Baidyanath Seal vs Rama Rani Ghosh and Another

Prasenjit Mandal, J.—This application is at the instance of the defendant and is directed against the order No. 241 dated May 15, 2008 passed by the learned Civil Judge (Junior Division), Fourth Court, Howrah in Title Suit No. 379 of 1994 thereby allowing an application u/s 17(3) of the West Bengal Premises Tenancy Act and thereby rejecting an application u/s 151 of the Code of Civil Procedure.

The short fact is that the plaintiffs/opposite parties instituted the Title Suit No. 379 of 1994 for ejectment and other reliefs. In that suit, the defendant/petitioner appeared and filed an application u/s 17(1) of the West Bengal Premises Tenancy Act for permitting him to the deposit current rent in Court and another application u/s 17(2) (2A)(B) of the West Bengal Premises Tenancy Act praying for allowing him to pay arrears of rent, if any, by easy instalments after determination of the same. That application u/s 17(2)(2A)(B) was heard and disposed of by the learned Trial Judge holding that the defendant/petitioner was a defaulter in payment of rent since November, 1992 to January, 1996 and accordingly he was to pay Rs. 2,535/- as arrears of rent for that period. Thereafter, the petitioner filed an application u/s 151 of the C.P.C. praying for setting aside that order contending that he had already deposited the rents for the said period with the rent controller and as such, he was not a defaulter at all. But by the impugned order, the learned Trial Judge has allowed the application u/s 17(3) of the West Bengal Premises Tenancy Act for striking off the defence as well as an application u/s 151 of the C.P.C. filed by the plaintiff was dismissed. Being aggrieved by the impugned order, the defendant has come up with this application.

Now the point for consideration is whether the impugned order can be sustained.

Upon hearing the learned Advocate for the parties and on consideration of the materials on record, I find that it is the specific contention of the defendant/petitioner that he paid rents for the so-called period of default from November, 1992 to January, 1996 with the rent controller. As regards the current rent, he has been paying the same in Court and there is no dispute in this regard. So far as the arrears of rent, it is the specific contention of the defendant/petitioner about deposit of such rent with the rent controller. By the said application u/s 151 of the C.P.C., the defendant has also prayed for permitting him to deposit the arrears of rent of Rs. 2,535/- at a time as arrears of rent as held by the Court by condoning the delay and extending the time to deposit the amount under the circumstances. Actually, the impugned order relating to disposal of the application u/s 151 of the C.P.C. is related to an application for an ad interim injunction filed by the plaintiff and not the application u/s 151 of the C.P.C. filed by the defendant to consider the prayer of the defendant that in case he was found a defaulter, he may be permitted to deposit the said amount at a time. That application u/s 151 of the C.P.C. filed by the defendant was disposed of on September 1, 1997. Thereafter, the petitioner filed another application u/s 151 of the C.P.C. to reconsider the order dated September 1, 1997. That application was dismissed on June 29, 2000 holding that the Court has no jurisdiction to set aside the order dated September 1, 1997. Then the defendant filed another application u/s 151 of the C.P.C. on August 16, 2000 for allowing him to deposit Rs. 2,535/- at a time as arrears of rent by condoning the delay to deposit the same. But the order impugned does not lay down anything relating to the application u/s 151 of the C.P.C. filed by the defendant on August 16, 2000. Therefore, the order impugned cannot be supported at all.

The learned Advocate for the plaintiff/opposite party submits that no revisional application lies against an order of allowing the application u/s 17(3) of the West Bengal Premises Tenancy Act and an appeal lies against such orders. Therefore, this revisional application is not maintainable.

In support of his contention, he has relied on the decision of Iswar Singh Kripal Singh & Co. v. The Rajputana Trading Co. Ltd. and Anr. reported in 1977 CWN 326, Sadhana Lodh Vs. National Insurance Company Ltd. and Another, and Central Bank of India Vs. Vrajlal Kapurchand Gandhi and Another, and thus, he submits that no appeal lies.

Upon due consideration of those decisions, I find that none of them is applicable in the instant case. The decision of Iswar Singh Kripal Singh & Co. (supra) refers to the fact that when there was tender of the rent and that was not accepted by the landlord, it cannot be said that the tenant fails to pay the rent. In that case, the Hon''ble Court held that when the Court passes an order of striking out the defence it amounts to a part determination of a part of the substantial rights of the defendant and it comes within the definition of judgment. In the instant case, the specific contention of the defendant is that actually he deposited the rent for the period with the rent controller and if the learned Trial Judge considers that the deposit is not valid he was ready to pay the entire amount at a time. That application was not considered before passing of the order impugned. Therefore, this decision is not applicable.

As regards the decision of Sadhana Lodh (supra), I find that this decision lays down where an appeal was to be filed instead of a writ petition under Article 226/227 of the Constitution in a case of payment of compensation under the provisions of the Motor Vehicles Act, 1988 by an insurer. The scope of the insurer was limited to the extent as laid down u/s 149(2) of the M.V. Act, 1988 and that is why it was observed that an appeal lies against the order of the Tribunal and not a revision.

The third decision of Central Bank of India (supra) relates to question of jurisdiction of the Hon''ble High Court in relation to a matter of rent control and eviction when Act itself was challenged. This is not also applicable in the instant situation.

Therefore, I am of the view that before passing the impugned order, the learned Trial Judge should have disposed of the application u/s 151 of the C.P.C. filed by the defendant/petitioner on August 16, 2000. Accordingly, the order impugned cannot be sustained. It is hereby set aside.

The learned Trial Judge is directed to dispose of the application u/s 151 of the C.P.C. filed by the defendant on August 16, 2000 preferably within a period of 30 days from the date of communication of the order. Thereafter, he shall proceed to dispose of the application u/s 17(3) of the West Bengal Premises Tenancy Act in accordance with law.

The application is disposed of in the manner indicated above.

Considering the circumstances, there will be no order as to costs.

Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.