P K CHAKRABORTY Vs. JANARDAN ROY

JUDGEMENT

(1.) This Second Appeal is directed against the judgment and decree dated 15.6.2007 passed the learned Additional District Judge, Barrackpore, 24-Parganas (North) in Title Appeal No.5 of 2007, affirming the judgment and decree dated 22nd November, 2006 passed by the learned Civil Judge (Junior Division), 3rd Court at Sealdah in T.S. No.40 of 2001.

(2.) The learned Trial Judge held that the defendant is admittedly a defaulter in payment of rent since August, 2000 and since he has neither complied with the provision of Section 17(1) nor he has complied with the provision of Section 17(2) of the West Bengal Premises Tenancy Act, 1956, he is not entitled to get any protection under Section 17(4) of the said Act. Accordingly, an eviction decree was passed against the defendant on the ground of default in payment of rent. The defendant was aggrieved by the said order. Hence, he preferred an appeal before the learned Appeal Court. The learned Appeal Court also approved the said finding of the learned Trial Judge by discussing elaborately the consequences of non-compliance of Section 17(1), 17(2) and 17(2A) of the said Act and ultimately held that the defendant is not entitled to get any protection under Section 17(4) for non-compliance of Section 17(1), 17(2) and 17(2A) of the said Act. Thus, the decree passed by the learned Trial Judge was affirmed in appeal. The instant Second Appeal is directed against the said appellate decree at the instance of the defendant/appellant. After admission of the said appeal, the following substantial question of law was formulated by the Division Bench of this Honble Court:- Since it was the case of the defendant/appellant that advance was paid on account of rent to the plaintiff/respondent far in excess of the actual amount of rent which was required to be paid to the plaintiff, whether the learned Lower Appellate Court was right in rejecting the defendants contention in this regard only because the defendant did not raise a proper dispute under Section 17(2) of the said Act without keeping in mind that the issue of default should have been finally decided as one of the main issues in the suit itself the decree was passed on the ground of default itself.

(3.) Let me now consider the said substantial question of law in the facts of the instant case. Heard Mr. Basu, learned Senior Counsel appearing for the defendant/appellant and Mr. Ghosh, learned Counsel appearing for the plaintiff/respondent. Considered the materials on record including the judgment and decree under challenge.