Golam Kader vs Hazi Lutfur Rahaman

Banerjee, J.—This Rule is directed against an order striking off the defence of the Defendant Petitioner against the claim for delivery of possession of the premises in suit, made by the Plaintiff opposite party.

The Defendant Petitioner was a tenant under the Plaintiff opposite party in respect of one shop room at premises No. P-7, (now No. 10C) Suhrawardy Avenue, P.S. Beniapukur, Calcutta, paying a monthly rent of Rs. 20. On July 10, 1957, the Plaintiff opposite party instituted a suit claiming eviction of the Defendant Petitioner from the said premises, on the plea that the Defendant was a defaulter in payment of rent since November 1956.

The tenant Petitioner filed written statement in the said suit denying that he was a defaulter as alleged in the plaint. His specific defence was that he had deposited rents from months of October 1956 to June 1957 with the Rent Controller and, thereafter, he was going on depositing monthly amount calculated at the rate of rent with the trial Court.

The admitted position is that the Defendant Petitioner was served with summons in the case on July 17, 1957. He deposited an amount equivalent to the monthly rent for July 1957 on August 17, 1957, another such amount for August 1957 on September 14, 1957 and a similar amount for September, 1957 on October 28, 1957.

The application u/s 17(3) of the West Bengal Premises Tenancy Act, 1956, was filed by the Plaintiff opposite party on November 28, 1957, praying that inasmuch as the amount equivalent to the monthly rent for the month of September 1957 was not deposited in time, the defence against delivery of possession should be struck out.

The Defendant Petitioner filed a verified petition of objection to the prayer made by the Plaintiff opposite party, of which the material paragraphs are set out below:

Paragraph 5.-That the Petitioner is an illiterate person. He had no knowledge when the courts would reopen after the Pujah holidays; moreover he had been suffering from dysentery, accompanied by fever since October 23, 1957 and as such there was delay of 2 days only in depositing rent for September 1957, instead of depositing rent on October 25, it was deposited on October 28, 1957. A medical certificate is enclosed herewith.

Paragraph 6.-That the delay was quite unintentional. Had he not been prevented by illness and ignorance of the date of reopening, he would have surely deposited rent for September 1957 on October 25, 1957. No rent up to date is due from the Defendant Petitioner.

The Defendant Petitioner prayed in the said petition that the delay may be condoned and he further prayed for being allowed to contest the claim for possession.

By an order, dated January 14, 1958, the trial Court allowed the application filed by the Plaintiff opposite party and directed that the defence against delivery of possession be struck off The Court below was of opinion that the delay in depositing the amount equivalent to the rent for the month of September 1957 could not be condoned, in view of the mandatory provisions of Section 17 of the West Bengal Premises Tenancy Act.

Mr. Bhattacharjee appearing for the Petitioner argued before me that the case came u/s 17(5) of the West Bengal Premises Tenancy Act and not u/s 17(1) of the said Act. The plea that the Defendant was in arrears since November 1956 was denied in the written statement. Until the Court below determined whether the Defendant was at all in arrears and if so, what amount was he liable to deposit, the tenant Petitioner had, Mr. Bhattacharjee argued, no liability to deposit any amount at all. In support of his contention he relied on a decision of Renupada Mukherjee, J, reported in Duijesh Chandra Maitra v. Kshitish Chandra Ghose and Ors. (1957) 61. C.W.N. 837. This argument is entirely misconceived. Section 17(1) requires a tenant,-

(a) to 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 Rs. 8 1/3 per cent, per annum from the date when such amount was payable up to the date of deposit;

(b) and thereafter to continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate.

Section 17(2) provides that 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).

On failure on the part of the tenant to deposit or to pay any of the amount referred to in Sub-section (1) or Sub-section (2) of Section 17 the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit.

In this case there may be dispute as to the amount of arrears to be deposited or paid to the landlord up to June 1957 but there is no dispute as to the amount payable subsequent to June 1957. In respect of the latter amount nothing remained for the Court to determined u/s 17(2) of the Act.

For non-payment of any of these latter amounts, required u/s 17(1) of the Act, the provisions of Section 17(3) of the Act are attracted.

That being so, by paying the amount due for September 1957 beyond the statutory date, namely, October 15, 1957, the tenant Petitioner attracted the mischief of Section 17(3) of the Act.

It is true that the Court remained closed up to October 25, 1957 and because of that the tenant could not deposit in time but that did not entitle the tenant Petitioner to delay in making the deposit further beyond October 25, 1957.

Whatever may be the merits of the case made by the Defendant Petitioner, for extension of true, the Court below had no power to grant extension as prayed for or at all. Section 17(3) contains a mandatory provision and leaves no discretion in the Court. If any of the provisions of Section 17(2) of the Act is violated, the tenant must surfer the consequences provided for in Section 17(3) of the said Act.

In the above view of the matter, I hold that the Court below was right in striking out the defence against delivery of possession.

I discharge this Rule but regard being had to the circumstances of the case I make no order as to costs.