RADHARAM SOHANLAL Vs. ABANINDRA NATH MITTER

JUDGEMENT

(1.) This appeal has come up for hearing and disposal before this Full Bench upon a reference made by A. N. Ray and S. K. Mukherjea, JJ., under Chapter II Rule 1 (ii) of the Appellate Side Rules of this High Court. During the hearing of the appeal before their Lord-ships a question arose as to the interpretation of the proviso to Sub-section (4) of Section 17 of the West Bengal Premises Tenancy Act, 1956 as amended by Act IV of 1968. The same point had been raised in another appeal heard by their Lordships, namely. P. A. No. 565 of 1965 = (). Jamuna Prasad Chowrasia v. Kishorilal Poddar. That appeal was also referred by their Lordships for a decision by a Full Bench. The short facts and circumstances of this appeal are as follows:

(2.) The defendants M/s. Radharam Sohanlal were the plaintiff's tenants in respect of one Guddy room in the ground floor and 3 rooms on the top floor of premises No. 3-A, Mullick Street. Calcutta, at a rental of Rs. 238/- per month payable according to the English calendar month. The plaintiff complains that the defendants defaulted in payment of rent for more than four months within a period of 12 months since April 1963. The plaintiff served a notice to quit on the defendants calling upon the defendants to quit and vacate the premises in suit on the last day of September, 1963. The defendants not having complied with the said notice the plaintiff filed the suit for eviction. The plaintiff contended that by having defaulted in payment of rent for more than four months within a period of 12 months the defendants have forfeited their right to be protected under the provisions of West Bengal Premises Tenancy Act of 1956.

(3.) The defendants contested the suit by tiling a written statement. They took various technical objections and, in any case, denied the story of default in the matter of payment of rent. They came out with the story that they had surrendered the three rooms on the top floor and were entitled under an agreement with the landlord to a deduction of rent. The defendants, however, continued to pay rent at the former rate so that in the result they had made some excess payments which were to he adjusted against future rents from April 1963. Therefore, the defendants said, they had not committed any default. On these pleadings the following issues were framed for determination:--