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2001 DIGILAW 771 (CAL)

Sanat Kumar Dey v. Anil Kumar Das

2001-12-19

BHASKAR BHATTACHARYA

body2001
JUDGMENT This revisional application it at the instance of a tenant/defendant in a suit for eviction and is directed against order dated March 31, 2001 passed by the Additional District Judge, 13th Court Alipore in Civil Revision No. 476 of 2000 thereby affirming an order dated September 1, 2000 passed by the Civil Judge (Junior Division), 2nd Court, Alipore in Title Suit No. 490 of 1990. 2. The aforesaid suit was filed by the opposite party for eviction of the present petitioner on the ground of default in payment of rent. 3. The petitioner after entering appearance in the suit filed an application under Section 17(2) of the West Bengal Premises Tenancy Act thereby disputing the rate of rent. The allegation was that the rate of rent was Rs. 186/- a month, but the defendant paid the rent at the rate of Rs. 140/a month. 4. Ultimately, the learned trial Judge disposed of the application under Section 17(2) of the said Act filed by the petitioner by accepting the contention of the landlord that the rate of rent was Rs. 186/- and the learned trial Judge by such order directed the tenant to deposit a sum of Rs. 40,000/- by 12 monthly instalments. 5. Being dis-satisfied the petitioner preferred a revisional application before this Court but this Court refused to interfere with the order passed by the learned trial Judge. After disposal of the said revisional application, the petitioner deposited the entire amount assessed by the learned trial Judge while passing such order under Section 17(2) of the said Act. 6. It may not be out of place to mention here that while disposing of the application under Section 17(2) of the said Act, the learned trial Judge also directed the petitioner to go on paying rent at the rate of Rs. 186/- a month during the pendency of the suit. Subsequently, the opposite party filed an application under Section 17(3) of the said Act for striking out the defence against delivery of possession on the ground of non-compliance of the order passed under Section 17(2) of the said Act. 7. 186/- a month during the pendency of the suit. Subsequently, the opposite party filed an application under Section 17(3) of the said Act for striking out the defence against delivery of possession on the ground of non-compliance of the order passed under Section 17(2) of the said Act. 7. At the time of hearing of such application it was detected that although the petitioner deposited the entire arrear of rent assessed by the learned trial Judge while disposing of an application under Section 17(2) of the said Act, but did not comply with the last portion of the order by which the petitioner was directed to pay current rent at the rate of Rs. 186/- a month. Instead of depositing the rent at the rate of Rs. 186/- a month, the petitioner went on depositing at the rate of Rs. 140/- a month as alleged by him, as the actual rate of rent in the application under Section 17(2) of the said Act. 8. In view of such fact, the learned trial Judge struck out the defence against delivery of possession on the ground of non-compliance of the earlier order passed by the Court. 9. Being dis-satisfied the petitioner preferred the revisional application under Section 115A of the Code of Civil Procedure before the revisional Court below and by the order impugned in this application the said Court has affirmed the order, passed by the learned trial Judge. 10. Being dis-satisfied the tenant has filed the instant revisional application under Article 227 of the Constitution of India. 11. After hearing the learned Counsel for the parties and after going through the materials-on-record, I find that the petitioner committed mistake in depositing the rent at the rate of Rs. 140/- a month instead of Rs. 186/- a month assessed by the learned trial Judge. Mr. Chatterjee appearing on behalf of the petitioner submits that the said amount was deposited due to mistake as there was no specific direction in the order passed on the application under Section 17(2) of the said Act specifying the said rate. Mr. De appearing on behalf of the opposite party, however, submits that the Court having accepted the plaintiff's version as regards the rate of rent, there could not be any mistake on the part of the tenant in not depositing the actual rate of rent assessed by the Court. 12. Mr. Mr. De appearing on behalf of the opposite party, however, submits that the Court having accepted the plaintiff's version as regards the rate of rent, there could not be any mistake on the part of the tenant in not depositing the actual rate of rent assessed by the Court. 12. Mr. Chatterjee has further drawn attention of this Court to the fact that during the pendency of the revisional application before the revisional Court below, his client has already deposited the balance amount of Rs. 46/- a month for the entire period with interest. 13. It is now settled law that while considering an application under Section 17(3) of the West Bengal Premises Tenancy Act, the Court shall consider whether the tenant deliberately and wilfully violated the order passed by the Court under Section 17(2) of the said Act. In the instant case, tenant has deposited the entire amount of Rs. 40,000/- assessed by the learned trial Judge. Only mistake that was committed by the tenant, was that instead of depositing the rent at the rate of Rs. 186/-, he has deposited the rent at the rate of Rs. 140/- a month. There is no dispute that all the amount was deposited by the petitioner before the learned trial Judge by filling up challans and those challans were passed by the Court. Therefore, it was also the duty of the Court to verify whether the amount deposited by the tenant was correct. If such mistake was pointed out at that stage, the tenant could rectify such mistake. In the fact of the present case, mala fide cannot be inferred from the conduct of the tenant. At the best, it was a negligence on the part of the lawyer's clerk of the petitioner, who actually tendered the amount. 14. Therefore, under such circumstances, the Court ought not to have struck out the defence of the tenant against delivery of possession. I thus find that the learned Courts below did not follow the well-accepted principle now enunciated by the Supreme Court in the matter of considering the question of striking out the defence, (see in AIR 1987 SC 1010 ). 15. In thus set aside the order impugned and dismiss the application under Section 17(3) of the West Bengal Premises Tenancy Act provided the petitioner pays cost of Rs. 15. In thus set aside the order impugned and dismiss the application under Section 17(3) of the West Bengal Premises Tenancy Act provided the petitioner pays cost of Rs. 2000/- to the learned Advocate for the opposite party in this Court within 10th January, 2002. The aforesaid amount is equivalent to about one year's rent. I think that the landlord will be sufficiently compensated for the aforesaid negligence on the part of the tenant by payment of such cost. In default of payment of the aforesaid cost within 10th January, 2002, this revisional application will-stand dismissed. Let xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties within one week after re-opening.