RANI BALA DEBI Vs. KAMAL KRISHNA NATH

JUDGEMENT

(1.) THIS is the landlord's appeal, arising out of a suit for ejectment. The suit has been dismissed by the two Courts below and, against this concurrent decree of dismissal, the present second appeal has been filed by the plaintiff-landlord. The suit was, admittedly, governed by the West Bengal Premises tenancy Act, 1956, and the ground of ejectment, taken by the landlord under the said Act, was default in payment of rent. The landlord's plea was that the tenant was a defaulter in payment of rent, for much more than four months, and consequently, entitled to no protection under the Act, in. view, particularly, by the proviso to section 17 (4) of the Act. In the plaint, a list of the alleged defaults was given, which included both pre-Act and post-Act periods, and the plaintiff's case in the plaint was that the deposits with the Rent Controller, shown in the said list, were not valid deposits, as they were made beyond the time, fixed, by the contract between the parties, for payment of rent, namely, the 15th of the next succeeding month according to the Bengali Calendar. The Courts below have agreed in rejecting the plaintiff's above contention upon the view that the plaintiff was not entitled to take advantage of any pre-Act default, and, secondly, that the alleged defaults, after the above 1956 Act had come into operation, were not defaults at all, as the relative deposits except for Falgun, 1362 B. S. were made quite within the statutory period, as enacted in section 21 of the said Act.

(2.) THE plaintiff's case as to the contractual time for payment of rent not being acceptable, in my view, on the evidence on record, the decisions of the two courts below must be held to be correct and should be affirmed, as the deposits with the Rent Controller would, then, be sufficiently within time. Having regard, again, to the scheme of the 1956 Act, and the conditions, under which a default occurs, which, by the way are not the same as in the preceding statute, pre-Act defaults would not be defaults under the said Act and would not be available to a plaintiff-landlord, relying on the said 1956 Act.

(3.) MR. Biswas, appearing for the plaintiff-appellant, raised a contention before me, which was also urged before the learned lower appellate court, though not in the trial court, that, even the post-Act deposits would be invalid, as there is no evidence of the requisite preceding tender or tenders for the same. In the plaint, however, there: was not the slightest indication that the tenant was a defaulter because of the absence of requisite tender; on the other hand, the only case, in the plaint, on the question of default was that the deposits were not in time. There is also no indication in the evidence that the absence of tender was a part of the plaintiff's case for making the defendant defaulter. In the circumstances, the learned Judge in the Court of appeal below, rejected this argument of the plaintiff-landlord, and, in may opinion, its view on the point is correct.