HARBHAJAN SINGH SOLE Vs. SHANKAR CHOWDHURY

JUDGEMENT

(1.) A short but important question has come up for consideration in this revisional application. The landlord/plaintiff has filed this revisional application challenging the order whereby the order for striking out the defence of the tenant/defendant under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 (hereinafter called as the said Act) was recalled. The said impugned order was made on an application filed by the tenant/defendant under Section 151 of the Code read with Section 5 of the Limitation Act. In the said petition the order made for striking out of the defence of the tenant/defendant in the suit was sought to be reviewed upon deposit of rents for the months which were admittedly not deposited in compliance with the provisions of Section 17(l) of the said Act following the order of disposal of the petition under Sections 17(2) and (2A) of the said Act. Such deposit was made only after the order for striking out of the defence was made.

(2.) THEREFORE the questions, whether a tenant defendant will be entitled to the benefit of such deposit which was made after the striking out of his defence in the suit, or in the alternative whether such deposit should be treated as a valid deposit in the eye of law so as to enable the Court to recall its order for striking out the defence on the basis thereof, became important.

(3.) IN the suit for ejectment filed by the plaintiff/landlord the tenant/defendant filed an application under Sections 17(2) and 17(2A) of the said Act disputing the relationship of landlord and tenant between the parties, the rate of rent and the period of default. The said petition was disposed of on contest by an order dated 24 -4 -1996 with the finding that the tenant/defendant defaulted in payment of rents from July, 1982 till that date. The tenant/defendant was accordingly directed to deposit Rs. 41040/ - together with interest @ Rs. 8.33% at a monthly instalment of Rs. 5000/ -. The defendant was also directed to go on depositing an amount equivalent to monthly rental within 15th of each month. First of such payment was directed to be made by May, 1996. The rate of rent was found as Rs. 285/ - per month. The said order dated 24th of April, 1996 was affirmed by the learned Additional District Judge, Alipore in Civil Revision Case No. 277 of 1996 that arose out of an application filed by the tenant/defendant under Section 115A of the Code. The said order was further affirmed by this Court by its order dated 4th December, 1996 made in Civil Order No. 2976 of 1996. Thus, in view of the disposal of the said petition under Sections 17(2) and 17(2A) of the Act as above by the said order dated 24th of April, 1996 the tenant/defendant was under obligation to deposit and/or to pay to the plaintiff/landlord current monthly rental under Section 17(1) of the said Act since May, 1996 inasmuch as the said order of disposal took into account all arrears of rent till the said date of disposal. The tenant/defendant, however, started depositing current monthly rent only from the month of November, 1996. Therefore, he did not pay current monthly rentals for the months from May, 1996 to October, 1996 in compliance with the provisions of Section 17(1) of the said Act. In these state of things, the plaintiff/petitioner filed an application under Section 17(3) of the said Act for striking out the defence of the tenant/defendant on the ground that he failed to pay the current monthly rental in compliance with the provision of Section 17(l) of the said Act as also the arrears of rent pursuant to the said order of disposal dated 24 -4 -1996. The learned Trial Court however, held that the tenant/defendant had paid the arrears of rent for the period from July, 1982 to April, 1996 amounting to Rs. 41040/ - as determined by the Court together with statutory interest, thereon and therefore, was not a defaulter at all so far as the arrears of rent were concerned. But since current monthly rentals were not deposited month by month for the months from May, 1996 to October, 1996 in compliance with the provisions of Section 17(1) of the said Act so the defence was struck out by an order dated 23 -2 -1998. The tenant/defendant thereafter on 20th March, 1998 deposited an amount being the arrears of rent for the period from the months of May, 1996 till October, 1996 with interest calculated thereon. On the self same date an application under Section 5 of the Limitation Act read with Section 151 of the Code of Civil Procedure was filed for condonation of delay in depositing the said rentals. It may be stated herewith that in the said petition there was however no prayer for reviewing and/or for recalling the said order for striking out the defence of the tenant/defendant. The learned Trial Court, however, upon consideration of the facts and circumstances of this case recalled the said order by the impugned order dated 53 -1999 which has been impugned in this revisional application by the plaintiff/landlord.