DWARKA PROSAD SHARMA Vs. J N NEOGI

JUDGEMENT

(1.) THE defendant appellant had been a monthly tenant under the plaintiff respondent in respect of Flat No. 6 in the second floor of No. 74/6b, Bagbazar Street, Calcutta. On 21st December, 1965 the plaintiff respondent had instituted the suit out of which this appeal arises for evicting the defendant inter alia on the allegations that he had committed defaults in payment of rent since January, 1964. According to the plaintiff, the defendant had been paying rent at the rate of Rs. 100/- per month, Rs. 55/- being acknowledged as rent and Rs. 45/- being described as service charges. The plaintiff's further case was that in consideration of the betterment fees levied upon him, the rent payable by the defendant had been raised to Rs. 120/- per-month from November, 1963.

(2.) THE defendant contested the said suit by filing a written statement. He had also filed an application under section 17 (2) of the West Bengal Premises tenancy Act praying for determination of the rent payable by him. According to the defendant, Rs. 55/- was the rent per month and without obtaining any receipt he had amicably paid rent up to march, 1964. From April, 1964 to 1967 he had been depositing rent at the rate of Rs. 551 - per month in the office of the rent Controller. On the receipt of the summons the, defendant had deposited in Court arrear rents from January to march, 1964 and had also continued to deposit current rent at the rate of Rs. 55/-per month. The trial court had originally made an order by consent of parties disposing the defendant tenant's application under section 17 (2) of the Act without determining the dispute as to whether the rent at the rate of Rs. 120/-per month as alleged by the plaintiff or rs. 55/- per month as contended by the defendant. The trial court had dismissed the suit on the ground that the plaintiff had failed to comply with the section 13 (6)of the West Bengal Premises Tenancy act. His Lordship Mr. Justice M. M. Dutta by his judgment and decree dated 2nd August, 1973 allowed the appeal preferred by the plaintiff landlord and after setting aside the trial court's decision remanded the case for' fresh disposal in accordance with the directions contained in his judgment. The learned judge held the notice under section 13 (6)of the West Bengal Premises Tenancy act was valid. The learned Judge, however, came to the finding that the trial court had failed to determine the dispute under section 17 (2) of the West Bengal. Premises Tenancy Act raised by the defendant tenant, and, therefore, directed fresh disposal of the said application under section 17 (2) of the Act.

(3.) AFTER remand the trial court recorded oral and documentary evidence adduced by the parties and under section 17 (2) of the West Bengal Premises Tenancy Act determined that Rs. 100/- was the rent payable by the defendant. It accordingly determined the sum of Rs. 9941. 73 as the balance amount of the arrear and interest payable thereon. The trial court by a subsequent order under section 17 (3) of the West Bengal premises Tenancy Act had struck off the defendant tenant's defence against delivery of possession on the ground that he had failed to comply with the said order under section 17 (2) of the said Act. The defendant thereafter did not contest the suit. After recording the evidence adduced by the plaintiff's side, the trial court decreed the suit in plaintiff's favour. Being aggrieved thereby, the defendant tenant preferred the instant appeal.