Durga Dutta (Sm.) vs Dalhousie Properties Ltd.

P.N. Mookerjee, J.—This Rule was obtained by the Petitioner, who was one of the Defendants (Defendant No. 8) in the connected Ejectment Suit, against an order of the learned trial Judge, rejecting her application u/s 17(2) of the West Bengal Premises Tenancy Act, 1956, and also striking out her defence against ejectment u/s 17(3) of the said Act.

The point, now before us, requires only a short discussion and a short answer. It is contended before us by Mr. Banerjee, who appears for the Petitioner, that, in the instant case, there was no service of summons of the suit upon his client and that, in the circumstances, she was not under any obligation to deposit the amount in question, which fell due on account of rent or mesne profits, prior to her entering appearance, u/s 17(1) of the above Act; that, accordingly, there could be no non-compliance on her part with the said statutory provision, with the consequence that no penalty could be imposed on her under Sub-section (3) of Section 17 of the said Act.

It appears from the records that there was an order of the learned trial Judge, accepting the peon''s return of service of summons on this Defendant as a valid return of due service and, upon that footing, the suit proceeded and the present order of the learned trial Judge also appears to have been passed on that footing. The relevant peon''s return, however, does not seem to us to justify, such a conclusion. The service, according to the peon, was made by affixation after refusal of the Petitioner''s summons by one of her adult brothers. The peon''s return obviously proceeds under Rule 17, read with Rule 15 of Order 5 of the Code of Civil Procedure. The service; however, does not appear to have been effected or attempted at the residence of the Petitioner, as Petitioner''s address as Defendant No. 8, as aforesaid, as given in the plaint, was not her residential address but her alleged business address. In these circumstances, Rule 15 of Order 5 of the CPC would not apply to the instant case and the corresponding application of Rule 17 also would have to be ruled out. This was not disputed by Mr. Das who appears for the opposite party. But Mr. Das tried to justify the above service under Rule 14 of Order 5 of the CPC upon the argument that the Petitioner''s adult brother, to whom summons was tendered and who refused to accept the same, Was really her partner in the business and, more or less, the managing partner, who may well be held to be in charge of the disputed property and, accordingly, Rule 14 would apply to the instant case and validate the above service. The difficulty, however, in accepting the said submission lies in the fact that the said Rule postulates such service to be valid, only where it was impracticable to serve the Petitioner. There is nothing in the peon''s return in the instant case to indicate that that was the position and nothing also has been placed before us to justify such a conclusion. In the circumstances, Rule 14 of Order 5 would have no application to the instant case and the disputed service cannot be validated under the said provision.

In the premises, the instant case must be dealt with on the footing that the present Petitioner as Defendant No. 8 was not served with summons of the suit, but entered appearance therein even without such service. Once that position is accepted, the Petitioner cannot be saddled with any mischief or adverse consequence u/s 17 of the West Bengal Premises Tenancy Act, 1956, for non-payment or non-deposit of any arrear rent. At least to this extent the Petitioner will get full support from the decision of this Court in Lakshmi Kanta Bhuiya v. Behari Lal Poddar (1962) 69 C.W.N. 553 and, so far as this limited aspect is concerned, we are not inclined to take a different view in the matter. We would, accordingly, hold that, in the facts of this case, the Petitioner cannot be hit by the mischief of the provision u/s 17(3) of the West Bengal Premises Tenancy Act, 1956, and accordingly, her defence to delivery of possession cannot be struck out under the said statutory provision. This is enough for our present purpose and we do not propose to consider the other question, namely, u/s 17(2) of the Act at this stage and, for further and fuller consideration, we remit the same to the Court below after setting aside its present order on the point. That question will now be reconsidered by the learned trial Judge in accordance with law in the light of our finding made above, and we express no final opinion on the same.

We, accordingly, make this Rule absolute, set aside the impugned orders of the learned trial Judge and send the matter back to him for further consideration in the light of the observations made in this judgment, and for final hearing and disposal of the suit in accordance with the law.

Having regard to the nature and age of the present proceedings, it is desirable that further proceedings in the Court below should be expedited as much as possible and the learned trial Judge will take necessary steps in the matter for effectuating that purpose.

There will be no order for costs in this Rule.

A.N. Chakrabarti, J.

I agree.