JAYANTA DUTTA Vs. DHIRENDRA NATH DUTTA

JUDGEMENT

(1.) These two applications are taken up for analogous hearing and are being disposed of by this common judgment.

(2.) These revisional applications are arising out of an order passed on 24th June, 2010 by which the civil Judge, Junior Division considered two applications one filed by the plaintiff under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 and another under Section 151 of the Code of Civil Procedure filed by the defendant for rendering police help for compliance of the order dated 16th January, 2007. The plaintiff instituted the suit for eviction against the defendant in the year 2001 on the ground of default, reasonable requirement, nuisance and annoyance along with other reliefs. In the same proceeding on an application filed under Section 17(2) of the Act an order was passed holding that the petitioner is a defaulter in payment of rent from September, 1986 to July, 1989 and accordingly the petitioner was directed to pay arrears rent for the said defaulted period being a sum of Rs.10,540/- in ten equal instalments. The order records that the defendant has been dispossessed illegally from the suit premises on 23rd July, 1989 and accordingly the civil Judge directed suspension of rent from August, 1989 till the dispute regarding dispossession of the defendant from the suit premises is decided after taking evidence in the suit. Accordingly, the defendant was not held defaulter from August, 1989 till May, 2003. The defendant admittedly did not comply with the said order resulting in an application being filed in March, 2005 under Section 17(3) of the West Bengal Premises Tenancy Act for striking out the defence. The defendant contested the said proceeding in which it is contended that the defendant deposited the rent with the rent controller from January, 1989 till June, 1989. The plaintiff also received Rs.5,000/- in cash from the defendant from 31st December, 1986 towards rent and Rs.250/- on 20th January, 1989 and Rs.1,500/- on 18th September, 1988 on granting money receipt and also Rs.1,500/- on 3rd July, 1988 through Santosh Kr. Deb and Rs.925/- on 9th June, 1988 through the same person. The defendant-petitioner disclosed such rent control challans and receipts in support of such contention in the said proceeding. It is argued that the learned Judge held that the petitioner is defaulter from September, 1986 to July, 1989 since the defendant could not file documents in support of his contention that the rents have been paid for the aforesaid period. Since the rents have been paid for such period, it is contended that the petitioner could not be held to be a defaulter for such period and in any event the learned Court before permitting striking out of defence should take into consideration that the basis for praying such relief does not exist or at least it requires re-consideration since the provision of Section 17(3) has a serious civil consequence.

(3.) Learned counsel for the plaintiff-landlord however, submits that in a proceeding under Section 17(3) of the Act, the trial Court is only required to consider whether the order passed under Section 17(2) of the Act has been duly complied with or not and in the event the learned Court finds that the said order has not been complied with, the Court has no other option but to strike out the defence which is a mandatory requirement of the said section. Moreover, in the instant case it was open for the tenant-petitioner to approach the Court with such materials before filing of the application under Section 17(3) of the West Bengal Premises Tenancy Act. The said defendant however, did not avail such opportunity and accordingly it is open for the petitioner to re-open the issue with regard to arrears of rent which are since been decided in a proceeding under Section 17(2) of the West Bengal Premises Tenancy Act, 1956. In this regard the learned counsel for the petitioner has relied upon the following decisions: