Mahasukhrai Ramrich Pal vs Kishore Churn Law

P.N. Mookerjee, J.—This Rule was obtained by the Petitioner who was the tenant Defendant in the connected ejectment suit. In that suit, the defence of the Petitioner was struck out u/s 17(3)'' of the West Bengal Premises Tenancy Act, 1956, and thereafter the said suit was decreed.

The decree was passed ex parte on February 25, 1965, by the learned trial Judge. From the said ex parte decree the present Petitioner, who was the Defendant in the instant suit, as stated above, preferred an appeal. The said appeal was dismissed on August 24, 1965, and the decree of the learned trial Judge was affirmed. Thereafter, on August 24, 1965, the West Bengal Premises Tenancy (Amendment) Ordinance, 1965, was promulgated, and on September 17 following, that is, within the requisite period of sixty days, the Defendant filed his present application under the new Section 17A of the Act, which was introduced by the above amendment, and prayed for relief under the same, namely, for the setting aside of the order, striking out his defence, and also for the setting aside of the ex parte decree. To this application, the Respondent opposite party filed objection and, thereafter, the matter was heard by the learned trial Judge, and by his Order No. 51, dated April 25, 1966, the Defendant''s above application was rejected. Against this Order, the present Rule was obtained by the Defendant.

Two objections were taken to the Defendant''s above application, namely, (i) that the said application was not entertain able by the trial Court in which it was filed as, in the instant case, the trial Court''s decree for ejectment had been affirmed in appeal by the Appellate Court, and (ii) that, in no view, was the Defendant entitled to any relief u/s 17A of the West Bengal Premises Tenancy (Amendment) Act, as introduced by the above Ordinance, as he did riot come within the saving provision of the said new section.

Both the above objections were accepted by the learned trial Judge, and the Defendant''s application u/s 17A was dismissed.

So far as the first question is concerned, namely, whether the said application was entertain able by the learned trial Judge when the trial Court''s decree for ejectment had been affirmed on appeal by the Appellate Court, the point does not appear to be altogether free from difficulty, but, in the view which we are taking in the instant case, it will not be necessary for us to go into the said question. Even assuming that the said application was entertain able by the learned trial Judge in the present case, in our view, the Defendant''s claim for relief u/s 17A would fail on the merits in the facts and circumstances of this case. It is necessary for this purpose to quote the relevant statutory provisions, which will be applicable after the amendment introduced by the above Ordinance to the original Act. These provisions are contained in paras. 5 and 6 of the said Ordinance. Paragraph 5 is in these terms:

In Sub-section (1) of section 17 of the said Act.

(a) after the words "within one month of the service of the writ of summons on him", the words "or where he appears in the suit or proceeding without the writ of summons being served on him, within one month of his appearance" shall be inserted ; and

(b) for the words "deposit in Court or pay to the landlord", the words "deposit in Court or with the Controller or pay to the landlord" shall be, and shall be deemed always to have been, substituted.

After section 17 of the said Act, the following section shall be inserted, namely, 17A. (1) Where any decree or order for the recovery of possession of any premises has been made in a suit or proceeding in which the defence against delivery of possession was struck out by an order under Sub-section (3) of section 17, but the possession of such premises has not been recovered from the tenant by the execution of such decree or order, the tenant may make an application to the Court which made such decree or order within a period of sixty days from the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1965, for setting aside such decree or order.

(3) On receipt of an application under Sub-section (1), the Court shall cause notice thereof to be served on the landlord, and if after considering such evidence as the parties may adduce, (a) the Court is satisfied that the order striking out the defence against delivery, of possession would have been made in the suit or proceeding under Sub-section (3) of section 17 even if the West Bengal Premises Tenancy (Amendment) Act, 1965, had been in force on the date on which such order was made, the Court shall dismiss the application with such costs as the Court may award to the landlord.

In the present case, the defence was struck out under the old. 17(3) of the West Bengal Premises Tenancy Act, 1956, as the Defendant did not, after the institution of the suit and after service of lummons to him, make the necessary deposits in Court but deposited notices with the Rent Controller. To the extent that deposits with he Rent Controller in such circumstances were irrelevant under the old section, the position has been altered by the above amendment and deposits with the Rent Controller even after the institution of the suit and after service of summons on the Defendant, would be valid for purposes of the present Section 17(1) of the Act. This is clear from the amendment, made to the old Section 17(1) by para. 5(b) of the Ordinance, already quoted by us. It is important to note, however, that the time limit for such deposits, as contained in the original Section 17(1), namely, for the arrears, one month after service of summons, and for the recurring monthly deposits, within fifteen days of the next succeeding month according to the relative or relevant calendar, was left untouched. In the instant case, it is an admitted fact that the recurring monthly deposits for January to November 1964 with the Rent Controller were all beyond the above fifteen days'' period or time limit, applicable to the same. In such circumstances the conclusion is irresistible that, even if the amendment under the Ordinance had been in force at the date, when. the Defendant''s written statement was struck out, the said order, Striking out the written statement, would have been made and it would thus be quite a valid order. In the premises, in view of Section 17A, Sub-section (3), Clause (a), quoted above by us, the Defendant-Petitioner would not be entitled to any relief in the instant case, and, upon this ground, his. application u/s 17A would fail on the merits.

Mr. Mitter, appearing for the Defendant-Petitioner, asked us to construe the new Section 17(1) by reading the time limit for deposit, so far as the Rent Controller was concerned, as the same as in Section 22 of the Act with regard to the Rent Controller. For this purpose, he drew our attention to the history of this legislation by Ordinance and the necessity for it and also referred to the object and purpose of this amendment. The amendment, however, is so clear in its language that those considerations would not in our opinion, be at all relevant. The section, as it stands after the amendment, clearly recognizes deposits with the Rent Controller as valid for purposes of the section, but the time limit for such deposits has been rigidly maintained at the original periods. This clear language of the statute cannot be altered or affected by any other consideration on any conceivable and acceptable principle of statutory construction. We are, accordingly, unable to accept Mr. Mitter''s submission on this point.

In the above view, we discharge this Rule, but, in the circumstances, we make no order as to costs.

A.K. Dutt, J.

I agree.