Monomohan Dutta vs Sm. Uttama Datta

P.N. Mookerjee, J.—This second appeal is by the tenant defendant. It arises out of a suit for ejectment and raises a very short question. The suit was instituted on the ground of default in payment of rent under the West Bengal Premises Tenancy Act, 1956. The defence was that the tetnant was not. a defaulter; in any event, not a defaulter to the extent, alleged by the plaintiff landlord. There was thus dispute on the question of amount of rent, payable within the meaning of the unamended Section 17(2) of the original West Bengal Premises Tenancy Act, 1956, which would be the statutory provision, applicable in the instant case, the suit having been instituted in August 1958, and the said statutory provision having been amended into the new Section 17(2) only in February 1960. This was held in the decision of this Court, reported in (1), Sk. Fazluddin v. Sm. Zubeida Khanam, 66 CWN 849. That decision also laid down that, in such. circumstances, it was the duty of the court, irrespective of any application by the party, to consider the matter under the said statutory provision (old Section 17(2)) and to proceed thereunder in accordance with law before disposing of or deciding the suit. The same view was taken in several subsequent unreported decisions of this Court namely (2) Hemraj Brahma v. Sanat Kumar Sen, F.A. 255 of 1961, (3) Sundaram Patwari v. Chu-nnilal Jessapuria, F.A. 465 of 1961 and (4) Somnath Tewari v. Lakshman Prasad Bagaria, F.A. 204 of 1962 and the reported decisions in (5) Biswanath Roy v. Annapurna Roy, 65 CWN 149, (6) Mahananda Dutta & Co. (P.) Ltd. v. Vma Charan Law & ors., 68, CWN 179 and (7) Krity Basu v. Peary Mohan Sarkar & anr. 74 CWN 42.

On the above view of law, there is no question that the instant decree for ejectment passed by the learned trial Judge and affirmed by the Court of Appeal below should be set aside and the matter should be remitted to the learned trial judge for consideration of the question under the original or un-amended Section 17 (2) of the above Act and for disposal of the suit in accordance with law thereafter in the light of the above decisions.

We may add that, whatever the period of the petitioner''s default, he will not be hit, in the instant case, by the proviso to sub-section (4) of Section 17, as it now stands, the said provision having been amended by the President''s Act 4 of 1968 in terms, which would keep the appellant out of the mischief of the said statutory provision. This will dispose of the appellant petitioner''s connected application.

We would, accordingly, allow this appeal, set aside the decrees of the two Courts below and send back the matter to the learned Trial Judge for further consideration in accordance with law in the light of the observations, made hereinbefore.

There will be no order for costs in this appeal; other costs will be in the discretion of the learned trial Judge, when he finally disposes of the matter.

Amiya Kumar Mookerji, J.

I agree.