LAXMI NARAYAN SAHA Vs. DURGAPADA KARMAKAR

JUDGEMENT

(1.) The landlord opposite party has instituted a suit against the present petitioner in the 2nd Court of the Munsif, Katwa for ejecting him from the suit premises, inter alia, on the allegation that the defendant-petitioner had committed default in payment of rents from Magh, 1375 B. S. to Shravan, 1385 B. S. and, therefore, he was liable to be evicted under Section 13 (1) (i) of the West Bengal Premises Tenancy Act, 1956. He has also prayed for eviction of the defendant tenant on the ground that he reasonably required the suit premises for his own use and occupation and also for building and rebuilding within the meaning of Clauses (f) and (if) of Section 13 (1) of the said Act.

(2.) After entering appearance in the said suit on December 19, 1978, the defendant tenant made a combined application under Sub-sections (2) and (2-A) (b) of Section 17 of the West Bengal Premises Tenancy Act, 1956. He, inter alia, alleged that a part of the arrears of rent had already become barred by limitation and that he was only liable to deposit or pay arrears of rent for a period of three years preceding the date of the institution of the suit. He prayed that the said dispute about the total amount of arrears of rent may be determined by the Court. He also prayed that he may be allowed to pay by monthly instalments the amount which may be determined as due and payable by him. The plaintiff landlord opposed the said application of the defendant tenant under Sub-sections (2) and (2A) of Section 17 of the West Bengal Premises Tenancy Act The learned Munsif, 2nd Court, Katwa by his Order No. 26 dated 12th November, 1979 has rejected the aforesaid application of the defendant tenant under Sub-sections (2) and (2-A) of Section 17 of the West Bengal Premises Tenancy Act, 1956.

(3.) The defendant tenant has obtained the present Rule under Section 115 of the Code of Civil Procedure against the said order of the trial Court dated 12th November, 1979. The learned Munsif had committed an error apparent on the face of the record by holding that the defendant tenant's application under Section 17 (2) and (2-A) of the West Bengal Premises Tenancy Act was not filed within the time specified in Sub-section (1) of Section 17 of the said Act. Mr. Mitter, appearing on behalf of the plaintiff opposite party, has fairly conceded that the defendant tenant had in fact made the aforesaid application within one month of the date of the service of summons upon him. The learned Munsif clearly committed an error apparent on the face of the record by observing that the defendant tenant had filed the application in question on 12th December, 1979 whereas the learned Munsif disposed of the said application on 12th November, 1979. In fact, the said application was filed on December 19, 1978. I accordingly set aside the finding of the learned Munsif that the defendant tenant's aforesaid application under Section 17 (2) and (2-A) of the Act was barred by limitation. But the learned Munsif, however, was not in error when he held that as the defendant tenant did not deposit or pay the arrears of rent not barred by limitation and which were admittedly due, his prayer under Section 17 (2) for determination of the dispute about the amount of arrears of rent was bound to be rejected in limine.