Parameswari Devi vs Nandlal Saraf

Chakrabarti, J.—This application, u/s 115 of the Code of Civil Procedure, is directed against an order passed by the learned Judge, 4th Bench of the City Civil Court, Calcutta, u/s 17(3) of the West Bengal Premises Tenancy Act, 1956, striking out the tenants'' defence against delivery of possession in a suit for ejectment.

The facts of the case, briefly stated, are these: The Petitioners are tenants in respect of premises No. 138 Cotton Street under the opposite parties 1 and 2. The contractual rent for the tenancy was Rs. 550 per month. On December 18, 1956, the predecessor-in-interest of the Petitioners applied to the Rent Controller for the fixation of a fair rent. On July 7, 1959, the Rent Controller fixed the fair rent at Rs. 250 per month with effect from June, 1957. The tenant having paid rent at the contractual rate of Rs. 550 per month upto June, 1959, there was an excess payment at the rate of Rs. 300 per month from January, 1957 to June, 1959. The excess payment was adjusted against rent due from July, 1959 to June, 1962. Thereafter from July, 1962, the Petitioners went on paying rent at the rate of Rs. 250 per month.

The then landlord, that is to say, the predecessor-in interest of the opposite parties 1 and 2, appealed against the order of the Rent Controller fixing the fair rent at Rs. 250 per month. The appeal having failed, the landlord moved the High Court under Article 227 of the Constitution against the orders of the appellate authority and the Rent Controller. On September 10, 1963, the High Court set aside the orders of the appellate authority and the Rent Controller and remanded the case to the Rent Controller for a fresh decision. On February 18, 1965, the Rent Controller refixed the fair rent at Rs. 550 per month. The opposite parties 1 and 2 purchased the interest of the previous landlord in July, 1962 and thereafter they instituted a suit for ejectment against the Petitioners in the City Civil Court, Calcutta. This suit was withdrawn on August 9, 1965,. Thereafter, the present suit for ejectment was instituted on November 1, 1965, on various grounds including that of default. In the plaint it was stated that the Defendants were defaulters since January 1957. The date of service of summons was November 17, 1965. On December 1, 1965, the Petitioner No. 3 entered appearance and on December 15, 1965, he filed an application stating that rent at the rate of Rs. 250 per month had been paid upto October, 1965 and praying for permission to deposit rent in Court at the same rate from November 1965. The Court ordered that the Petitioner might make the deposit as prayed for by him at his own risk. The opposite parties 1 and 2, that is to say, the Plaintiffs of the suit filed an application u/s 17(3) of the West Bengal Premises Tenancy Act, 1956, praying for the striking out of the defence of the Defendants against delivery of possession on the ground that they, having deposited rent at the rate of Rs. 250 per month even after the refixation of the fair rent at Rs. 550 per month, had made short deposits and that they, not having deposited the deficits after the institution of the suit, have failed to comply with the provisions of Section 17(1) of the Article The Defendants opposed the petition contending, inter alia, that the rent last paid being at the rate of Rs. 250 per month, the deposits made by them after the institution of the suit were in conformity with the provisions of Section 17(1) of the Act and that that being so there was no ground for striking out the defence u/s 17(3).

The learned trial Judge did not accept this contention of the Defendants. He held that the fair rent of the tenancy having been fixed by the Rent Controller at Rs. 550 per month, the Defendants ought to have made the deposits at that rate. He made the following observations in his judgment:

As it will be seen from what is already stated that at the date of the institution of the suit the order of the Rent Controller that was in force, was the order fixing rent at the rate of Rs. 550 per month. In fact the former order of the Rent Controller fixing rent at Rs. 250 per month had been set aside by the High Court by the order dated September 10, 1963, but even in spite of this order the Defendant has been depositing the rent at the rate of Rs. 250 per month. The phrase ''rent at the rate last paid'' means such rent fixed by the Rent Controller as was in force with reference to a date within a month from the date of the service of the summons in the present suit. So rent at the rate last paid was Rs. 550 per month and not Rs. 250 as being deposited by the Defendants as contended by the learned lawyer for the Defendants. The Defendants, therefore, having not complied with the terms of Section 17(2) the defence against delivery of possession is liable to be struck out.

