PRATIMA BAUL Vs. INDU BHUSAN BANERJEE

JUDGEMENT

(1.) This Rule was obtained by the plaintiff-landlady and it is directed against an order of the learned Munsif holding that the tenant defendant's application under Section 17-D of the West Bengal Premises Tenancy Act, 1956 was maintainable for setting aside a consent decree.

(2.) Plaintiff brought a suit for ejectment against the opposite party from a portion of premises No. 21/2. Belgachia Road, on the ground that the opposite party was a defaulter in payment of rent since December 1964. The opposite party in his written statement denied that he was a defaulter. On or about March 12. 1968, the plaintiff and the opposite party filed a joint petition of compromise and in terms of the same, the learned Munsif passed a decree. In terms of the said compromise decree the tenant undertook to vacate the premises within December. 1969. In default, execution might be started for recovery of possession. While continuing in occupation of the premises in suit in terms of the said consent decree, on 6th December, 1969, the tenant opposite party filed an application under Section 17 D of the Act for setting aside the said decree passed in the suit. The petitioner resisted the said application on the ground that it was not maintainable in view of the fact that decree in question was a consent decree and not a decree in invitum. The learned Munsif by his order dated 3rd of December 1970, allowed the opposite party's prayer in preliminary form upon the view that the opposite party's said application under Section 17 D was maintainable. Petitioner, being aggrieved against the said order, moved this court and obtained the present Rule.

(3.) Mr. Basu, appearing on behalf of the petitioner, contended that as no decree was passed for recovery of possession of the premises in suit on the ground in Clause (i) of Sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act, the learned Munsif acted illegally and with material irregularity in exercise of his jurisdiction in holding that Section 17-D of the Act was applicable in the instant case.