Minati Basu vs Karuna Bala Dutta

Abani Mohan Sinha, J.—This Revisional application is directed against the judgment and order of the learned Munsif, Baruipur Second Court, striking out the defence against delivery of possession put forward by the Defendant, a tenant under the Plaintiff, who brought a suit for her eviction on the ground of default in payment of rent and also on the ground of reasonable requirement.

Before the petition u/s 17(3) of the West Bengal Premises Tenancy Act was taken up for hearing, the learned Munsif passed an order on the application of the Defendant-tenant to pay off or deposit the arrear rent by instalments and also the current rent month by month after the institution of the suit.

The Defendant-tenant defaulted in payment of such instalments and current rent since Shravan, 1393 B.S. as she fell ill in the month of Ashar preceding that. She filed an application for extension of time by 15 days for making the deposit. The learned Munsif rejected such application and did not grant an extension of time. Thereafter, on June 3, 1987, he took up the application u/s 17(3) filed by the Plaintiff for hearing. He found that the Defendant did not comply with the order passed by the Court u/s 17(2A) and that she defaulted in payment of rent and the installment since Shravan, 1393 B.S. Accordingly he allowed the application of the Plaintiff u/s 17(3) and struck out the, defence against delivery of possession put forward by the Defendant. Being aggrieved by such judgment and order, the Defendant has come up in Revision.

Mr. Bhattacharjee, learned Advocate representing the revisionist-Defendant has strenuously urged with the reference to the decision of the Supreme Court in B.P. Khemka Pvt. Ltd. Vs. Birendra Kumar Bhowmick and Another, and the Special Bench decision of our Court in Krishna Gopal Ghosal v. Mihir Baran Nandy and Ors. 1987 (2) C.L.J. 297 (S.B.) that the learned Court below should have considered the special circumstances and the penury and poverty of the Defendant and extended the time for making the deposit of rent which she defaulted to deposit.

Mr. Prabir Samanta representing the case of the opposite party/landlord, on the other hand, has drawn my attention to para. 7 of the Special Bench decision of our Court and submitted that it is a case of total non-payment of the dues and the arrear rent which covers pre and post suit dues of the landlord towards rent and the very decision relied upon by the learned Advocate for the revisionist would clearly indicate that the Court should not use its discretion in such a case, that is, in a case of total nonpayment. It is further submitted that the Court should also consider the conduct of the parties so as to deserve the exercise of discretion in his or her favour. In the present case, the Defendant-tenant had been in arrear of pre-suit rent and also in arrear of dues equivalent to rent in the post-suit period payable to the landlord in terms of Section 17(1) of the West Bengal Premises Tenancy Act. This period of default since rejection of her application u/s 151 and since striking out of her defence covered a period of four years. The learned Advocate appearing for the revisionist Petitioner has urged that the Defendant tenant could not make the deposit as her application for extension of time was rejected and after her defence was struck out in terms of Section 17(3) of the West Bengal Premises Tenancy Act. In my view, this argument is not acceptable. So far as pre-suit rent is concerned there might have been default in clearing of the burden of the arrear. But so far as post-suit period is concerned a Defendant-tenant is bound to deposit the sum equivalent to current rent every month regularly, in order to save himself or herself from the mischief of Section 17(3) of the Act or the risk of having his or her defence struck out.

On going through the decisions referred to above, I find that the Supreme Court as well as our High Court permit use of discretion but always in a deserving case and not in a case of total non-payment. So, considering all these I find no merit in this application which stands rejected.

The Revisional application is accordingly dismissed. All interim orders are vacated. There will be no order as to costs.

Let the order be communicated to the Court below expeditiously.