Habul Chandra Mullick vs Jhimi Bajoria

N.C. Mukherjee, J.—This is an application u/s 115 of the CPC directed against an order passed by Sri S. Bagchi, Judge, City Civil Court, Calcutta, dismissing an application u/s 17D of the West Bengal Premises Tenancy Act.

The Plaintiff filed a suit for ejectment on the ground of default. The said suit was decreed by the Judge, City Civil Court. Being aggrieved the Defendant preferred an appeal before this Court. The appeal was dismissed on May 28, 1969. On an undertaking made by the Defendant, he was allowed time to vacate the premises by the end of May 1971. On January 10, 1970, the Petitioner filed an application u/s 17D(1)(A) of the West Bengal Premises Tenancy (Second Amendment) Act before the learned Judge, City Civil Court, for setting aside the decree. The learned Judge granted several adjournments for enabling the Petitioner to produce all necessary challans for the purpose of showing that the Petitioner was not in arrears. The Petitioner, however, produced a number of challans, but as some challans were missing he could not produce all. The learned Judge fixed December 14, 1971, as the date for producing the remaining challans and passed an order to the effect that in default the application would stand dismissed. The hearing of the application was fixed on January 6, 1972. As the Defendant could not produce the remaining challans by December 14, 1971, the application of the Petitioner was dismissed. It is submitted by Mr. Palit, the learned Advocate appearing on behalf of the Petitioner, that the learned Judge was wrong in dismissing the application. The learned Judge, according to. the provisions of the Act, was bound to determine the arrears, if any, and to direct the Defendant to deposit those arrears in Court within a certain specified time. It is true that the Defendant took several adjournments for producing the remaining challans, but even then the learned Judge ought not to have dismissed the application. Even in the absence of production of all the challans, the learned Judge was in a position to determine the arrears.

Mr. Lahiri, appearing on behalf of the opposite party, in the first place submits that as an appeal was preferred by the Petitioner in this Court and, as the said appeal has been dismissed,'' the original decree has been merged into the appellate decree and, that being so, the Defendant could, not have made an application before the trial Court. In support- of the contention Mr. Lahiri refers to a decision in Sm. Chandra Kala Devi and Others Vs. Central Bank of India Ltd., , but the decision referred to above is not really on the point at issue in the present case. Exactly on this point there is a decision in Ratan Lal Singh Vs. Gezer Bros. (P.) Ltd., . In this case it has been held--in case where the appellate Court merely dismisses the appeal, the principle of merger has no application and also in cases of execution of the original decree except as to limitation will not affect an executable decree passed by'' an inferior Court insofar as its execution is concerned. The position would be otherwise if the decree is modified or varied by such appellate authority as in such even the original decree Will be in executable. The Court in this Section 17D under its provision means the Court of the first instance and such Court is given powers not only to set aside the decree but also to dismiss the suit which is to follow as a matter of course. In case where the appellate Court dismisses the appeal against the decree for recovery of possession, such decree would be in fructuous in view of the dismissal, of the suit itself. In this connection reference may be made to the explanation of Section 17D. The explanation reads as follows:

Where the decree was passed in the exercise of appellate jurisdiction, the application under this Sub-section shall be made to the Court of first instance.

Relying on the provision of Section 17D and also the decision in Ratanlal Singh v. Jezer Bros. Put. Ltd. (Supra), I have no hesitation to hold that an application u/s 17D is to be made only before the trial Court.

Mr. Lahiri next contends that the present application is not maintainable as Section 17D provides that an application can be made whereas decree for recovery of possession was made in suit only on the ground referred to Section 13(l)(i). Section 13(l)(i) reads as follows:

Where the tenant has made a default in payment of rent for two months within a period of twelve months....

Mr. Lahiri contends that in the present case the default was for more than 4 months within a period of 12 months and, that being so, it cannot be said that the suit was only on the ground referred to in Section 13(l)(i). I do not agree with the submission made by Mr. Lahiri. Section 13 enumerates the grounds on which a suit for ejectment can be brought. Section 13(l)(i) provides that a landlord can bring a suit for ejectment if the tenant makes a default in payment of rent for 2 months within a period of 12 months. In a case where the tenant makes default for more than 12 months within a period of 12 months, in that case also the landlord brings a suit for ejectment u/s 13(l)(i). The other clauses refer to the other grounds on which the suit for ejectment can be brought by the landlord. That being so, it is clear that the present suit was brought only on the ground of default, that is, default in payment of rent u/s 13(l)(i) and, as such, it must be said that the application is maintainable.

Mr. Lahiri in the last place submits that in the appellate Court the Petitioner gave an undertaking that he would vacate the premises by the end of May 1971, and on that undertaking his Lordship allowed the Defendant to remain in the suit premises till the end of May 1971. In such circumstances it was not proper for the Defendant to file an application on January 10, 1970, u/s 17D(1)(A). Mr. Palit submits that, even if a consent decree was passed, such decree is no bar in making an application u/s 17D of the Act. To substantiate his point Mr. Palit refer, to a decision in Sm. Pratima Baul Vs. Indu Bhusan Banerjee, . His Lordship laid down--

in a case, where the Plaintiff prays for a decree for ejectment on the only ground of default and by consent a decree is passed, -that decree comes within the purview of Section 13(1)(i) of the Act and can be set aside u/s 17D of the Act.

Relying on this decision I find that consent decree passed by the appellate Court is no bar in making an application u/s 17D. All the contentions raised by Mr. Lahiri fail. The conditions laid down in Section 17D for the maintainability of an application have all been fulfilled in this case. It has already been pointed out that the learned Judge was under an obligation to dispose of the application and ought not to have dismissed, the same simply because the Petitioner could not produce certain challans.

In the result, the application succeeds. The Rule is made absolute. The order dismissing the application u/s 17D is set aside. The learned Judge is directed to dispose of the application in the light of the observations made, above. Records be sent down expeditiously.

There will be no order as to costs in this Rule.