It is against this order of the learned Judge, City Civil Court, that the present revisional application has been made.

The points urged before us are twofold. The first point is that the petition that was filed by the Petitioner No. 3 on December 15, 1965, in the trial Court was in substance one u/s 17(2) of the West Bengal Premises Tenancy Act; and that the trial Court could not have in law struck out the defence against delivery of possession without passing an appropriate order thereon specifying the amount due from the tenants and giving them such time as is prescribed by law to deposit the money in Court. The second point of the Petitioners is that the Court below was wrong in interpreting the words ''last paid'' as occurring in Section 17(1) of the Act to mean what was ''legally payable'' under the rent fixation order of the Rent Controller.

As regards the first point of the Petitioner it is to be noted that in the petition in question it was specifically stated that the petition was one under Sub-section (1) of Section 17. By this petition the Petitioner No. 3 prayed for permission to deposit in Court rent at the rate at which it was last paid i.e. at the rate of Rs. 250 per month. But Sub-section (1) of Section 17 does not require that any permission has to be taken or that any application has to be made in that behalf. Sri H.P. Mukherjee appearing for the opposite party pointed to certain provisions of the Civil Rules and Orders in order to show therefrom that if a party to any proceeding wanted to deposit any money in Court it was incumbent upon him to make an application to the Court for the purpose. But a tenant against whom an ejectment suit has been brought has a statutory obligation to deposit the arrears u/s 17(1) and the penal consequence provided in Section 17(3) would follow if the deposit is not made. There is, therefore, no scope for the Court to exercise any discretion as to whether the tenant should be permitted to make the deposit or not. The provision of the Civil Rules and Orders referred to by the learned Advocate for the opposite party cannot obviously apply to the deposits which are required to be made under Sub-section (1) of Section 17.

While it is not necessary to file any application for making deposits under Sub-section (1) of Section 17, it is, however, necessary to do so under Sub-section (2) when there is any dispute regarding the amount of rent payable. In the petition in question it was not, however, stated that there was any such dispute. But as a matter of fact there was a dispute. According to the opposite party the deposits were to be made at the rate of Rs. 550 per month while according to the Petitioners they were to be made at the rate of Rs. 250 per month; then again according to the opposite party the arrears to be deposited were to be calculated from January, 1957, while according to the Petitioners they were not bound to deposit any amount in respect of the period previous to July, 1962, when the opposite parties purchased the premises in question. This is certainly a dispute within the meaning of Sub-section (2) of Section 17.

Along with this fact of existence of a dispute regarding the amount of rents payable we find that there was some indication in the petition that the Petitioner No. 3 wanted the Court to determine this dispute. In the concluding portion of the petition the following prayer was added:

and such other and further order or orders as to the rent payable may be passed as your honour may deem fit and proper.

It is, therefore, quite evident that the petition was intended to be one under Sub-section (2) of Section 17. The reference to Sub-section (1) was incorrect and inappropriate. It is the substance of the petition and not its form that has to be looked into. It was brought to our notice that in some unreported decisions of this Court viz. the decisions in Khandakar Masudal Haque v. Towhidan Nabi Tarafdar Unreported decision of Chatterjee, J. in Civil Revision 1110 of 1962 dated 27.11.62, Amiya Kumar Banerjee v. Bimalendu Bose Unreported decision of Chatterjee and Gupta, JJ. in Civil Revision 2322 of 1963 dated 7.1.65 and Krisna Devi Kejriwal v. Krisna Gopal Dewar Unreported decision of A.C. Sen, J. in Civil Revision 1727 of 1962 dated 7.5.63, similar petitions, that is to say, petitions containing merely a prayer for permission to deposit were held to be petitions under Sub-section (2) of Section 17 on the ground that some dispute regarding rent did in fact exist. The instant case is a stronger one, for here we find that the petition does contain a prayer for a direction from the Court regarding the rent payable. We, there fore, hold that the petition was one under Sub-section (2) of Section 17 and that the trial Court should have treated it as such. The trial Court''s order that the Petitioner might deposit the money at his own risk was not an appropriate order under Sub-section (2) of Section 17. The petition, in the circumstances, should be deemed to have remained undisposed of uptil now. The Court had no jurisdiction to strike out under Sub-section (3) the tenant''s defence when his petition under Sub-section (2) remained pending. The order being without jurisdiction cannot be allowed to stand.

