Satyendra Nath Dutta Chowdhury vs Asutosh Bhattachrya and Another

N.C. Mukherji, J.—This is an application u/s 115 of the Code and is directed against order No. 102 dated April 6, 1982 passed by Shri S. Banik, Munsif, First Additional Court, Al''ipore in Title Suit No. 273 of 1978. The opposite party No. 1 brought Title Suit No. 521 of 1976 against the petitioner for ejectment on the ground of default in payment of rent from July, 1976. Opposite Party No. 1 on August 18, 1981 filed an application u/s 17(3) of the West Bengal Premises Tenancy Act. The learned Munsif by his order no. 74 dated January 22, 19S1 was pleased to reject the same. On June 15, 1981 opposite party No. 1 again filed an application u/s 17(3) of the Act. The petitioner filed written objection to the aforesaid application. But the learned Munsif by the order, referred to above, allowed the application u/s 17(3) and hen of the present application. From order no. 74 dated 22.1.81 it appears that defendant No. 1 deposited the monthly rent in the name of the court. He did not deposit the rent in the name of the plaintiff. The defendant admitted that it was an inadvertent mistake. The court found that the defendant had n laches of his own and the court should not take hyper-technical view. The mistake could be rectified by a court''s order. In the circumstances, the court was of further opinion that for this mistake penal provision of Section 17(3) should not be invoked and as such the application u/s 17(3) was rejected. It was further ordered that the dispute regarding the relationship of landlord and tenant between the plaintiff and the defendant will be heard at the time of peremptory hearing of the suit. It was also directed that an issue should be framed on'' that point. Even after this order, the defendant deposited rent in the name of the Court and not in the name of the plaintiff. The defendant''s application under Sections 17f?) and 17 (2A) of the West Bengal Premiers Tenancy Act was disposed of have order No. 46 dated 6.3.80. In these petitions the defendant did not dispute the relationship between the parties. In evidence. the defendant admitted that the plaintiff was his landlord. It was stated that the defendant was inducted by Nirmal Ch. Bhattacharya at a monthly rent of Rs. 175|-. After Nirmal''s death, he has been paying rent to the plaintiff and was granted rent receipts by him. In the written statement also the defendant did not dispute the relationship of landlord and tenant. He only stated that the plaintiff was one of the owners of the suit property. In the petition of objection u/s 17(3) it has also been stated that the plaintiff is not the sole owner. The learned Munsif was right to say that ownership is not necessary to determine the question relating to relationship of landlord and tenant. When the defendant admits that he was inducted by the plaintiff''s predecessor and he was all along paying rent to the plaintiff''s predecessor and after his death, to the plaintiff it must be said that the relationship of landlord and tenant very much exists and in view of these assertions the defendant cannot be allowed to take up that plea.

With reeard to deposits, +he learned Munsif found that even after condonation on the previous occasion the defendant failed to pay rent to the plaintiff or deposit rent in the court in the name of the plaintiff. As such, the application u/s 17 (3) was allowed. Being arrieved by the aforesaid order, the defendant has come up to this Court.

Mr. Bhaskar Bhptapltarv" lamer Advocate apnenrinp on behalf of the petitioner, submits that according to the provisions u/s 17(1) of the Act the petitioner is entitled to deposit rent in Court and he has actually done so. In the section there is no provision that the defendant will have to deposit rent in the name of the plaintiff. I cannot agree with this submission

The words "deposit in court or with the Rent Controller or pay to the plaintiff" taken together mean that deposit in court or with the Rent Controller must be in the name of the plaintiff. It cannot be deposited in the name ci the court. Such deposits must be considered as invalid deposits. In this connection, Mr. Bhatta-charyya submits referring to the provisions in the Civil Rules & Orders that the Ministerial Officer scrutinised the challans and found no defect in the said challans and the same were passed. That means there was no defect, that was condoned when the challans were passed and such a condonation will be deemed to be a condonation by the court itself. I cannot also accept this submission of Mr. Bhattacharyya. On the previous occasions, the court was kind enough in not enforcing the penal provisions of Sec. 17 (3) and accepted the defendant''s plea that it was an inadvertent mistake. But, even after that, the defendant deposited rents not in the, name of the plaintiff but in'' the name of the court. This time, the learned court was quite justified in allowing the application under sec. 17 (3). I find no merit in the present application and the same is rejected. There will be, however no order for costs in this application.