LAKSHMI KANTA BHUIYA Vs. BEHARILAL PODDAR

JUDGEMENT

(1.) THE plaintiffs-opposite party are the landlords of premises No. 57/1, Keshab Chandra sen Street, in the town of Calcutta. The defendant petitioner is a tenant in the aforesaid premises in respect of two rooms in the ground floor and eight rooms in the first floor. The petitioner's tenancy is one from month to month, according to the English calendar, at a rental of Rs. 175/- per month. Alleging that the defendant petitioner sub-let some of the rooms, without notice to the opposite party under section 16 (2) of the West Bengal Premises Tenancy Act, and has been causing nuisance in two of the rooms let to him, the plaintiffs opposite party instituted a suit for his eviction, after service of the usual notice to quit.

(2.) THE suit was filed on May 9, 1957. It is not disputed that the summons in the suit was not duly served on the defendant petitioner. Nevertheless, he entered appearance, on May 31, 1957. He also filed a written statement, contesting the claim for eviction on merits. Sections 17 and 22 of the West bengal Premises Tenancy Act (hereinafter referred to as the Act) reads as follows :-Section 17. "when a tenant can get the benefit of protection against eviction.- (1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in section 13, the tenant shall, subject to the provisions of sub-section (2) within one month of the service of the writ of summons on him, deposit in court or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of eight and one-third per cent, per annum from the date of deposit, and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate. (2) If in any suit or proceeding referred to in sub-section (1)there is any dispute as to the amount of rent payable by the tenant, the tenant shall, within the time specified in sub-section (1), deposit in court the amount admitted by him to be due from him together with an application to the court for determination of the rent payable. No such. deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. On receipt of such application, the court shall- (a) having regard to the rate at which rent was last paid, and the period for which default may have been made, by the tenant, make as soon as possible within a period not exceeding one year, a preliminary order, pending final decision of the dispute, specifying the amount, if any, due from the tenant and thereupon the tenant shall, within one month of the date of such preliminary order, deposit in court or pay to the landlord the amount so specified in the preliminary order; and (b) having regard to the provisions of this Act, make, as soon after the preliminary order as possible, a final order determining the rate of rent and the amount to be deposited in court or paid to the landlord and either fixing the time within which the amount shall be deposited or paid or as the case may be, directing that the amount, already deposited or paid be adjusted in such manner and within such time as may be specified in the order. (3)If a tenant fails to deposit or pay any amount referred to in sub-section (1) or sub-section (2) the court shall order the defense against delivery of possession to be struck out and shall proceed with the hearing of the suit. (4)If a tenant makes deposit or payment as required by subsection (1) or sub-section (2), no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the court may allow such costs as it may deem fit to the landlord:

(3.) THE defendant petitioner did not deposit in the trial court the amount calculated at the rate of rent for the period from November 1956 to May 1957, after he had entered appearance, in terms of section 17 of the Act, for the reason that he had already deposited the amount with the Rent Controller. Thereupon, the plaintiffs opposite party filed an application, before the trial court, praying that the defendant petitioner's defense against delivery of possession be struck off under section 17 (3), for non-compliance with the provisions of section 17 (1) of the act. That application was allowed by the trial court but the order striking out the defense against eviction was set aside by this Court, on the ground that the trial court had not taken into consideration the deposit of rent made by the petitioner with the Rent Controller for the period for November 1956 to may 1957.