PRABIR CH GHOSH Vs. RIJU THAKUR

JUDGEMENT

(1.) This is an application under section 104 of Code of Civil Procedure challenging the order being order No. 84 of 19th July, 1999 passed by the learned Judge, 8th Bench, City Civil Court at Calcutta. Such order was passed allowing the application under section 17(2) of the West Bengal Premised Tenancy Act, 1956 read with section 151 of the Code of Civil Procedure holding that there is no arrear of rent due and payable by the defendant to the plaintiff. In further, the deposits of rent made in the name of original plaintiff since dead are all valid and plaintiff had liberty to withdraw the deposited rents on proper application.

(2.) According to the petitioner, predecessor-in-interest of the petitioner instituted an Ejectment Suit being No. 52 of 1979 in the self-same Court for eviction of one Padarath Thakur and Riju Thakur alias Raju Thakur, since deceased, original opposite party herein, on the ground of default in paying rent. During the pendency of this suit Padarath Thakur expired and Riju Thakur, enjoyed sole tenancy of the suit premises being the then surviving tenant. On 29th January, 1986 suit was decreed for costs but as it was first default he obtained the relief under section 17(4) of the West Bengal Premises Tenancy Act, 1956. Thereafter he started to pay rents to the predecessor-in-interest of the petitioner for sometimes but again committed default in payment of rent in respect of the suit premises since July, 1986. In January, 1987 she instituted the present suit for committing such second default in the self-same Court. Then the original opposite party being defendant therein filed an application under section 17(2) of the West Bengal Premises Tenancy Act, 1956 disputing the cause of default and prayed for an order of determination of such dispute and payment of arrears of rent in easy instalments. Such application was filed with a supporting application under section 5 of the Limitation Act for condonation of delay. The application was dismissed for default but subsequently restored. The original plaintiff expired. The present petitioner stepped in the shoes of the original plaintiff. On 12th September, 1991 the present petitioner filed an application under Order 22 Rule 3 of the Code of Civil Procedure for substituting his name in the place and instead of the deceased plaintiff. It was opposed by the opposite party.

(3.) The opposite party had been depositing the rents in respect of the suit premises before the Rent Controller. Calcutta prior to institution of the suit and he continued with the same even after institution of the same till March, 1993 in the name of Smt. Monoroma Dassi, since deceased, original plaintiff. The petitioner contended that inspite of knowledge of death on 22nd June, 1991 the opposite party continued to deposit such rents in the name of the deceased plaintiff for 22 months from July, 1991 till March, 1993. Accordingly, such deposits before the Rent Controller, Calcutta in the name of the deceased person were totally invalid and illegal. On 16th April, 1998 the petitioner filed a written objection against the application under section 17(2) of the Act pointing out such invalid deposits. It was specifically mentioned that inspite of the full knowledge about the death of the original plaintiff the opposite party deliberately continued to deposit in the name of a dead person. By a reply the opposite party alleged that he was unaware of the death and only after the order of substitution being No. 50 dated 17th March, 1993 he deposited rents in the name of the substituted plaintiff with effect from April, 1993. Therefore, the deposits which had been made in the name of the plaintiff, since deceased, were valid. On 16th April, 1999 the opposite party filed another application for treating the aforesaid deposits as valid deposits. According to the petitioner, no knowledge about death was a deliberate false statement inasmuch as in the opposition to the application for substitution filed on 31st January, 1992. The knowledge of death was admitted. The application under section 17(2) of the Act and the objection was taken up together and in allowing the applications the Court held that the opposite party is not a defaulter and the deposits which were made to the Rent Controller are valid deposits.