D N MUKHERJEE Vs. JATINDRA NATH BHADURI

JUDGEMENT

(1.) THIS Rule arises out of a landlord tenant dispute. The Rule is directed against the order of the learned Munsif being Order No. 40 dated 8th April, 1964, whereby he allowed the landlord opposite party's application under section 17 (3) of the West Bengal Premises Tenancy Act, 1956 and struck off the petitioner's defence against delivery of possession. The facts briefly are as follows: the petitioner is a tenant under the opposite in respect of the ground floor Flat No. 1 in premises No. 20, Bepin Pal Road, Calcutta-26 at a rent of Rs. 300/- per month from 1st August, 1961. As dispute arose about the fair rent on the 22nd November, 1961 the petitioner made an application for fixation of fair rent which was registered as Rent Control Case No. 826b of 1961 before the Rent Controller. Thereafter on the 10th July, 1962, while the application for fixation of fair rent was pending the opposite party instituted the present suit being Title Suit No. 285 of 1962 in the Fourth Munsifs court at Alipore on the ground of default for the months from December,196l, to May, 1962. The date of service of writ of summons for the suit is 17th July, 1962. On the 11th August, 1962, the petitioner made an application under section 17 (2) of the West Bengal premises Tenancy Act, on the obvious ground that there is a dispute pending as to the amount of rent payable by the tenant while the suit and the petitioner's application under section 17 (2) of the Act were pending the Rent Controller on the 31st October, 1962 fixed the fair rent at Rs. 135. 80 naiya paise per month with effect from the 1st December, 1961 and he also directed that the excess amount of rent to be adjusted against future rent from November, 1962, at the rate of Rs. 80/-per month until liquidation of the arrears. Thereafter the petitioner made an application before the learned Munsif stating that the rent had been fixed at Rs. 135. 80 np. per month with effect from 1st December, 1961 and for necessary order permitting the petitioner to deposit in accordance with the Rent Controller's order. On the 13th November, 1962, rent for the month of October, 1962 was deposited in Court at the rate fixed by the Rent Controller, i. e. , Rs. 135. 80 np. Then on the 8th March, 1963 the petitioner filed his written statement. Thereafter on the 14th April, 1963, the opposite party made an application under section 17 (3) of the Act for striking out the defence. The petitioner objected to that application on the 14th May, 1963. In the meantime what happened was that there was an appeal by the landlord from the Rent Controller's order being Rent Control Appeal No. 72 of 1962, but the landlord's appeal was dismissed on the 17th July, 1963 affirming the order of the Rent Controller.

(2.) THE order of the learned Munsif under section 17 (3) is clearly wrong in the present context. In the first place, while the petitioner's application under section 17 (2) of the Act was pending the learned Munsif could not decide the application under section 17 (3) without first determining and deciding the application under section 17 (2) of the Act. Section 17 (3) of the Act says that if a tenant fails to deposit or pay any amount referred to in sub-section (1) or sub-section (2), the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit. Therefore, the Court has to find a failure to deposit any amount referred to in sub-section (1) or subsection (2) of section 17. Sub-section (1) of section 17 gives time to the tenant to deposit rent within one month from the date of service of summons, but then sub-section (2) says that where in a suit or proceeding referred to in sub-section (1) there is any dispute as to the amount of rent payable by the tenant, the tenant shall within the time specified deposit in court the amount to be due from him together with an application to Court for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable.

(3.) IN the facts of this case it is plain that the application for determination of the rent was already pending when this suit was filed and this fact was brought to the notice of the learned Munsif by the petitioner in his petition under section 17 (2) of the Act on the 11th August, 1962 and even thereafter when the Rent Controller fixed the fair rent, the petitioner made an application before the learned Munsiff stating that rent had been fixed by the Rent Controller. Now the duty of the Court, the Munsif in this case, was dear under section 17 (2) where it is stated that on receipt of such application the Court shall having regard to the rate at which rent was last paid, and the period for which default may have been made, by the tenant, make, as soon as possible within a period not exceeding one year, a preliminary order, pending final decision of the dispute, specifying the amount, if any duo from the tenant and thereupon the tenant shall, within one month of the date of such preliminary order, deposit in court or pay to the landlord the amount so specified in the preliminary order. The order complained against did not make this preliminary order at all. The schedule of the Act under section 17 (2) shows that having regard to the provisions of this Act, the Court shall make, as soon after the preliminary order as possible, a final order determining the rate of rent and the amount to be deposited in court or paid to the landlord. The learned Munsif apparently has not followed these mandatory provisions. In fact he made no order on the application of the petitioner under section 17 (2) of the; Act. Nor did he make an older on the petitioner's application informing the court that the Rent Controller has fixed a very much reduced rent.