Gopal Singh vs Jagannath Prosad

Chittatosh Mookerjee, J.—The Appellant was a tenant in respect of two rooms, verandah and a kitchen on the western part of holding No. 5 Afzal Hussain Lane together with the user of the common privy and the courtyard under the Plaintiff-Respondent. The Plaintiff-Respondent brought an ejectment suit against him alleging that the Defendant tenant had committed default in payment of rent since June 1964. The rate of rent was stated to be Rs. 40 per month payable according to English calendar. The Plaintiff further claimed that the tenancy of the Defendant had been terminated by a lawyer''s notice dated June 21, 1965.

The Defendant (present Appellant) in his written statement claimed that the rate of rent was Rs. 30 per month and not Rs. 40 as alleged by the Plaintiff. He also pleaded that he did not know English and somehow he could sign his name in Urdu. But the Plaintiff had been issuing rent receipts to him in English language. Taking advantage of the Defendant''s ignorance of the English language, the Plaintiff while realising the rent for the month of May 1964 had fraudulently changed the figure of rent therein to Rs. 40 although a sum of Rs. 30 was paid by the Defendant and obtained his signature in the counterfoil of the receipt. The Defendant further stated that after the Plaintiff refused to accept the rent tendered for the month of June 1964 he had been depositing such rent in the office of the Rent Controller month by month upto the month of October 1965. Since November 1965, he had been depositing rent in the Court.

The learned Munsif,. Additional Court, Asansole, dismissed the suit, inter alia, holding that the Defendant''s rent was Rs. 30 per month and not Rs. 40 per month as alleged by the Plaintiff. He further accepted the case of the Defendant that he had tendered rent for June 1964 to the Plaintiff and the Plaintiff had refused to accept the same. According to the learned Munsif, the deposits made by the Defendant in the office of the Rent Controller were all valid. The Plaintiff preferred an appeal against the said decision. The learned Subordinate Judge, Asansole, allowed the said appeal holding, inter alia, that the rate of rent of the suit premises was Rs. 40 and not Rs. 30 per month. He further held that the deposits made by the Defendant in the office of the Rent Controller were invalid and therefore, he was a defaulter. The deposits made by the Defendant were also considered as invalid as they were not preceded by tenders to the Plaintiff.

In view of insertion of Sub-section (4)(a) in Section 21 of the West Bengal Premises Tenancy Act by West Bengal Premises Amendment Act, 1969, I hold that the Defendant tenant was not required to make tender to the landlord in respect of each month before depositing such rent in the office of the Rent Controller. One tender in respect of the first month for which deposit was made in the office of the Rent Controller would be sufficient particularly when it was not the case of the Plaintiff that he had ever expressed his willingness to accept rent if tendered to him. The provisions of Sub-section (4) of Section 17 have been also altered by the aforesaid Amendment Act. Therefore, it is necessary to consider whether the Defendant tenant had fully complied with the provisions of Sub-section (1) or Sub-section (2) of Section 17, as the case may be, so as to be eligible for relief under Sub-section (4) of the said section. In the instant case, the Defendant tenant did not previously obtain relief under Sub-section (4) of Section 17 of the Act. Therefore, now proviso to Sub-section (4) has no manner of application to the facts of the present case. The Defendant tenant did not also deposit in the Court or in the office of the Rent Controller or paid to the landlord in terms of Section 17(1) the arrear rent outstanding at the date or in or about the time of the service of the summons of the suit. In other words, the Defendant tenant did not comply with the provisions of Section 17(1) by depositing or paying rent for the period for which he might have committed default. In this connection it is necessary to consider whether the Defendant tenant made an application u/s 17(2) of the West Bengal Premises Tenancy Act, regarding the amount of arrears.

Before taking up the said question I might deal with the other question regarding the rate of rent of the suit premises. The lower appellate Court, as already stated, reversed the finding of the trial Court that the rate of rent was Rs. 30 per month and not Rs. 40 per month as claimed by the Plaintiff. Mr. Chakravorty for the Appellant strenuously argued before me that the said finding of the lower appellate Court could not be sustained as the said was vitiated by errors of law. According to Mr. Chakravorty, the lower appellate Court did not consider the entire evidence on the point. I am unable to accept this submission made on behalf of the Appellant. The matter was entirely one of fact. The lower appellate Court, as the final Court of fact, was entitled to come to its own conclusion regarding the rate of rent. The lower appellate Court believed the Plaintiff and the two witnesses examined on his side that the Plaintiff had previously paid rent at the rate of Rs. 40 per month. Therefore, it cannot be said to be a case of non-consideration of evidence by the lower appellate Court merely because the lower appellate Court did not specifically mention some particular portions of the testimonies of the Plaintiff''s witnesses as done by the trial Court. Sitting in the Second Appeal, I am unable to say that the finding of the lower appellate Court is perverse or vitiated by error of law. Merely because regarding the rate of rent another view was possible or probable will not warrant interference with the finding of the lower appellate Court regarding the rate of rent. Therefore, I am unable to interfere with the finding that the rate of rent was Rs. 40 per month.

