AHI BHUSAN MAITRA Vs. IRA BOSE

JUDGEMENT

(1.) This is an appeal from an appellate decree at the instance of the tenant defendant and it arises out of a suit far eviction which had been decreed concurrently by the two courts below. Facts are not In dispute and may be set out very briefly. The plaintiffs/respondents (hereinafter referred to as the plaintiffs) are the joint owners of premises No. 20D, Chakraberia Lane which was let out to the defendant/appellant (hereinafter referred to as the defendant) on a monthly rental of Rs 60/ - payable according to English calender. On March 30 1970, the plaintiffs instituted an earlier suit, being Title Suit No. 203 of 1970 as against the defendant for a decree for eviction on the ground of default since September 1969 This suit was dismissed when the tenant/defendant was given relief under Sec. 17(4) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the said Act) upon the following finding :

(2.) The said suit was dismissed on January 24, 1972. in that background the plaintiff instituted another suit for eviction as against the defendant, being Title Suit No. 93 of 1973 of the 2nd Court of the learned Munsif at Allpore (out of which the present appeal arises) on two told grounds of default and reasonable requirement for their own use and occupation The two courts have concurrently overruled the plaintiff's claim of reasonable requirement though the suit has been concurrently decreed on the other ground of default. The default pleaded was a technical one. It was not disputed that since after the dismissal of the earlier suit the tenant defendant continued to deposit rent with the Rent Controller month by month and in time but such deposits were claimed to be invalid because there was no fresh tender of rent to the landlord personally or by money order subsequent to the judgment and decree in the earlier suit for eviction The defence plea that there was such a personal tender subsequent to the earlier suit was not accepted by the learned judge in the courts below who concurrently held that the deposit of rent with the Rent Controller are invalid solely on the ground that there was no prior tender of rent to the landlord after the aforesaid dismissal of the earlier suit. Feeling aggrieved, the tenant defendant has preferred the present second appeal to this court.

(3.) Mr Bagchi appearing in support of this appeal has contended that even on the findings of the two courts below the tenant defendant could not have been adjudged a defaulter. Relying on the amended provision of Sec. 21 (4A) of the said Act, it has been strongly contended by Mr. Bagchi that when in the earlier suit the court had found deposit of rent with the Rent Controller for the months of January 1970 to October 1970 to be valid deposit, it is necessarily established that such deposit followed a valid tender to the landlords. Once that is established, according to Mr. Bagchi, until the landlords signify their intention in writing to the tenant that they are willing to accept the rent amicably from the tenant, the tenant defendant was entitled in law to continue to deposit rents which fell due after the dismissal of the suit with the Rent Controller without any fresh tender to the landlords in other words, according to Mr Bagchi intervention of the earlier suit or the resultant liability of the tenant defendant to deposit an amount equivalent to rent in court under Sec. 17(1) of the Act during the continuance of the previous suit did not cause forfeiture of the legal right of the defendant tenant to again go on depositing the monthly rent to the credit of the landlords with the Rent Controller based upon their earlier refusal without a fresh tender to the landlords. Such being the right of the tenant defendant he could not have been adjudged a defaulter in the present suit only on the ground that the deposits of rent made by him following the earner suit are invalid only because there was no fresh tender of rent to the landlords.