M L BAJAJ Vs. MUSTT RASHIKA KHATOON

JUDGEMENT

(1.) A short point involving interpretation of Sub-section (1) of Section 17 of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the said Act) raised in this Rule issued on a revisional application has been referred to the Division Bench by our learned brother P. K. Banerjee, J.

(2.) The Rule was obtained by the tenant/ defendant in a suit for eviction and is directed against an order dated Jan. 17, 1979. passed by the learned Chief Judge, City Civil Court. Calcutta, allowing an application under Section 17 (3) of the said Act, tiled by the plaintiff/opposite party thereby striking out the defendant's defence against delivery of possession. His defence against delivery of possession was so struck out because of his failure to deposit amounts equivalent to monthly rent for several months pending the suit but subsequent to its institution in accordance with the latter part of Sub-section (1) of Section 17 of the said Act. In striking out the defence against delivery of possession the learned Chief Judge overruled the contention raised on behalf of the defendant, to the effect that since the defendant was not in default in payment of rent prior to the suit he was under no obligation to deposit any arrears in terms of the first part of the said Sub-section and necessarily he had no obligation cither to deposit any amount equivalent to monthly rent for the months subsequent to the suit which obligation could have arisen only in continuity of the obligation imposed by the first part. It was so overruled when the learned Chief Judge held that although the defendant was not in default in payment of rent at the time of institution of the suit, which had been instituted solely on the ground of reasonable requirement, his subsequent failure to deposit rent on 19 occasions pending the suit within time in terms of the latter part of Sub-section (1) of Section 17 would attract the provision of Section 17 (3) of the said Act.

(3.) Appearing ir, support of this Rule. Mr. Bose has raised the same contention which was unsuccessfully raised before the learned Chief Judge and which he claims was erroneously overruled by the said Judge. According to Mr. Bose the learned Chief Judge misread the provision of Section 17 (1) of the said Act, in not appreciating that the two parts of that Sub-section are not independent of each other and tenant's liability under the latter part thereof does not arise unless he is jo default in payment of rent prior to the suit and as such, has suffered ;i liability to deposit arrears in terms of the first part of that sub-section. Mr. Bose wants us to read Section 17 (1) of the said Act to mean and contemplate a process of deposit in an uninterrupted chain which originates only on the existence of pre-suit arrears; in his view only where a tenant/ defendant is in arrears prior to the suit. Section 17 (1) of the said Act has its application and requires him to pay or deposit the entire such arrears together with the arrears that may have accrued subsequent thereto up to the end of the month previous to that in which the deposit or the payment is being made and then continue to go on depositing an amount equivalent to monthly rent for current months subsequent thereto. Mr. Bose contends that the obligations imposed by the two parts of this Sub-section are so interlinked that the latter has been made contingent upon the former, so that in a given case -- as is the case now before us --where the tenant/defendant had incurred no obligation to pay or deposit any amount contemplated by the first part, no question arises for him to continue to pay or deposit any amount whatsoever in terms of the latter part of that Sub-section. Reliance is placed by Mr. Bose on a Single Bench decision of this Court in the case of Harendra Nath Chatterjee v. Sailendra Krishna Sana, which well supports his contention. Reliance is also placed by Mr. Bose on certain observations made by the different Judges constituting the Special Bench in the case of Siddhcswar v. Prakash Chandra, and the observations of the Supreme Court made in the case of Kaluram v. Baidyanath. In support of this Rule Mr. Bose incidentally raised another point which had not been raised in the Court below. The point so raised is to effect that the tenant/defendant having raised a dispute as to the existence of relationship of landlord and tenant between the parties in his defence, the learned Chief Judge could not have allowed an application under Section 17 (3) of the said Act and struck out his defence against delivery of possession without first deciding the said dispute.