Bhagaban Shaw vs Simmi Goyel

S.K. Datta, J.—This Rule is directed against order No. 124 dated September 15, 1976 in a suit for recovery of possession of the suit premises, whereby the application of the defendant under sections 17(1), 17(2) and 17 (2A) of the West Bengal Premises Tenancy Act, 1956 was rejected in final disposal thereof. The claim for recovery of possession was made on the ground of default in payment of rent, nuisance, annoyance and also of own use and occupation. According to the plaintiff''s case, the rent of the premises was Rs. 37/- per month according to the English calendar month. At the request of the defendant the plaintiff agreed to make thorough repairs to the premises within May 1972 and the defendant agreed to pay rent, at the rate of Rs. 50/- per month with effect from March, 1972. The repairs were made by the plaintiff but the defendant while paying the rent at the enhanced rate of Rs. 50/- on May 14. 1972 took the position that the enhanced rate of rent would be effective from June, 1972. The defendant defaulted in payment of rent at the rate of Rs. 50/- last paid by him from June 1972 to May 1973.

The defendant''s case was a denial of all allegations of default, annoyance, nuisance or own requirement. The plaintiff it was said, under the pretext of repairs demolished southern and eastern walls of the premises and thereafter suddenly stopped further work in August 1972 and requesting the defendant to continue the work on account of her financial stringency. The defendant completed the repair work at a cost of Rs. 838.88 P but the plaintiff declined to adjust against rent the costs so incurred by the defendant and was claiming enhanced rent which she was not entitled to do in absence of repairs agreed to be made by her. It was also said that rent for March to June 1972 was paid at the old rate but the plaintiff''s husband tempered the receipt to Rs. 150/-.

Immediately after his appearance in the suit the defendant filed an application u/s 17(1), 17(2) read with Section 17 (2A) disputing the rate of rent and period of defaults and praying for permission to deposit rent at the old rate and for extension of time to deposit arrears if any by instalments. The defendant''s further case was the the enhanced rent could be effective only if the repair had been made by the plaintiff which was not done. Further the defendant was entitled to adjustment of the costs incurred by him at the request of the landlady for repairs against rent at the usual rate. The plaintiff filed objection reiterating her claim for enhanced rent, which was according to her case, in fact paid by the defendant for March to May, 1972 as the repairs were done by her with-in May, 1972.

The learned Munsif found that the defendant admittedly was in arrear of rent from June, 1972 to May 1973 for twelve months at the rate last paid while he had been depositing rent from June 1973 at the rate of Rs. 37/- per month. Relying on the decision in Kazi Abddl Hossain vs. Fazlur Rahman 78 C.W.N. 599, the learned Munsif was of opinion that in absence of deposit of the admitted arrear rent, the application was not maintainable in law.

Even so, the learned Munsif proceeded to determine the rate of rent in the context of the dispute raised by the defendant. It was found on the basis of an endorsement in the rent counterfoil that the defendant had agreed enhanced rate of rent at the rate if Rs. 50/- per month from June 1972. On the evidence adduced the learned Munsif in effect held that the landlord''s case of repairs as having made by her was not established while the defendant was not entitled to the credit for the amount spent by him for repairs undertaken voluntarily at his risk and not on the order of the Rent Controller, though the defendant might be entiled to recover such costs by suit. Though the defendant was otherwise liable to pay arrear rent at Rs. 50/- per month from June 1972 to March 1973 and balance at the rate of Rs. 13/- per month from June 1973 along with statutory interest with 8�% statutory interest, no direction could be made for necessary deposit as the application itself was held to be not maintainable in absence of deposit of admitted rent.

Before we proceed to examine the findings of the learned Munsif it must be said that in view of the conclusion arrived at by him about the non-maintainability of the application, it was not necessary for him to embark on the investigation about the rate of rent and the question of arrears. Since the learned Munsif had come to a conclusion about the rate of rent and arrears, which has a bearing on the decision of the suit, it is necessary for us to examine if the application was maintain-able in law and further if the other findings are sustainable. Sub-Section (2) of Section 17 provides that if there is a dispute about the amount of rent payable by the tenant, he shall within time specified in sub-section (1), deposit in court the amount admitted by him to be due from him together with an application for determination of rent payable. There can be little dispute that under the aforesaid provisions if sub-section (2A) was not there unless such deposit of admitted amount is made, the application under Sub-section (2) will not be maintainable.

