Surendra Nath Gharui vs Ali Mohammad Mondal

P.N. Mookerjee, J.—This appeal is by the Defendant and it arises out of a suit for ejectment. The suit was instituted on September 19, 1957, and it is admittedly governed by the West Bengal Premises Tenancy Act, 1956.

Various grounds were taken under that Act for ejectment of the Defendant but the only ground, on which the Plaintiff succeeded in the trial Court and, also, in the lower appellate Court, was the ground of default.

Admittedly, the Defendant was a defaulter, at least, for five months, though he contended that this was a case of mere technical default. He was, however, a defaulter, technical or otherwise and, accordingly, he would be within the mischief of the Act. To wriggle out of this difficulty, the Defendant relied upon certain payments, made by him on account of municipal taxes and claimed set off or adjustment of the same against the above defaults. If the said payments could be taken into account for the above purpose, the default would, obviously, be wiped out but the difficulty that faces the Defendant there is that those payments were made by him voluntarily and, obviously, for voluntary payments, he cannot get any credit against the landlord''s claim of rent. The Defendant, then, would be under the liability of ejectment but, as a last resort, he requisitioned the help of Section 114 of the Transfer of Property Act for relief against forfeiture for non-payment of rent on principle, underlying the said section. He may, no doubt, receive some support in this respect from the decision of P.B. Mukharji, J., in Deo Chand Singh Vs. Shah Mohammad, , which broadly followed, on principle, the earlier decision of this Court, in Luxmi Spinning and Weaving Mills Ltd. Vs. Md. Ibrahim, Mutwalli, , although, in this last mentioned case, relief under that section was refused in the exercise of the Court''s discretion. The point, however, if I may say so with respect, is not altogether free from doubt (vide Mohammed Yusuf Vs. Ram Chandra Singh and Another, ) in the present case.

But or be that as it may, I do not feel called upon to consider the above abstract question of law or the question of exercise of my discretion under the said section, if it is otherwise applicable, as on the admitted materials before the Court, the Defendant, after entering appearance in the suit, did not for some months make any deposit of the monthly rent or monthly amount, as required u/s 17(1) of the West Bengal Premises Tenancy Act, 1956. That, obviously, brought him within the mischief of sub-Section (3) of the said Section 17 and his defence against ejectment or delivery of possession was liable to be struck out and, indeed, the Court on the express terms of the said sub-Section was bound to strike it out. In this view, I hold that no part of the said defence would be available to a Defendant and no question of relief u/s 114 of the Transfer of Property Act would arise, as that can be urged only as a part of the defence against ejectment.

I would, accordingly, dismiss this appeal but, in the circumstances of this case, I would grant the Appellant-Defendant time till the end of Aswin next in the first instance, to be enlarged to the end of Jaistha next, that is, Jaistha 1373 B.S. on an undertaking to be filed by him, in this Court, within three weeks from this date, to quit and vacate the disputed premises and deliver up vacant and peaceful possession of the same to the Plaintiff decree-holder within the aforesaid period, namely, end of Jaistha 1373 B.S. provided that, in either case, the Defendant-Appellant goes on depositing, in the trial Court, to the credit, of the decree-holder, a sum of Rs. 15 (Rupees fifteen) per month, month by month, regularly, according to the Bengali calender, on account of current mesne profits, within the 15th of the next succeeding month according to the same calender and, in case of any two defaults in this respect, the above provision for time or grace period, be it the longer or the shorter one, will automatically lapse and this decree for eviction will become executable at once.

Subject as above, this appeal fails and it is dismissed.

There will be no order for costs in this Court.