Saroj Kumar Kundu vs Lina Saha

Arun K. Mukherjea, J.—This is a tenant''s appeal against a judgment and decree of eviction passed by the learned Judge, Eighth Bench, City Civil Court, Calcutta, dated September 10, 1966.

The short facts of the case are as follows: The Appellant was a tenant under the Plaintiff Respondent in respect of a flat on the ground floor of premises No. 144 B. K. Paul Avenue, Calcutta, at Rs. 130 per month payable according to the English calendar month. The Plaintiff alleged that the Defendant had defaulted in payment of rent since August 1965. A notice u/s 106 of the Transfer of Property Act terminating the tenancy was served upon the Defendant by the Plaintiff. The Defendant filed a written statement challenging the validity of the notice and also contesting the allegation that he had been a defaulter in payment of rent. It appears, however, that the Defendant failed to deposit within one month of the service of the writ of summons on him the amount of rent for the period of default as required u/s 17 of the West Bengal Premises Tenancy Act (hereinafter referred to as ''the Act''). On May 26, 1966, the Defendant made an application before the learned Judge of the City Civil Court asking for permission "to deposit in the Court rent for the period of January 1966 to May 1966, that is to say, for five months at the rate of Rs. 130 per month" together with interest at the rate of 8 1/3 per cent per annum. The Defendant also asked for permission to deposit rent for succeeding months, month by month, by the 15th day of each succeeding month with the Court''s cashier. This petition is described by the Defendant as a petition u/s 17(1) of the West Bengal Premises Tenancy Act, 1956. The deposit for which the Defendant asked for permission and which the Defendant in fact made, does not cover the entire period for which a default has been alleged in the plaint. Subsequently on August 27, 1966, the Defendant made another application u/s 17(2) of the Act. In that application for the first time the Defendant made a claim that he was not a defaulter in payment of rent and that the allegations in the plaint as to default in payment of rent were false. The Defendant claims in that petition that he had paid rent to the Plaintiff from August 1965 to October 1965, but the Plaintiff had not granted any receipts with an ulterior motive. The Defendant further states in that application that from January 1966 to May 1966 he had deposited rents with interest at the rate of 8 1/3 per cent per annum to the extent of Rs. 660 on May 26,1966. This petition was not filed within the time prescribed for an application to be made u/s 17(2) of the Act Thereafter the Plaintiff made an application u/s 17(3) of the Act for striking out of the defence of the Defendant against delivery of possession on the ground that he had failed to pay to the Plaintiff or to deposit in Court the amount in default beginning from the month of August 1965 together with statutory interest within the stipulated period. The learned trial Judge allowed the application of the Plaintiff and struck off the Defendant''s defence by. an order dated August 27, 1966. Thereafter, the suit was heard on September 8,1966. The Plaintiff adduced evidence to prove that the notice of ejectment had'' been properly served on the Defendant. The Defendant was allowed to produce evidence with regard to the service of notice but was debarred from producing any evidence in support of his defence in the written statement against delivery of possession. The learned trial Judge thereafter gave a judgment on September 10,1966, in favour of the Plaintiff. The Defendant has now come on appeal against that judgment and decree.

The only point urged by Mr. N.R. Biswas, the learned Advocate on behalf of the Appellant, is that the application u/s 17(1) of the Act which had been made by the Defendant on May 26,1966, should be treated as an application u/s 17(2) of the Act. He argued that the Defendant had asked for permission to deposit rent for only those months for which the Defendant admitted default. He says this conclusion is implied by the fact that he asked for permission to pay rent only from January 1966 to May 1966. We are afraid we cannot accept Mr. Biswas argument for various reasons. The application u/s 17(1) describes itself as an application u/s 17(1). It is true that this description of the application would not be conclusive in the matter and that it may be possible for an application which is apparently u/s 17(1) to be treated as an application u/s 17(2) so long as there is substantial compliance with the requirements of Section 17(2) of the Act. The present application, however, does not even remotely comply with the requirements of Section 17(2). For one thing it does not mention any dispute, and for another it does not ask the Court to determine that dispute. There are two essential elements of Section 17(2) of the Act. Section 17(2) expressly says that no deposit is to be accepted unless there is an application for determination of the rent payable. There is no such prayer in the present application. There is no whisper of a'' dispute either. The fact that the Defendant on a subsequent occasion makes an application u/s 17(2) of the Act and does not even in that application make out a case that his earlier application was intended to be under both Section 17(1) and 17(2) of the Act is also, to our mind, significant in this connection; Our attention has been drawn to a judgment of a Division Bench presided over by P. N. Mookerjee J. in Gunwantrai T. Kamdar v. Satyanarayan Jhunjbunwalla (1970) 75 C.W.N. 872 in which their Lordships were asked to treat a similar application u/s 17(1) as an application u/s 17(2). Their Lordships analyzed the petition u/s 17(1) in that case and found that the requirements of Section 17(2) were not satisfied by the petition. Such requirements, according to their Lordships, are as follows:

(i) that there must be a dispute raised as to the amount of rent payable;

(ii) that the tenant must, for purposes of the said section, make deposit of all the admitted arrears within the statutory period;

(iii) and this is very important�that the said deposit, if any, must be made along with an application, praying for determination of the (amount of) rent payable,.

Their Lordships in that case rejected the tenants prayer on the ground that his petition did not comply with the essential requirements of Section 17(2) of the Act. In this view of the matter, there is no substance in this contention of Mr. Biswas. No other point was pressed before us.

In these circumstances, the appeal is dismissed and the judgment and decree of the Court below are affirmed. In the circumstances of the case, we make no order as to costs.

M.M. Dutt, J.

I agree.