C MURALEE DHARAN ALIAS DHASAM Vs. ARATI NATHS

JUDGEMENT

(1.) This is an application under section 115 of the Code and is directed against Order No. 115 dated 12.7.82 passed by the learned Munsif, Second Court, Sealdah in Title Suit No. 124 of 1979 allowing an application filed under section 17(3) of the West Bengal Premises Tenancy Act, 1956. The opposite party brought a suit for eviction on the ground of default and for reasonable requirement. After appearance the petitioner filed an application under section 17(2) of the Act. The said application was rejected as the petitioner did not deposited the admitted arrear of rent. The petitioner being aggrieved came to this Court. But this Court did not interfere. The opposite party thereafter filed an application under section 17(3) on 20.2.80. The opposite party then filed an application or amendment of the plaint which was allowed on 20.6.80 and thereafter, the petitioner filed a fresh application under section 17(2A)(a) & (b) on 16.7.80 which was rejected. Being aggrieved, the petitioner came up to this Court. This Court again did not interfere. The hearing of the suit was taken up on 29.6.82. On that day the plaintiff was examined in chief. The matter was adjourned to 1.7.82. Before cross-examination commenced the petitioner drew the attention of the learned Court that the application under section 17(3) still remained undisposed. The Learned Court passed an order for disposal of the application before cross-examination. The opposite party did not press the application under section 17(3) filed on 20.2.82 and made an endorsement to that effect. Thereafter, plaintiff was cross-examined and the defendant was examined and cross-examined on 5.7.82 and 7.7.82. On 7.7.82 the opposite party filed another application under section 17(3) of the Act. The application was opposed by the petitioner. The application was taken up for hearing on 12.7.82 and the application was allowed. Being aggrieved, the petitioner has come up to this Court.

(2.) Mr. Sunil Kumar Ghosh, learned Advocate appearing on behalf of the petitioner, submits that the plaintiff having stated that he would not press the application and by an endorsement having been made to that effect the plaintiff waived his right, if any, to have the defence struck out by filling an application under section 17(3). By not pressing the application under section 17(3) it must be held, Mr. Ghosh submits, that the plaintiff gave up the point that some of the deposits made by the defendant were invalid deposits.

(3.) Mr. Suchit kumar Banerjee, learned Advocate appearing on behalf of the opposite party, relies on the three decisions which were also relied on by the learned Munsif. The first decision of (1) Hindusthan Industrial Co. v. Chandi Prosad More has been reported in 1977 (2) CLJ 508. This a Bench decision and it was held: 'dismissal of an application under section 17(3), when the said application had not been pressed by the plaintiff-respondent, does not constitute a bar either by way of esstoppel or by the judgment of the Court'. Their Lordships observed: "An adjudication on the application under section 17(3) would not have furnished any opportunity to the tenant-appellant to secure any relief against eviction for default committed. He looses that protection because of his own default to comply with section 17(1) or to raise a dispute under section 17(2). ???..Then again, there having been no decision on the merits as to whether the appellant was in default or not on the application under section 17(3) that decision would not constitute res judicata by interlocutory orders so far as the trial court is concerned?". The next decision of (2) Provati Chakrabarty v. Satyendra Nath Chatterjee & Ors. is reported in 1978 (1) CLJ 629. In this case, a question arose whether an application under section 17(3) was maintainable as the suit was heard in part. It was held by Chittatosh Mookerji, J.: "So long as the ejectment suit remains pending in the trial court, the defendant-tenant has a statutory obligation under section 17(1) to deposit in Court or in the office of the Rent Controller a to pay to the landlord a sum equivalent to rent month by month within the 15th day of each succeeding month. The landlord's right to apply before the Court for striking out the defence against delivery of possession under section 17(3) must be co-extensive with the application of the tenant to make deposit or payment under section 17(1). The liability of the defendant to deposit or to pay under section 17(1) commences from the date of institution of the ejectment suit a proceeding ends with the termination of the said suit".