ASHUTOSH BHAITACHARYA Vs. S V PROVAKAR RAO

JUDGEMENT

(1.) This revisional application at the instance of the landlord raises a short but important question of law, namely whether a tenant whose tenancy has been determined by a notice to quit, but who has been continuing in possession and no decree for eviction has yet been passed, is entitled in law to successfully maintain an application under section 34 of the West Bengal Premises Tenancy Act.

(2.) The Opposite Party is a tenant in respect of portion of a brick walled R. T. Shed of premises No. 2A Kabir Road, at a monthly rental of Rs. 190. On the plea that the tenant has defaulted in the payment of rent the landlord petitioner served the tenant with a notice determining the tenancy with the expiry of the month of Nov., 1970 and thereafter instituted a suit for eviction being Title Suit No. 361 of 1970. The opposite party, tenant entered appearance and obtained an order for payment of the arrears under section 17(2A) (b) of the Premises Tenancy Act but defaulted in the payment of instalments even thereafter, with the result that by an application under section 17(3) of the Act the defence against delivery of possession was struck off on 21-8-1974. The opposite party moved this court in revision but eventually the Rule was discharged on 7-9-1976. Thereafter the suit was decreed ex parte on 4-10-1977. An appeal preferred against the decree, is however pending.

(3.) During the pendency of the suit the opposite party on 27-1-1976 filed an application under section 34 of the West Bengal Premises Tenancy Act before the Rent Controller for effecting certain essential repairs to the premises. By an order dated 27-11-1976 the Rent Controller allowed the application granting an amount of Rs 388.80 with direction for adjustment of the amount against future rent at the rate of Rs. 40 per month.