MONOMOHAN DUTTA Vs. UTTAMA DATTA

JUDGEMENT

(1.) THIS second appeal is by the tenant defendant. It arises out of a suit for ejectment and raises a very short question.

(2.) THE suit was instituted on the ground of default in payment of rent under the West Bengal Premises Tenancy Act, 1956. The defence was that the tetnant was not a defaulter in any event, not a defaulter to the extent, alleged by the plaintiff landlord. There was thus dispute on the question of amount of rent, payable within the meaning of the unamended Section 17 (2) of the original West Bengal Premises Tenancy Act, 1956, which would be the statutory provision, applicable in the instant case, the suit having been instituted in August 1958, and the said statutory provision having been amended into the new Section 17 (2) only in February 1960. This was held in the decision of this Court, reported in (1) Sk. Fazluddin v. Sm. Zubeida Khanam, 66 CWN 849. That decision also laid down that, in such circumstances, it was the duty of the court, irrespective of any application by the party, to consider the matter under the said statutory provision (old Section 17 (2)) and to proceed thereunder in accordance with law before disposing of or deciding the suit. The same view was taken in several subsequent unreported decisions of this Court namely (2) Hemraj Brahma v. Sanat Kumar Sen, F. A. 255 of 1961, (3) Sundaram Patwari v. Chunnilal Jessapuria, F. A. 465 of 1961 and (4) Somnath Tewari v. Lakshman Prasad Bagaria, F. A. 204 of 1962 and the reported decisions in (5) Biswanath Roy v. Annapurna Roy, 65 CWN 149, (6) Mahananda Dutta and Co. (P.) Ltd. V. Uma Charan Law and ors. , 68, CWN 179 and (7) Krity Basu v. Peary Mohan Sarkar and anr. 74 CWN 42.

(3.) ON the above view of law, there is no question that the instant decree for ejectment passed by the learned trial Judge and affirmed by the Court of Appeal below should be set aside and the matter should be remitted to the learned trial judge for consideration of the question under the original or un-amended Section 17 (2) of the above Act and for disposal of the suit in accordance with law thereafter in the light of the above decisions.