Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 63 (CAL)

R. Kunjan Pillai v. Ranibala Dinda

2008-01-16

JYOTIRMAY BHATTACHARYA

body2008
Judgment By the impugned order two applications filed by the respective parties were disposed of by the learned Trial Judge. The defence of the defendant against eviction was struck out on the plaintiff’s application under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956. Simultaneously the defendant’s application for correction of Challan was also allowed by the learned Trial Judge. The defendant/petitioner is aggrieved against that part of the impugned order by which his defence against delivery of possession under 17 (3) of the said Act was struck out. Hence the instant revisional application was filed by the defendant/petitioner herein. Since the defendant/petitioner did not deposit the rent of the suit premises for the current months from October 1999 to December 2003 in the name of all the heirs of the original landlord since deceased even after their substitution in the suit, the instant application under Section 17 (3) of the said Act was filed by the plaintiffs/opposite parties, inter alia, praying for an order for striking out the defence of the defendant against eviction. The learned Trial Judge held that deposit of rent for the said period in the name of one of the landlords amounts to invalid deposits, as the defendant/tenant, in spite of having knowledge that there were other landlords and/or co-sharers apart from Atanu Dinda, deposited the rent for the said period in the name of Atanu Dinda only. Accordingly, the defence of the defendant against eviction was struck out by the learned Trial Judge. The propriety of such an order is under challenge in this application. Let me now consider as to how far the learned Trial Judge was justified in striking out the defence of the defendant for not depositing the rent for the said period in the name of all the substituted heirs of the original landlord. The effect of deposit of rent in the name of one of the landlords was considered by this Hon’ble Court in the following decisions:- (i) Chamanlal Rewashankar & Ors. Vs. Vasant Jiwraj Thakkar & Ors. reported in 89 CWN 1067 (ii) Nawal Kishore Agarwalla Vs. Samarendra Nath Shaw reported in 1988 (1) CLJ 34. The effect of deposit of rent in the name of one of the landlords was considered by this Hon’ble Court in the following decisions:- (i) Chamanlal Rewashankar & Ors. Vs. Vasant Jiwraj Thakkar & Ors. reported in 89 CWN 1067 (ii) Nawal Kishore Agarwalla Vs. Samarendra Nath Shaw reported in 1988 (1) CLJ 34. It was uniformly held by this Hon’ble Court in the aforesaid decisions that when the tenant deposits rent in the name of one of the plaintiffs/landlords out of many, it is sufficient, as the rent can be withdrawn by one landlord which is tantamount to payment to all the landlords. Even the Hon’ble Supreme Court in the case of Chitranjan Burman Vs. Om Prakash Bajoria reported in (2001) 1 SCC 758 also held that when rent was admittedly tendered to one of the co-owners, i.e., one of the plaintiffs in the suit, it would be unjust nay atrocious to hold that there was no valid tender of rent. If the principles as laid down by the Hon’ble Apex Court as well as by this Hon’ble Court in the aforesaid decisions are applied in the facts of the instant case then, this Court has no hesitation to hold that the deposits which were made by the petitioner in favour of one of the substituted heirs of the original landlord for the aforesaid period, are valid deposits inasmuch as the said heir of the original landlord in whose favour deposits were made, can withdraw such deposits and such withdrawal will tantamount to payment of rent to all the heirs of the original landlord. Mr. Kinjal Boral, learned Advocate, appearing for the opposite parties, however, submitted that since the petitioner, in spite of having knowledge of all the substituted heirs of the original landlord, did not deposit the rent in favour of all the heirs of the original landlord without any reasonable excuse, such deposits cannot be held to be valid deposits. In support of such submission, Mr. Boral referred to a decision of this Hon’ble Court in the case of Provabati Das Vs. In support of such submission, Mr. Boral referred to a decision of this Hon’ble Court in the case of Provabati Das Vs. R. R. Joneja reported in 1978 (1) CLJ 589 wherein it was held that when there is no excuse for the tenant for not depositing the rent in the names of all the plaintiffs for a particular period in spite of having knowledge about the names of all the landlords, the deposits made by the tenant in the name of one of such landlords, cannot be held to be valid deposits. The principles which were laid down in the said decision, cannot be accepted as declaration of law of the land, as the said decision was taken by a learned Single Judge of this Court without taking note of the earlier decision of this Hon’ble Court in the case of Chamanlal Rewashankar (supra). Even the view which was taken by this Hon’ble Court in the case of Provabati Das (supra) is not in conformity with the decision of the Hon’ble Supreme Court in the case of Chitranjan Burman (supra). Thus, following the principles as laid down in the case of Chamanlal Rewashankar (supra), Nawal Kishore Agarwalla (supra) and Chitranjan Burman (supra), this Court can safely hold that the deposits made by the petitioner in favour of one of the landlords for the aforesaid period, are valid deposits and as such, the learned Trial Judge was not justified in striking out the defence of the defendant against delivery of possession. Even if I look at the problem from different angle, still then this Court cannot affirm the impugned order of striking out of defence of the defendant against eviction in view of the decision of the Hon’ble Supreme Court in the case of M/s. B.P. Khemka Pvt. Ltd. Vs. Birendra Kumar reported in AIR 1987 SC 1010 wherein it was held that the Court is vested with discretion to order either striking out the defence or not, depending upon the circumstances of the case and the interest of justice. In the said decision, the Hon’ble Supreme Court held that the Court should not strike out the defence of the defendant against eviction for technical defaults. In the instant case, I find that there is no default in payment of rent in true sense as rent was deposited in favour of one of the landlords for the entire period. In the said decision, the Hon’ble Supreme Court held that the Court should not strike out the defence of the defendant against eviction for technical defaults. In the instant case, I find that there is no default in payment of rent in true sense as rent was deposited in favour of one of the landlords for the entire period. The plaintiffs claim that such deposits are irregular deposits and thus invalid, while the defendant claims that such deposits are valid deposits inasmuch as, such deposits can be withdrawn by one of the landlords and such withdrawal will tantamount to payment to all. Looking this problem from this angle also, this Court cannot support the impugned order, as the Court should not have struck out the defence of the defendant against eviction even for technical defaults which are not default in true sense. Accordingly, this Court holds that the learned Trial Judge was not justified in striking out the defence of the defendant against delivery of possession for non-deposit of rent in the name of all the landlords. Thus, that part of the impugned order by which the defendant’s defence against eviction was struck out by the learned Trial Judge, stands set aside. The revisional application is, thus, allowed on contest. Considering the age of the litigation and stage of the trial of the suit, this Court directs the learned Trial Judge to expedite the hearing of the suit and the learned Trial Judge is also directed to make utmost endeavour to dispose of the suit, positively within a period of six months from the date of communication of this order.