SURENDRA CHANDRA BHOWMIGK Vs. PRITIMOYEE GUPTA

JUDGEMENT

(1.) THIS matter has come up before us on being assigned by the learned Chief Justice as the learned referring Judge, Pradyot Kumar Banerjee, j. differed from the view taken by Sudhamoy Basu, J. in the unreported decision dated March 27, 1978 in C. R. No. 1714 of 1973 Gurucharan Das -Ms- Kshetra Mohan kumar on the point as to whether the date of appearance in the suit for the purpose of section 17 (1), 17 (2), 17 (2a) of the West bengal Premises Tenancy Act will be the date of appearance in a proceeding under order 9 Rule 13 of the Code of Civil Procedure by the tenant defendant. Sudhamoy basu, J, in the aforesaid unreported decision took the view that the date of appearance in a proceeding under order 9 Rule 13 of the Code will be the date of appearance in, the suit for the purpose of calculating the time limit for deposit of the arrears of rent under section 17 (1) of the West bengal Premises Tenancy Act. The learned judge Pradyot Kumar Banerjee, J. has however taken a different view and in his lordship's opinion order 9 Rule 13 of the code of Civil Procedure is an independent proceeding and if after exparte decree an application is made for setting aside that decree, in that case unless the decree is set aside the defendant has no right to appear in and/or contest the suit and therefore the defendant cannot deposit the amount under section 17 (1) of the West Bengal Premises tenancy Act or make an application under section 17 (2) and/or under section 17 (2a)of the said Act.

(2.) THE facts out of which the present case has arisen are not in dispute and may be ' briefly stated. The plaintiff opposite party filed ejectment suit No. . 1 of 1978 on february 7, 1978 for eviction of the defendant from the suit premises on several grounds mentioned in section 13 (1) of the act. The summons issued in the suit was not served on the defendant but the suit was decreed exparte on 22. 11. 78. Thereafter on an application made by the tenant defendant on 9. 3. 79 under Order 9 rule 13 of the Code, registered as Misc. Case no. 40 of 1979 the exparte decree was set aside after contest on 21. 6. 80. The court fixed the suit on 4. 8. 80 for taking steps. The defendant appeared by executing fresh Vokalatnama in favour of his learned Advocate on 4. 8. 80 and filed 3 applications, one under sub-section (1)another under sub-section (2a) clause (b)of section 17 of the Act and an application for supply of copy of the plaint to file written statement. The trial court by its order dated 27. 1. 82 rejected the defendant's application under section 17 (2a) (b) of the act on the ground that it was filed more than one month after the appearance of the defendant, and also more than one month after the date when the defendant had come to know about the filing of the suit prior to 21. 6. 80.

(3.) IT has been submitted by Mr. Saktinath mukherjee learned advocate appearing for the petitioner, in our view rightly, that the proceeding arising out of an application under Order 9 Rule 13 of the Code is a proceeding independent of the suit and that the appearance of the defendant in such a proceeding cannot be treated as his appearance in the suit for ejectment on any of the grounds specified under section 13 (1) of the Premises Tenancy Act hereinafter called the Act. In this connection he has referred to the heading of Chapter III of the Act namely, "suits and proceedings for Eviction" and has also pointed out to us the wording of section 17 (1) of the Act the relevant portion of which is that on a suit or proceeding being instituted by the landlord on any of the grounds referred to in section 13 the tenant shall subject to the provision of sub-section (2) within one month from the service of the writ of summons on him or where he appears in a suit or proceeding without a writ of summons being served on him within one month of his appearance deposit in court etc. So the said sub-section refers to appearance in a suit or proceeding being instituted by the landlord on any of the grounds mentioned in section 13 of the Act. The proceeding arising out of an application filed by the tenant defendant under Order 9 rule 13 of the Code for setting aside an exparte decree where summons had not been served on him cannot in any view be equated with or assimilated to a proceeding referred to under section 17 (1) of the Act. Mr. Mukherjee has also referred to the decision in the case of Salil Kumar Banerjee vs. Sailendra Nath Ghosh and others reported in 63 CWN 883 in which the learned Judge banerjee, J. has held that a proceeding under Order 9 Rule 13 of the Code is an original proceeding quite independent of the suit and so substitution of a deceased plaintiff made in such a proceeding does not ipso facto amount to substitution of heirs of the deceased plaintiff also in the suit itself, In coming to this view the learned Judge Banerjee, J. has relied upon several decisions of the Madras High Court viz. , K. Venkatanarasima Rao v. Hemadri suryanarayana AIR 1926 Mad. 325 ; Salar beg Saheb v. Karumanchi Kotayya AIR 1926 Mad, 654; Banakar Basappa vs. Hansaji Gulabchand Firm AIR 1936 Mad. 660 and also a Division Bench decision of this Court in Bipin Behari vs. Abdul Batik, 21 CWN 30. We find that the points raised by Mr. Mukherjee are well founded. In this connection we may refer also to section 141 of the Code of Civil Procedure as amended in 1976 which specifically provides in the Explanation to the said section that the expression "proceedings" includes proceedings under Order IX and the procedure provided in the Code in regard to suits shall be followed as far it can be made applicable in all proceedings including a proceeding under Order 9 of the Code, indicating that it is an original proceeding.