Shankarlal Keriwal Alias Sharma vs Moolchand Prosad and Others

S.N. Sanyal, J.—This is an application u/s 115 of the CPC against the order dated August 5.1980 passed by the learned Munsif, 1st Court, Asansol in title Suit no. 10 of 1976, disposing of the applications filed by the petitioner, who was defendant no. 1 In the suit, under, sub-sections (2) and (2A) of section 17 of the West Bengal Premises Tenancy Act (hereinafter referred to as the Act). The opposite parties nos. 1 and 2 institute the suit on January 6, 1976 against the petitioner and opposite party no. 3 for ejectment on the allegation that the opposite parties 1 and 2 are the owners of the suit premises and the petitioner was a tenant on a monthly rental of Rs. 94/-. It was further alleged that the petitioner had left Asansol after assigning, transferring or sub-letting the suit premises to defendant no 2 (opposite party no. 3 In the present Rule). The petitioner had also defatted payment of monthly rent since November 1972. The petitioner entered appearance on September 14.1976 and filed applications under sub sections (1), (2) and (2A) of the Act. in the application u/s 17(1) of the Act the petitioner preyed for permission of the Court to deposit tent of the premises for the month of August 1976 and also for subsequent months. In the application u/s 17(2) the petitioner contended that there was no relationship of landlord and tenant between the plaintiffs and the petitioner. The petitioner was a tenant under Moolchand Prasad Lal Chand Prasad, a firm, in respect of the suit premises on a monthly rental of Rs. 94/- payable according to English calendar month. The petitioner alleged that the rents upto March 1975 had been amicably paid, but no receipt had been granted by the landlord. It was further contended by the petitioner that the rent for the month of 1975 was tendered; but as there refusal to grant proper receipt, the petitioner deposited the rent with the Rent Controller from April 1975 till July 1976. The petitioner prayed for determination of arrear rent payable, if any. In the application u/s 17(2A) of the Act the petitioner submitted that if any rent was found in arrear, the petitioner was not in a position to pay the same at a time and as such, permission may be granted to deposit the said amount-by instalments. All the applications were opposed by the plaintiffs.

The learned Munsif after hearing the parties and considering the meters on record held that the petitioner was a tenant under the plaintiffs. The learned munsif disbelieved the petitioner''s contention that the rent upto March 1975 had been paid. The learned Munsif came to the finding that the petitioner was defaulter in payment of rent since November 1972. As regards the deposit with the Rent Controller, the Learned Munsif held that there was no valid tender and thus the deposits with the Rent Controller from April 1975 to July 1976 were invalid. The petitioner deposited the rent in Court from August 1976. The learned Munsif held that all the deposits except for the month of September 1977 were valid. The learned Munsif thus found that the sum of Rs. 4,224/- was the amount payable by the petitioner as arrears of rent for 46 months, that is, from November 1972 to July 1976 and also for the month of September 1977. Statutory interest was calculated as Rs. 2080/-. The learned Munsif directed the petitioner to deposit the sum of Rs. 6,404/-by March 1981. Relying upon the decision in 1977 (2) CLJ 327 the reamed Munsif held that the provisions of section 17(2A) of the Act cannot be invoked while disposing of application u/s 17(2) of the Act. According to the learned Munsif, the petitioner was not entitled to deposit the amount by monthly instalment.

Mr. Banerjee, learned Advocate for the petitioner, has argued that there was error in calculation of the interest. The contention of Mr. Banerjee is that the interest cannot be as high as Rs. 2080/-. According to Mr. Banerjee, the interest payable is Rs. 715/-. The next contention of Mr. Banerjee is that the learned Munsif was wrong in holding that tender can only be made by money order. The rent may be tendered personally and the same would be valid if it is made within time. Mr. Banerjee argues that as the tender was valid, the deposits the Rent Controller from April 1975 to July 1976 were all valid deposits and the petitioner is entitled to have the amount deducted from the arrears found by the learned Munsif. The main contention of Mr. Banerjee is that the learned Munsif acted illegally and with material irregularity in rejecting the petitioner''s prayer for payment of the amount by instalments. Mr. Banerjee argues that the petitioner is entitled to the benefit of section 17(2A) of the Act, even though he bad filed an application u/s 17(2) of the Act. Mr. Banerjee submits that in view of the unreported decision of the Supreme Court in the case of Ashok Ghose V. Smt. Dev Bala Devi (Civil Appeal no. 6960 of 1983) disposed of on September 5.1983, the decision of this Court in the case of P. N. Sanyal V. Hara Prasad Sarkar and ors. 1977(2) CLJ 323 is no longer good law. The petitioner is entitled to instalment and the learned Munsif was wrong in rejecting the said prayer. The contention of Mr. Banerjee is that there was thus jurisdictional error on the part of the learned Munsif and the order of the learned Munsif cannot be allowed to stand.