Sub-section (2A) is as follows:

(2A). Notwithstanding anything contained in Sub-section (1) or Sub-section (2), on the application of the tenant, the Court may, by order,--(a) extend the time specified in Sub-section (1) or Sub-section (2) for the deposit or payment of any amount referred to therein; (b) having regard to the circumstances of the tenant as also of the landlord and the total sum inclusive of interest required to be deposited or paid under sub-section (1) on account of default in the payment of rent, permit the tenant to deposit or pay such instalments and by such dates as the Court may fix.

Section 17(1) provides for deposit or payment of rent, if there is any default, upto the month previous to deposit or payment within thirty days of service of summons or appearance, together with interest as specified. The amount so payable or to be deposited is to be calculated at the rate of rent last paid. The provision further provides for continuation of the payment or deposit of rent at that rate month by month by the 15th of each succeeding month obviously during the pendency of the suit. The time for such deposit specified in Sub-section (1) may be extended, if an application is made under Sub-section (2A), Clause (a) and even, the Court under Clause (b) may permit deposit or payment of the amount defaulted upto the month previous to the order with interest by suitable instalments as the Court having regard to the circumstances, may fix for the purpose.

If however a dispute as to the amount payable is raised by the tenant under Sub-section (2), there is no further scope for any steps being taken under Sub-section (1), so that the provisions noted above will have no application. In making the application under Sub-section (2), the tenant is required to deposit or pay the amount admitted by him to be due from him. Under Sub-section (2A), clause (a) the court can grant an extension of time for payment of such admitted amount on the application of the tenant, but it has no further power in law to grant instalment as in a case where sub-section (1) of section 17 is attracted.

In view of this situation as the tenant had filed an application with prayer under Sub-section (2A) also, his failure to deposit admitted arrears at the rate last paid as required u/s (2) would not be fatal to his application, as on his application under Sub-section (2A) filed within time the Court can extend the time for deposit or payment of any amount referred to therein. The learned Munsif thus committed an error in exercise of his jurisdiction in holding that the application in the circumstances was not maintainable.

On merit, the learned Munsif has held that the rate of rent is Rs. 50/- per month as agreed to by the parties, to be effective from June 1972, in place of the subsisting rent of Rs. 37/-. The tenant u/s 4 (1) (b), in the instant case, is to pay rent agreed upon by the parties until fair rent is fixed in accordance with law. There seems to be no bar in law in the tenant''s voluntarily agreeing to pay higher rent than what was payable under the earlier agreement or over the fair rent. When however such enhancement in rent is dependent on the landlord''s making effective repairs to the premises as agreed unless such repairs are established to have been made the claim for enhanced rent consequent on repair is not acceptable. If any dispute about the repairs is raised, it will be for the parties to establish their respective cases in proceedings u/s 17(2) of the Act. The Court will have to come to the finding as to whether the claim for enhanced rent as agreed to by the parties has been established and if so, it will determine the amount payable on the basis of enhanced rent and pass appropriate orders accordingly. If the claim for enhanced rent is not established the court will determine the rate of rent at the original rate and give necessary directions for deposit or payment of amount due in terms of Sub-section (2) read with Sub-section (2A) (a).

In the instant case, the parties have adduced evidence and the finding of the learned Munsif is to the effect the defendant agreed to pay enhanced rent from June 1972 which made him liable to pay the enhanced rent. There was no acceptable evidence before the learned Munsif about the repairs being done by the landlord. It is true that the tenant is not entitled to recover or adjust repair costs made by him u/s 17(2) without sanction of the Rent Controller except by independent legal proceeding. In absence of such proof of repairs by the landlord she cannot be entitled to claim the enhanced rent in proceedings u/s 17(2). In view of the above position, the Rule is made absolute and impugned order is set aside. The learned Munsif will dispose of the application filed by the defendant u/s 17(2) read with Section 17 (2A) (a) in accordance with, law in the light or the observations made herein on the basis of rent at the rate of Rs. 37/- per month, fixing a time payment of the amount so found due with statutory interest therein on adjustment of any amount deposited by the tenant.

There will be no order for costs and let the records be sent down immediately.