The point that no order under Sub-section (3) striking out the defence could be made while an application under Sub-section (2) was pending was not, of course, taken in the Court below. So a question may arise whether in the circumstances we can in the exercise of our revisional jurisdiction u/s 115 of the CPC entertain the point. In M. Dutt and Co. v. U.C. Law (1963) 68 C.W.N. 179, this question was considered and it was held

It is hardly arguable that a point which goes to the root of Court''s jurisdiction, cannot be taken in a revision application if the said point has not been urged in the trial Court. That will practically nullify the revisional powers of the High Court in appropriate cases.

So that disposes of the question raised above and there cannot be any doubt that we can entertain the objection even though it was not taken in the trial Court.

As regards the second point urged by the Petitioners admittedly there was no payment of rent at the rate of Rs. 550 per month after July, 1959, when the earlier order of the Rent Controller was passed fixing the fair rent at Rs. 250 per month. The Petitioners went on depositing rent at the rate of Rs. 250 per month even after the fair rent had been refixed at Rs. 550 per month. The last de posit prior to the suit was made in October, 1965 and that was also at the rate of Rs. 250 per month. The trial Court, however, ignored this fact and held that the last payment should be taken to have been at the rate of Rs. 550 per month as the fair rent had been fixed at that rate before the institution of the suit. Sri H.P. Mukherjee for the opposite parties tried to support the view of the trial Court by relying upon a decision of this Court in Ahmed Ali Khan v. Ivy Clair N. Buksh (1960) 64 C.W.N. 391. It was held there that when the rent has been standardized before or during the pendency of a suit for ejectment, the Court may, on its attention being drawn to that fact, determine under Sub-section (2) of Section 17 the rent payable at the standardized figure notwithstanding the provisions of Sub-section (1) of that section. There is nothing in this decision however, as to how the term ''last paid'' occurring in Sub-section (1) of Section 17 is to be interpreted. Sri Chittatosh Mukherjee appearing for the Petitioners referred to another decision of this Court viz. Bijay Singh Nahata v. Mohanlal Chaudhuri (1953) 58 C.W.N. 777, which is directly concerned with interpretation of the term ''last paid''. It was held in that case that the word ''paid'' in its natural meaning is quite different from ''payable'' and that in determining the rate at which the rent was ''last paid'' what is to be ascertained is the rate of the last actual payment or the last deposit. But it should be noted that this was a decision u/s 14(4) of the Act of 1950. We refrain from expressing any opinion as to how far this decision can be taken as an authority for interpreting similar terms occurring in Section 17(1) of the current Act. We do not consider it necessary to do so as we are going to set aside the order of the trial Court on the first point taken by the Petitioner.

In the result, we set aside the order of the trial Court striking out the Petitioners'' defence against delivery of possession and direct it to dispose of the application filed by the Petitioner No. 3 on December 15, 1965, treating the same as application u/s 17(2) before passing any order on the opposite parties'' petition u/s 17(3).

We cannot help observing here that much of the confusion could have been avoided if the petition dated December 15, 1965, were a little more carefully drafted or at any rate if the Petitioners had pressed before the trial Court for an order u/s 17(2) when the landlords'' petition u/s 17(3) was being heard. In the circumstances we feel that we should award some costs against the Petitioners while allowing their application and granting them the relief prayed for by them.

The rule is, therefore, made absolute with costs payable by the Petitioners, hearing fee being assessed at six gold mohurs. The records may be sent down at once.

A.C. Sen, J.

I agree.