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2008 DIGILAW 1046 (CAL)

Bhupendra Chandra Routh v. Alpana Ganguly

2008-12-05

P.S.Datta

body2008
JUDGMENT: 1. THE Title Suit No. 158 of 1998 now pending in the Court of the learned civil Judge, (Junior Division), 1st Court at Asansol filed by the opposite party herein, is a suit for eviction in connection with which, the present petitioner as defendant filed an application under Section 17 (2) of the west Bengal Premises Tenancy Act, 1956 praying for determination of the amount of monthly rent and permission to make auch deposit if found due by instalments. 2. LEARNED trial Court by Order No. 60 dated 12th May, 2004 found the defendant to be defaulter for 35 months for the period from January, 1997 to September, 1999 and February, 2000 to March, 2000 and directed the petitioner/defendant to deposit a total amount of Rs. 8425/- in four instalments. The rate of rent was adjusted at Rs. 175/- per month payable according to English calendar month. This order was passed on contest upon examination of the witnesses followed by cross-examination and upon examination of documents. The petitioner filed a petition on 7th July, 2004 under Section 151 c. P. C. praying for reconsideration of the order dated 12th of May, 2004 on the ground that during hearing of the application under Section 17 (2) of the act he could not produce the challans showing payment of the rent with the rent Controller in connection with Misc. Case No. 40 of 1997 for the months of January, 1997, December, 1997, January, 1998 to July, 1999 and according to the defendant/petitioner if those challans were considered then the amount in arrears would have been found less than what was determined by the trial Court in the order dated 12th May, 2004. The learned trial Court by the impugned order dated 6th of December, 2004 did not find any merit in the petition and as the order dated 12th May, 2004 was not complied with the learned trial Judge in the impugned order made a fresh direction for deposit of the arrears amount of rent in four instalments along with the payment of current rent within 15th of each succeeding English Calendar month. In effect because of non-compliance with the order dated 12th May, 2004 the said order under Section 17 (2) had to be modified by the learned trial Court and with such modification the petition under Section 151 C. P. C. stood disposed of on 6th December, 2004. 3. In effect because of non-compliance with the order dated 12th May, 2004 the said order under Section 17 (2) had to be modified by the learned trial Court and with such modification the petition under Section 151 C. P. C. stood disposed of on 6th December, 2004. 3. I have heard Mr. A. K, Das learned Advocate for the petitioner and Mr. Md. Mansooralam, learned Advocate appearing for the opposite party. I have also perused the order dated 12th May, 2004 and the impugned order dated 6th December, 2004. The basis of the prayer for reconsideration of the order dated 12th May, 2004 was that the challans showing deposit of rent with the Rent Controller in connection with Misc. Case No. 40 of 1997 for the months from January, 1997, December, 1997, and January, 1998 to July, 1999 could not be produced at the time of hearing of the application under Section 17 (2) of the Act and if the said challans were examined by the learned trial Court then the learned trial Court would have found that the defendant was not defaulter for a period of 35 months. At the time of hearing of the revisional application before this Court a bunch of challans were produced and it could be revealed at a glance that the said challans showing deposit of rent with the Rent Controller were all invalid challans. Learned trial Court rejected the petition under Section 151 c. P. C. but did not assign any reason as to why he was not inclined to reconsider the order dated 12th May, 2004. Recording of reason for rejection of the petition was necessary and it is submitted that the order of rejection without reason is not legally sustainable. Still then it was pointed out before the learned trial Court by the plaintiff's counsel in the trial Court that the challans were all invalid challans. During hearing the learned Counsel for the petitioner had to concede expressly that all those deposits were invalid deposits and in the face of the challans being invalid the learned trial Court's order cannot be assailed. Therefore, the application under Article 227 of the Constitution of India to assail the order dated 6th December, 2004 is bereft of any substance. Still then a fresh order is necessary in the matter of deposit of Rs. Therefore, the application under Article 227 of the Constitution of India to assail the order dated 6th December, 2004 is bereft of any substance. Still then a fresh order is necessary in the matter of deposit of Rs. 8,425/-which is the arrears amount of rent, if such deposit has not already been made. Accordingly, the petitioner shall deposit the arrear amount of rent of Rs. 8,425/- in four instalments out of which three instalments would be of Rs. 2,100/- per month and the last instalment would be of rs. 2,125/- and such instalment shall be payable commencing from the month of February, 2009. That is to say that such instalment shall be payable by fifteen of each month commencing from February, 2009 and such deposit must be made along with payment of rent of each current month within 15th of each succeeding English Calendar month as was ordered by the learned trial Court. With regard to the prayer for permission. to withdraw the rent already deposited through invalid challans no order is necessary since the trial Court in the order impugned has already accorded such permission. 4. SUBJECT to the modification in the matter of payment of the arrears amount of rent in the sum of Rs. 8,425/- the application is dismissed without any order as to costs. A copy of the judgment shall be sent to the learned Civil Judge, (Junior Division), 1st Court, Asansol with reference to the Title Suit No. 158 of 1998. Urgent certified photostat copies of this judgment, if applied for, be supplied to the parties upon compliance with all the requisite formalities. S. K. G.