Dwijesh Chandra Maitra vs Kshitish Chandra Ghose

Renupada Mukherjee, J.—This Rule is directed against an order passed by a learned Judge of the Court of Small Causes, Calcutta, in connection with an ejectment suit brought under the provisions of the West Bengal Premises Tenancy Act, 1956.

The following are some of the admitted facts of the case. The suit for ejectment was filed on August 1, 1956 and summons in the suit was served upon the Defendant Petitioner on August 17, 1956. The Defendant appeared on August 28, 1998 and applied for an adjournment for filing his written statement. Time was allowed till Novermber''14, 1956, for that purpose and the Defendant was also directed to deposit arrears of rent within one month from August 17, 1956. No amount was deposited by the Defendant within that time. There was an allegation in the plaint that rent at Rs. 55 per month was in arrears for some months prior to the institution of this suit. The Defendant filed his written statement on November 14, 1956, in which the amount chained by the landlords by way of arrears of rent was challenged. The learned Judge did not determine this dispute about the amount of arrears but he thought that as the tenant Defendant had not deposited his arrears of rent within one month of the date of service of summons and had not pleaded within that time that there was a dispute about the amount of arrears, he had forfeited his right of defence against delivery of possession as laid down in Sub-section (3) of Section 17 of the "West Bengal Premises Tenancy Act, 1956. I may mention here that on the very day the Defendant had filed his written statement, namely, on November 14, 1956. The landlords filed an application u/s 17 of the above Act for striking out the defence of the tenant against delivery of possession, although the section does not specifically require that such an application should be made by the landlord. However, on the basis of that application the defence of the Defendant against delivery of possession was struck out by the trial Judge on December 15, 1956 and an order was passed for ex parte hearing of the suit. The Defendant has moved this Court in revision challenging legality and propriety of the above order.

After hearing Mr. Bagchi on behalf of the tenant Petitioner and Mr. Mukherjee on behalf of the landlords opposite parties and on a consideration of Sub-sections (1) and (2) of Section 17 of the West ''Bengal Premises Tenancy Act, 1956, I am of opinion that the order passed by the learned trial Judge is erroneous in law and, as such, it cannot be supported. Sub-sections (1),(2),(3) of the above Act which are relevant for our purpose run in the flowing terms:

When a tenant can get the benefit of protection against eviction-(1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 13, the tenant shall, within one month of the service of the writ of summons on him. deposit in the Court or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of eight and one-third per cent, per annum from the date when any such amount was payable up to the date of deposit, and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that date.

(2) If in any suit or proceeding referred to in Sub-section (1) there is any dispute as to the amount of rent payable by the tenant, the court shall determine having regard to the provisions of this Act, the amount to be deposited or paid to the landlord by the tenant in accordance with the provisions of Sub-section (1).

(3) If a tenant fails to deposit or pay any amount referred to in Sub-section (2) or Sub-section (2) the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit.

Section 17 of the West Bengal Premises Tenancy Act, 1956, does not make any provision for any application being made by the landlord with a view to obtaining an order from the court that the defence of the tenant against delivery of possession should be struck out for non-payment or non-deposit of arrears of rent. The court is not, however, an omniscient being and unless the amount of arrears is brought to the notice of the court, it cannot determine the amount of money which the tenant should deposit. Sub-section (1) of Section 17 apparently contemplates a case where the tenant admits that he has made some default in paying rent and he dots not challenge the amount of arrears which the landlord is entitled to get. But where the tenant raises a dispute about the amount of rent the court must first determine, having regard to the provisions of the above mentioned Act, what amount is to be deposited or paid to the landlord by the tenant. The time-limit of one month from the date of service of summons prescribed in Sub-section (1) cannot have any application to a case where the tenant raises a dispute about the amount of arrears, because the dispute about the arrears may not necessarily be determined within the above period. The trial Judge appears to have been of opinion that immediately after service of summons a tenant must inform the court as to whether any rent is in arrears from him. Sub-section (1), however, does not contain any such provision nor does it cast any such duty upon the tenant. A tenant may very well think at that stage that he is not a defaulter and unless the landlord puts forth a claim for arrears, he is not bound to say that he is not in default. The silence of a tenant at that stage of the suit does not mean that he admits at that stage that whatever claim the landlord may later on make about the amount of arrears must be true. In my opinion, the first two Sub-sections of Section 17 of the West Bengal Premises Rent Control Act, 1956, are independent of each other. Sub-section (1) requires a tenant to pay or deposit his arrears where lie does not question the amount of such arrears at all or at any stage of the suit and Sub-section (2) requires the tenant to pay or deposit the arrears after determination of a dispute where there is a dispute about the extent of arrears.

Sub-section (2) contains a flaw in that it does not lay down within what time of the determination of the dispute the tenant should pay or deposit the arrears determined by the court. u/s 14(4) of the West Bengal Premises Rent Control Act, 1950, which was a somewhat parallel section the statutory period for such a deposit was 15 days from the date of the order of the Court. Sub-section (2) of Section 17 of the present Act does not prescribe any such time-limit. Obviously the time-limit prescribed in Sub-section (1) cannot apply because the dispute about the amount of arrears may not arise till the expiry of that time-limit or the dispute may not be decided within that time-limit even if it may be raised within it. The omission in Sub-section (2) to prescribe any time-limit does not appear to be deliberate but is due to some oversight of the legislature, because the legislature consciously prescribed a stringent time-limit of one month from the date of the service of summons in cases governed by Sub-section (1) of Section 17, but no such time-limit is prescribed in Sub-section (2) where there is a dispute about arrears. Sub-section (2) must be reasonably construed so as to make it workable and the court should fix its own time-limit for the payment or deposit of such arrears as may be determined by it regard being had to the facts and circumstances of each particular case.

For reasons set forth above, I am of opinion that the trial Judge was not justified in penalising the Defendant Petitioner by striking out his defence against ejectment on the ground that no arrears were deposited by him within one month from the date of service of summons. As there was a dispute about such arrears, the trial Judge should have first determined the dispute and then allowed a reasonable time to the Defendant Petitioner to pay or deposit such amount of arrears as may be found to be due from him.

With these observations, I make the Rule absolute and set aside the order complained of and remit the matter to the trial Judge for disposal of the dispute between the parties about the amount of arrears in accordance with the foregoing observations and in accordance with law. Let the records be sent down to the court concerned at a very early date. The learned Judge of the Court of Small Causes will decide the matter remitted to him as expeditiously as possible.

The parties will bear their own costs in this Court.