Barun Chandra Saha vs Apurba Krishna Mitra

P.N. Mookerjee, J.—This appeal is by the Defendant and it arises out of a suit for ejectment and it is directed against the decree for ejectment passed ex parte against the Defendant after striking out his defence u/s 17(3) of the West Bengal Premises Tenancy Act, 1956.

The suit was instituted on February 22, 1960. There was a notice of ejectment to the validity of which some objection was taken, but in the view, which we are taking, it will not be necessary for us to make any pronouncement with regard to the said objection.

It appears that, after entering appearance, the Defendant applied for an order u/s 17(2), raising a dispute as to the amount of rent payable by him, his contention being that it was Rs. 50 per month and not Rs. 55 per month, as untruly alleged by the Plaintiff. To this application there was an objection filed by the Plaintiff and the matter was taken up for consideration and decided by the Court below by its order dated October 7, 1961. In that order the learned trial Judge accepted the defence contention that the rent of the disputed premises was Rs. 50 per month and rejected the Plaintiff''s contention to the contrary, namely, that it was Rs. 55 per month. At the same time, the learned trial Judge did not allow the set-off claimed by the Defendant towards rents and in the concluding part of his order the learned trial Judge observed:

It is not in dispute that rent of the premises has been in arrears since Falgoon 1365 B.S. The Defendant, thus, is liable to deposit in Court the arrears of rent upto date at the rate of Rs. 50 per month from Falgoon 1365 till Bhadra 1368 B.S., that is, a period of 31 months and the Defendant is permitted to deposit in Court within 30 days of this date a sum of Rs. 1,550 as rent in arrears.

This was in addition to the direction made in that order for deposit of current rents month by month within the 15th of the month following as required by the statute. The order then concluded with a default clause: ''In default, the mischief of Sub-Section 3 of the Section 17 would be attracted to the case''.

The Defendant did not deposit the amount of Rs. 1,550 on account of arrears as directed by the Court below, with the result that his written statement was struck out by the Court on December 4, 1961, following another order, passed in the meantime, on November 13, 1961. The suit was heard ex parte on December 20, 1961, when it was decreed by the learned trial Judge and against this decree the present appeal was filed by the Defendant on March 10, 1962.

In support of the appeal Mr. Lala contends that the learned trial Judge was in error in directing a deposit of Rs. 1,550 on account of arrears of rents by his aforesaid order dated October 7, 1961. Our attention has been drawn to a number of deposits made in Court on account of rents prior to that date for which the relative challans are on the record.

Mr. Sen, appearing on behalf of the Plaintiff-Respondent, has contended that these challans were not brought to the notice of the Court below at the time the above order was passed and they were not exhibited-and, accordingly, they should not be looked into or taken into consideration.

Whatever might be the view on the above matter, this much is clear that, in the Defendant''s evidence before the Court, he categorically stated on October 4, 1961, while giving evidence in the Section 17(2) matter, that he was depositing rents month by month in Court. This appears to have been unchallenged in cross-examination. It is difficult, in the above circumstances, to realise how the learned trial Judge found no dispute with regard to existence of arrears from Falgoon 1365 B.S. His order, therefore, was clearly based on a misconception and against the evidence, given in the case. It is clear from the record that the arrears, calculated by the learned trial Judge at Rs. 1,550 on the date of his order u/s 17(2) of the West Bengal Premises Tenancy Act, 1956, was a miscalculation and the said order suffered from this infirmity. It is, accordingly, to be set aside and with it would fall the subsequent proceeding, taken on the basis of the said order, namely, the ex parte decree for ejectment, passed in the instant case.

A second point was raised by Mr. Sen in support of his objection to this appeal, namely, that it was time barred, as although it was registered as in time by the learned Stamp Reporter of this Court on the basis of an amendment, made by the trial Court in the decree under appeal, that amendment would not be material for the purpose of this appeal or for calculation of the period of limitation for the same.

We find, however, that the instant appeal is from the decree which was for ejectment and mesne profits, and the amendment definitely and materially altered the decree in respect, at least, of the Plaintiff''s claim for mesne profits, and was, thus, a vital part of the decree, from which the instant appeal was filed and a material part of the subject matter of the said appeal.

In the above view, this objection also of Mr. Sen would fail.

In the result, this appeal will be allowed, the learned trial Judge''s order u/s 17(2) of the West Bengal Premises Tenancy Act, 1956, will be set aside as also the decree for ejectment, passed by him on the basis thereof, and the case would go back to the learned trial Judge for fresh consideration of the matter u/s 17(2) of the above Act and for necessary orders thereon in accordance with law and for final disposal of the suit thereafter, in accordance with law in the light of the said orders. There will be no order for costs in this Court. Other costs will abide the discretion of the learned trial Judge when he finally disposes of the suit.

Let the records go down as quickly as possible and let the further hearing of the suit be expedited as much as possible by the learned trial Judge in the Court below.

Be it mentioned that we are not expressing any opinion as to the existence or extent of arrears, if any, for purpose of the above Section 17(2) and the decision thereof is left wholly to the learned trial Judge.

Amaresh Roy, J.

I agree.