SANAT KUMAR DEY Vs. ANIL KUMAR DAS

JUDGEMENT

(1.) This revisional application has been filed by the tenant -defendant challenging the order dated 23rd December, 1997 passed by the learned Civil Judge (Junior Division), 3rd Court at Alipore in Title Suit No. 61 of 1996 whereby and where under an order was passed by striking out his defence under Sec. 17(3) of the West Bengal Premises Tenancy Act, 1956. It appears that the tenant disputed the rate of rental as well as the arrear amounts by filing application under Sec. 17(2) (2A) of the West Bengal Premises Tenancy Act, 1956 hereinafter referred to as "the said Act". A decision was reached ex parte against the tenant in such applications when the tenant -defendant moved the revisional application under Sec. 115A of the Code of Civil Procedure registered as Civil Revision No. 348 of 1996 of the Court of learned Additional District Judge, 1st Court at Alipore. Before this Revisional Court below a settlement about admitted arrear rent was filed admitting that the rental for the months of October and November 1990 were not paid and, accordingly, these were deposited with statutory interest in court with a further contention that the tenant paid the rental for the months of May 1981 to September 1990 but no receipt was granted by the landlord. However, in this statement, a further rider was imposed namely with the language "However, If your Honour holds that I am to pay arrear rent from May 1981 upto September 1990, i.e., for 113 months then the arrear comes to Rs. 12.430/ - and upon deduction of the amount already deposited namely Rs. 1,500/ -, the arrear would be Rs. 10,930/ - + interest". From the order of the Lower Revisional Court, it appears that no finding was made fixing liability of the tenant to pay the arrear rental for the months of May 1981 to September 1990. Without such finding, however, the Revisional Court directed the application under Sec. 17(2) (2A) of the West Bengal Premises Tenancy Act would be heard subject to the condition of payment of cost of Rs. 1,000/ - and deposit of all the admitted rents. In pursuance of such direction passed by the Lower Revisional Court in the month of June 1997, the tenant -defendant deposited the cost of Rs. 1,000/ - and prayed for hearing of the application under Sec. 17(2) (2A) of the said Act. The learned Court below fixed the matter for hearing on 11th December, 1997 by the order dated 24th September, -1997 passed in the said suit. But, on 11th December, 1997, another application under Sec. 17(3) of the said Act was filed by the landlord -plaintiff praying for striking out the defence and the said application was fixed to 18th December, 1997. On 18th December, 1997 the applications were heard and date was fixed to 23rd December, 1997 for order. However, on 23rd December, 1997 only an order with reference to the application under Sec. 17(3) was passed by the learned Court below without any order in the application as filed under Sec. 17(2) (2A) of the said Act filed by the tenant defendant. The learned Advocate for the petitioner submits that without disposal of the application under Sec. 17(2) (2A) of the said Act, the learned Court below had no jurisdiction to decide the application under Sec. 17(3) of the said Act and, accordingly, the order is not only without jurisdiction but illegal. The learned Advocate for the opposite party, however, submits that in view of the conditional order as passed by the Lower Revisional Court whereby and where under the tenant -defendant admitted arrear of rental for the months of May 1981 to September 1990 and since such amount as admitted was not deposited, as per order of the 1st Revisional Court, there was no question of hearing of the application filed under Sec. 17(2) (2A) of the said Act. Hence, in adjudication of the impugned order, the interpretation of the direction of the Lower Revisional Court for payment of the admitted rents will clear the position. No doubt, the tenant -defendant filed an application in the form of a statement of admitted arrear rents before the Lower Revisional Court but in that application a condition was imposed namely that if the Revisional. Court considered that the tenant was defaulter for the month of May 1981 to September 1990 in that, event there would be an arrear rental for payment otherwise there was no arrear as admitted by the tenant -defendant. The learned Lower Revisional Court did not pass any order holding that the tenant -defendant was in arrear to pay the rental for the months of May 1981 to September 1990 and accordingly, there was no adjudication that the tenant -defendant was defaulter so far as payment of the rental for the months of May 1981 to September 1990. Hence, the word 'admitted rent' is to be paid as it is appearing in the order of the Lower Revisional Court surety would mean the admitted arrear of the tenant -defendant where in the tenant -defendant admitted that he was defaulter only for two months rental, i.e., for the months of October and November 1990 and such amounts were already paid along with the statutory interest in court. Hence, from the factual matrix of the case it is clear that there was no adjudication by the Lower Revisional Court fixing liability of the tenant -defendant that he was defaulter for the months of May 1981 to September 1990 and hence, the argument of the learned Advocate of the opposite party cannot stand. Even for argument sake if it is assumed that the submission of the learned Advocate of the opposite party is right, namely, tenant -defendant did not comply with the condition as imposed namely, payment of all arrear rental for the months of May 1981 to September 1990 still then such point was required to be adjudicated and decided by the learned Court below and there is no such adjudication by the learned court below rejecting the application under Sec. 17(2) (2A) of the West Bengal Premises Tenancy Act holding to that effect. Considering all the aspects of the matter since the Lower Revisional Court never adjudicated the issue namely, that the tenant was defaulter to pay the rental for the months of May 1981 to September 1990 and since there was no admission by the tenant to that effect, admitted rental as was directed to be paid by the Lower Revisional Court never would be construed to mean the payment of arrear rental for the months of May 1981 to September 1990. In that view of the matter without making any decision to that effect by the learned Court below in the application under Sec. 17(2) (2A), the impugned order striking out the defence is itself without jurisdiction and illegal. Hence, the impugned order cannot stand and the same is set aside and quashed. This revisional application is, accordingly! allowed. The learned Court below is hereby directed to dispose of the application as filed by the tenant -defendant under Sec. 17(2) (2A) of the said Act by determining the point namely whether the tenant is a defaulter in payment of the rental for the months of May 1981 to September 1990 by considering the riyal contentions namely, the tenant paid the rental but no receipt granted by the landlord and the contention of the landlord that no such rental was paid. Besides such adjudication the learned Court below will adjudicate the issue of rate of rental. Such adjudication must be made within three months from this date without granting any adjournment to any party in the matter and the suit to be disposed of within one year from this date.