of rent at which it was last paid for the period for which the tenant may have made default with interest at the rate of 8 1/3 per cent calculated from the date when any such amount was payable up to the date of deposit. Apart from depositing the arrear of rent the tenant was under obligation to deposit an amount calculated at the rate of rent at which it was last paid month by month after the institution of the suit and the said amount is to be paid on 15th of each succeeding month. Even if the tenant is not in arrear, tenant is require to deposit an amount equivalent to rate of rent at which it was last paid month by month and in case of default, the second part of the provision of section 17(1) of the said Act operates. 4. Section17(2) of the said Act refers to existence of any dispute as to the amount of rent payable by the tenant and contemplates that in case of existence of such a dispute, the tenant must deposit the amount of admitted rent within the specified time and, also, at the same time make an application for determination of the amount payable. In 1969 sub-section (2A) was added to section 17 empowering the court to extend the time for making the deposit of the amount referred to in sub-sections (1) and (2) notwithstanding anything contained in those sub-sections. Under clause (a) of section 17(2A) court is empowered to extend the time to make deposit under sections 17(1) and 17(2).Under clause (b) of section 17(2A) the court is empowered to grant to the tenant, having regard to the circumstances of the tenant as also of the landlord and the total sum inclusive of interest required to be deposited or paid, installment to payor deposit, as the case may be, the amount by such dates as these court may fix. 5. Section 17(3) of the said Act contemplates striking out of defence against delivery of possession in the event of tenant's failure to deposit or pay any amount referred to under section 17(1) or 17(2) within the times specified therein or within such extended time granted to the tenant under clause (a) of section 17(2A) or in case of failure to pay the instalment granted to the tenant under clause (b) of section 17(2A) within the time fix therefor. Therefore, when a defendant does not raise the dispute about the amount of arrears or does not pray for granting his instalment under section 17(2A), at the time of hearing of the application under section 17(3) of the said Act the tenant cannot raise the aforesaid disputes. 6. Section 17(4) contemplates that in case of compliance of the requirements of sections 17(1), 17(2) and 17(2A), no decree or order for delivery of possession on the ground of default of payment of rent should be made by the court, but the court is empowered to allow such cost as the court may deem fit to the landlord. In the proviso to section 17(4) it was made clear that tenant shall not be entitled to any relief under section 17 (4) if, having obtained such relief once in respect of the premises, he has again made default in the payment of rent for four months within a period of twelve months. 7. It is alleged in the plaint of Title Suit No. 710 of 1992 that the tenant has committed default in payment of rent in respect of the suit premises for a period more than four months within a period of twelve months. Whether such allegation is true or not is a matter of trial in the suit. Issues involved in the present suit, inter alia, are whether tenant has committed a default again in the matter of payment of rent for four months within a period of twelve months after obtaining relief under section 17(4) in Title Suit No.200 of 1976 in respect of the premises in suit. The learned Munsif went wrong in pre-judging the issues and acted illegally and material irregularity in proceeding on the basis that in every subsequent suit tenant's application under sections 17(2) or (2A) will not be maintainable when tenant has obtained the relief under section 17(4) in the earlier suit. The learned Munsif, therefore, failed to appreciate the scope of sections 17(1), 17(2) and 17 (2A) of the West Bengal Premises Tenancy Act and illegally dismissed the application under section 17(2A)(b) of the West Bengal Premises Tenancy Act, as not maintainable. 8. I, therefore, set aside the order impugned and allow the revisional application. 9. The learned Munsif, therefore, failed to appreciate the scope of sections 17(1), 17(2) and 17 (2A) of the West Bengal Premises Tenancy Act and illegally dismissed the application under section 17(2A)(b) of the West Bengal Premises Tenancy Act, as not maintainable. 8. I, therefore, set aside the order impugned and allow the revisional application. 9. I, however, direct the learned Munsif to disposed the application under section 17(2A)(b) of the West Bengal Premises Tenancy Act filed by the defendant/petitioner in accordance with law as early as possible and in no case beyond three months from the date of communication of this order to him. Office is directed to communicate a copy of this order to the court below by a special messenger of the cost of the opposite party and such cost is to be deposited within seven days. '. Impugned order set aside.