Gokul Bala Roy vs Sarat Chandra Ghosal

Renupada Mukherjee, J.—This Rule was issued at the instance of the Plaintiff of an ejectment suit. The suit was instituted in the trial Court by the Petitioner for evisting the Defendant opposite party from premises No. 119, Manoharpukur Road, bearing a rental of Rs. 20 per month on the ground that the premises were required reasonably for her own., use and occupation. The Defendant opposite party filed a defence in that suit. When the suit was in progress before the trial Court, an application was filed by the Plaintiff for striking out the defence of the opposite party against delivery of possession u/s 17 of the West Bengal Premises Tenancy Act, 1956. This application was heard by the learned Munsif on the 2nd August,1956 and he rejected the application. The present Rule was obtained by the Plaintiff Petitioner against that order.

It is not disputed before me that summons in this case was served upon the Defendant opposite party on the 15th May, 1956. It is not also disputed that rent was payable by the tenant according to Bengali calendar month. After the service of summons the tenant deposited rent twice with the Rent Controller, namely, rent for the months of Baisak and Jaistha, 1363 B.S. These rents were deposited within the 15th day of the succeeding month. Admittedly rent for the month of Asar, 1363 B.S. was deposited in the trial Court on the 18th 1363 B.S., that is, after the expiry of the statutory period for making the deposit.

Mr. Basu appearing on behalf of the Plaintiff Petitioner contended that according to Section 17(1) of the West Bengal Premises Tenancy Act, 1956, rents for Baisakh and Jaistha which were deposited after service of summons should have been deposited in court and not with the Rent Controller because Section 17 recognises only two modes of payment or deposit, namely, "deposit in court" or ''payment to the landlord" and it does not recognise deposit with the Rent Controller. In my judgment, this contention is without any substance. It may easily be imagined that after the institution of an ejectment suit feelings between the parties get strained and the landlord cannot be expected to be willing to accept rent amicably. In these circumstances, the tenant may after the institution of a suit deposit rent with the Rent Controller in the prescribed manner u/s 21 of the Act referred to above, and if such deposit is made in accordance with the provisions of the West Bengal Premises Tenancy Act, 1956, then under Sub-section (3) of Section 22, a deposit of rent with the Rent Controller should be taken as equivalent to payment to the landlord. Under these circumstances, I hold that deposit of rent in this particular case for the months of Baisakh and Jaistha, 1363 B.S., must be regarded as equivalent to payment of rent to the landlord within the meaning of Section 17(1) of the West Bengal Premises Tenancy Act, 1956. The first contention urged on behalf of the Petitioner must, therefore, fail.

The next argument advanced by Mr. Basu challenging the propriety of the order of the trial Court seems to be substantial. It is an admitted fact that rent for Asar 1363 B.S. was deposited in Court on the 18th Sraban, 1363 B.S. corresponding to the 3rd August, 1956. The order u/s 17 of the West Bengal Premises Tenancy Act, 1956, was passed by the learned Munsif on the 2nd August, 1956. By that time, the time for paying or depositing the rent for the month of Asar, 1363 B.S. had already expired. Still the learned Munsif extended the time for payment of rent of Asar, 1363 B.S. by directing that it should be paid immediately. In my opinion the learned Munsif had no jurisdiction to extend time for payment of rent in this manner.

Mr. Banerjee appearing on behalf of the tenant opposite party submitted that Section 17 of the Act in question, particularly Sub-section (1) of that section does not apply to a case like this, because, there was no default on the part of the tenant prior to the institution of the suit and Sub-section (1) of Section 17 applies only when there is such prior default. Sub-section (1) of Section 17 runs as follows:

(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 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 rate.

Mr. Banerjee drew my particular attention to the expression "and shall thereafter continue to deposit" and contended that unless there is any prior default there will be no meaning or significance of the above quoted expression. After giving an anxious consideration to this argument, I am unable to accept it. because in a previous portion of the Sub-section it is said that the tenant must deposit previous arrears in respect of which "the tenant may have made default". This last expression shows that there may or may not be prior default. In my opinion, Sub-section (1) of Section 17 applies also to a case where there is no prior default and after the institution of an ejectment suit a tenant must pay or deposit rent month by month by the 15th of each succeeding month as has been laid down in the section.

Mr. Banerjee argued in the next place on behalf of the opposite party that the defence of the opposite party against delivery of possession cannot be struck off in view of the provisions of Section 13(1) of the West Bengal Premises Tenancy Act, 1956. That clause taken along with the opening portion of Section 13 runs in the following terms:

(1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant except on one or more of the following grounds, namely:

* * *

(i) Where the tenant has made a default in the payment of rent for two mouths within a period of twelve months or for two successive periods in cases where rent is not payable monthly.

* * *

Mr. Banerjee submitted that under the provisions of Clause (1) quoted above a tenant can be evicted on the ground of default in payment of rent for two months within a period of twelve months or for two successive periods where rent is not payable monthly. From this Mr. Banerjee contended that if that be the ground of eviction of a defaulting tenant, then the defence of the opposite party cannot be struck out for one single default because that would be against the wording and spirit of Clause (1) of Section 13. In my opinion, this contention also is not sound, because Clause (i) constitutes one of the grounds on which a landlord may bring a suit for eviction against a tenant and the default contemplated in Clause (i) can be cured'' or; remedied by payment after the institution of the suit in tonus of Sub-sections (1) and (4) of Section 17. The default with which we are concerned in the present Case is altogether a different kind of default for which the legislature has chosen to provide a very stringent penalty, namely, the striking out of the defence against delivery of possession. The undisputed facts of this case show that after the institution of the ejectment suit on the ground of reasonable requirement, the tenant made default in depositing in Court, the rent for Asar, 1363 B.S. because the amount was deposited three days out of time. I have already observed that the learned Munsif had no jurisdiction to extend the time. As the amount was paid out of time the penalty provided in Sub-section (3) of Section 17 must come into operation. No doubt it would be a very hard case if the defence of the tenant against ejectment is struck out for this single default but that is the only consequence which would result from the default. Much as I sympathise with the hardship which would operate on the opposite party, I am constrained to say that the order passed by the learned Munsif in extending time to the opposite party to deposit rent for Asar 1363 B.S. was without jurisdiction. That order must be set aside.

In the result this Rule is made absolute and the order complained of is hereby set aside. The defence of the opposite party against delivery of possession is struck out. The learned Munsif will now proceed with the hearing of the suit in accordance with law.

Considering the circumstances of the case I do not make any order" as to costs in this Rule.