Mr. Chakravorty contended that in the instant case the summons of the suit was served on November 14, 1965 and on December 13, 1965, the Defendant filed an application in the trial Court regarding the rent payable for the suit premises. Mr. Chakravorty submitted that the said application dated December 13, 1965, should be treated as one u/s 17(2) of the West Bengal Premises Tenancy Act as the same raised dispute about arrear of rent and the rate of the rent payable. The said application also, according to Mr. Chakravorty, contained an implied prayer for determination of the dispute. The trial Court did not determine the dispute but had merely permitted the Defendant to deposit current rent (vide Order No. 3 dated December 13, 1965). Mr. Chakravorty has prayed that in the circumstances the matter ought to be remitted to the trial Court for determination of dispute so as to enable the Defendant to get an opportunity to deposit the arrear rents and claimed relief in Sub-section (4) of Section 17 of the West Bengal Premises Tenancy Act. Mr. Chakravorty has placed strong reliance upon the judgment of S.K. Datta J, in Biswanath Chatterjee Vs. Ajit Kumar Sarkar, and has urged that the law laid down in the said case is applicable also in the instant case.

S.K. Datta J. in Biswanath Chatterjee Vs. Ajit Kumar Sarkar, , held that the application by the Defendant tenant although purported to be made u/s 17(1) was in substance u/s 17(2). According to S.K. Datta J., a dispute was implicit in the said application and the same having been raised by the Defendant the trial Court erred in not passing any appropriate orders on the said application before passing a decree on the ground of default. The Division Bench in Gunwantrai v. Satyanarayan 75 C.W.N. 372, considered the same question and laid down certain tests for deciding whether an application of the Defendant tenant u/s 17(1) should be treated as one u/s 17(2) raising dispute about the amount of arrears. He had clearly asserted that the Defendant had deposited in the office of the Rent Controller the entire sum due and payable to the Plaintiff landlord upto the month of October 1965. Hence, the Defendant was not liable to be ejected. Both in the body of the application and also in the prayer portion thereof the Defendant has prayed that he may be permitted to deposit Rs. 30 towards rent of November 1965 and also rent for each subsequent months. The prayer of the said application was as follows:

I am unable to agree with the submission made on behalf of the learned Advocate for the Appellant that the said prayer, either expressly or by implication, contained any prayer for determination of the dispute about the amount of arrears. The division Bench in Gunwantrai v. Satyanarayan (Supra) clearly indicated that there must be such a prayer for determination, either expressly or by implication. According to their Lordships, even an omnibus prayer would be sufficient to raise a dispute within the meaning of Section 17(2). In Biswanath v. Ajit Kumar Sarkar (Supra) S.K. Datta J., upon a construction of the application u/s 17(1) filed in the said case, held:

In Gunwantrai''s case, the Court did not accept the application as being in substance one u/s 17(2), as the said application was merely one for deposit and there was no omnibus prayer to the Court for passing such other or further orders as would be deemed fit and proper. In the present case, against the background of the plaint case that the Defendant was a defaulter, there was a positive statement that all rent from November 1966 had been duly deposited with the Rent Controller.

Although, in the instant case, the application dated December 13, 1965, there was a positive statement that all rents upto November 1965 had been deposited, there was no prayer even to the effect, "such order or further orders as would be deemed fit and proper". Therefore, this case is distinguishable from the case decided by S.K. Datta J. in Biswanath Chatterjee v. Ajit Kumar Sarkar (Supra) 56, para. 13. In the instant case, the application dated December 13, 1965, was merely for permission to deposit current rent without any prayer to the Court for determination of dispute within the meaning of Section 17(2). In the result, the trial Court did not commit any error by not proceeding u/s 17(2) of the West Bengal Premises Tenancy Act. The Defendant tenant not having deposited the arrear rent u/s 17(1) and not having raised any dispute u/s 17(2) cannot now urge that he is entitled to relief u/s 17(4) of the Act. In the result the appeal fails. I, therefore, dismiss this appeal.

There will be no order as to costs.

The Appellant is, however, granted time till December 31, 1976, to vacate the suit premises subject to his depositing in the trial Court a sum of Rs. 40 per month within 15th day of each succeeding month according to English calendar. If the said deposit be made the Plaintiff-Respondent will be entitled to withdraw the same without prejudice and without security. In case of default in payment of rent for two consecutive months, the decree shall become executable at once.