Miss Chaturvedi, learned Advocate for the opposite parties nos. 1 and 2, has submitted that the petitioner contended that there was no relationship of landlord and tenant between him and the plaintiffs and he was a tenant under the firm. This contention of the petitioner has been negatived by the learned Court below and the petitioner has not challenged the said finding here. The finding of the teamed Munsif that the petitioner is a tenant of the opposite parties 1 and 2 and not under a term, cannot thus be assailed in the present Rule Miss Chaturvedi has further argued that the tender of rent has not been proved and the learned Munsif was correct in holding that the deposits with the Rent controller were invalid. Referring to the case of Manickchand Durgaprosad and Bros. Vs. Balukidas Baheti, Miss Chaturvedi has argued that as the deposits with the Rent Controller were not preceded by valid tender, the said deposits are invalid. In this decision It has been held that it is only when the deposit is made. In the prescribed manner and also in the circumstances specified in section 21 of the Act that the deposit is a valid deposit and can be treated as a deposit of rent. Miss Chaturvedi has argued that in the case of determination u/s 17(2) of the Act about the amount payable by the tenant the statutory interest should also be included. In support of her contention Miss Chaturvedi has referred to the case of Dwarka Prosad Sharma V. J. N. Neogi, 88 CWN 331. Miss Chaturvedi has also referred to the case of Bhagaban Shaw V. Sm. Simmi Goyal, 1978(2) CLJ 254. In this case it has been held that if a dispute as to the amount payable is raised by the tenant under sub-section (2), there is no further scope for any steps being taken under the first part of sub section (1). In making the application under sub-section (2), the tenant is required to deposit or pay the amount admitted by him to be due from him. Under sub-section (2A), clause (a) the court can grant an extension of time for payment of such admitted amount on the application of the tenant, but it has no further power in law to grant instalments in a case where sub-section (1) of section 17 is attracted.

There is no dispute regarding the rate of rent. The contention raised by the petitioner about the relationship of landlord and tenant was decided by the learned court below. The learned Munsif has found that the petitioner was a tenant under the plaintiffs and not under the firm. The learned Munsif has further determined, the amount in arrears and also the interest. After consideration of the evidence on record the learned Munsif held that there was no valid tender. Going through the order of the learned Munsif I do not agree with Mr. Banerjee that the learned Munsif was of opinion that the only mode of tender was by money order. The learned Munsif has considered the evidence of P. W. 1 (Plaintiff no. 1) about the dental of the tender. The learned Munsif has merely observed that the defendant before depositing rent with Rent Controller should have tendered rent by money order to avoid such denial or complication. He has held the tender to be invalid, because it was not proved.

The main question is regarding the calculation of the interest and the point whether the petitioner was entitled to Instalments under sub-section (2A) of section 17 of the Act after disposal of the application u/s 17(2) of the Act. In the unreported decision of the Supreme Court in Civil Appeal no. 6960 of 1983 (Ashok Ghose V. Smt. Dav Bala Devi) the Supreme Court considered the scheme of section 17 of the Act. It has been held that the scheme of sec. 17 clearly shows where as suit is filed for eviction on the ground of non-payment of rent, it is incumbent upon the tenant to deposit the rent in arrears either within one month from the date of the service of writ of summons or where the tenant appears in the suit without a writ of summons- being served upon him within one month from the date of his appearance. But this obligation imposed by section 17(1) is subject to the provision of subsection (2) of section 17 which provides that if there is a dispute as to the amount of rent payable by the tenant, an application has to be made to the Court within the time prescribed in sub-section (1). On such an application being made, the Court has to make a preliminary order specifying the amount, if any, due from the tenant. Sub-section (2A) confers powers on the court to grant the benefit of payment of rant in arrears by instalments. The scheme that emerges from a combined reading of sections 17(1), (2), (2A) and (3) is to the effect that where the amount of rent in arrears is not in dispute, the tenant in order to obtain the benefit of protection against eviction must comply with sub-sec. (1) which requires the tenant to deposit the rent in arrears within one month from the date of the service of the writ of summons or where no such writ of summons is served on the tenant, within one month from the date of his appearance in Court However, if the amount of rent in arrears is in dispute, the tenant has to make an application within the time specified In sub section (1) to the court inviting the court to pass a preliminary order pending final decision of the dispute, specifying the amount, if any, due from the tenant end thereupon the tenant will have to deposit the amount specified in the preliminary order within one month from the date of the preliminary older. It may be that the. amount may be sufficiently large and in a given set of circumstances, the tenant may be economically handicapped; the tenant may be one who belongs to the economically handicapped class end may find it Clicquot to comply with the order within the prescribed time and therefore the legislature conferred power on the court under sub-sec. (2A) to grant amongst others the benefit of depositing the rent specified in the preliminary order by instalments as determined by the court. If the tenant fails to comply with the provisions contained in sub-sec. (1) or (2) or (2A), as the case may be, the consequence as provided in sob-sec. (3) may ensue. In view of the decision of the Supreme Court in Civil Appeal no. 6960 of 1983 it cannot be said that the provisions of sub-section (2A) of section 17 of the Act will not be attracted while disposing of the application u/s 17(2) of the Act. In the instant case the petitioner has not only filed the application u/s 17(2) but also an application u/s 17(2A) of the Act. Having regard to the circumstances, it appears that the petitioner''s applications under sections 17(2) and 17 (2A) of the Act should be sent back to the learned court below for hearing in accordance with law. The learned Munsif''s finding regarding the arrears of rent will stand. The learned Munsif will, however, consider the contention of the petitioner about incorrectnesss regarding calculation of interest. The learned Munsif will also consider the petitioner''s application u/s 17(2A) of the. Act in accordance with law. The applications under sections 17(2) and (2A) Of the Act are sent back to the learned court below for decision in accordance with law and in the light of the observations made in the judgment. The order of the learned Munsif is modeled accordingly.

The Rule is thus disposed of. There will be no order as to costs. Let the records be sent below forthwith.