HARIPADA KANUNGO Vs. N N SHAH

JUDGEMENT

(1.) THIS appeal under clause 15 of the Letters Patent is by the defendant tenant and arises out of a suit for eviction. The appeal is directed against the judgment and decree dated September 1, 1972 passed by our learned brother M. M. Dutt J. in an Appeal from Original Decree No. 16 of 1972 whereby our learned brother affirmed the judgment and decree dated November 29, 1971 passed by the learned Chief Judge, City Civil court Calcutta decreeing the plaintiff's suit for eviction, certain facts are not in dispute and may shortly be set out as follows:

(2.) THE plaintiffs-respondents instituted ejectment suit No. 903 of 1968 in the city Civil Court seeking to evict the tenant-appellant from a shop from at premises No. 129 Radhabazar Street, Calcutta on various grounds including a ground of default in payment of rent. At this stage, however, we are only concerned with the ground of default as that had been the only ground on which the suit had been concurrently decreed by the courts below. Plaintiffs alleged that the defendant appellant was in default since January 1967. On the records the summons of suit having been served on the defendant appellant on July 27, 1968 he appeared on or about August 14, 1968. On that date, the defendant appellant filed an application praying for permission to deposit the rent for the month of July 1968 in court and also the rents for subsequent months. Court gave him the permission to do so. It appears that on September 6, 1968 the defendant appellant filed another application pleading that he is in arrears in respect of rents for the month of january, February and March, 1967 and merely prayed for permission to deposit the said arrears along with interest under section 17 (1) of the West bengal Premises Tenancy Act. Obviously the application was not filed within 30 days from the date of service of the summons in terms of section 17 (1 ). On this, the court directed that the defendant-appellant may deposit the said amount "entirely at his own risk". Accordingly, the defendant appellant deposited the said admitted arrears on that date.

(3.) THE plaintiffs-respondents thereupon filed an application on April 8, 1969 under section 17 (3) of the said act praying for striking out the defence of the defendant against delivery of possession on the ground that the defendant did not deposit the rent for the month of July 1968 and also the arrears of rent for the aforesaid three months, namely, January, February and march, 1967 within 30 days from the date of the service of summons upon him. The tenant appellant contested this application by filing an objection thereto merely pleading that he was not in default as alleged. The learned Judge in the City Civil Court allowed the aforesaid application of the plaintiffs-respondents by an order dated May 30 1969 upon a finding that the rent for the month of July, 1968 being deposited on September 13, 1969 and the rents for the aforesaid three months in arrears having been deposited on September 6, 1968 both beyond 30 days from the date of service of the summons, the tenant-appellant had failed to comply with section 17 (1)of the Act and as such his defence is liable to be struck out. The tenant-appellant's defence was accordingly struck out and once the tenant appellant lost the protection under the Act the suit was contested on other grounds as to the validity of the notice and existence of relationship between landlord and tenants, The suit was accordingly decreed by the learned Chief Judge on november 29, 1971 on a finding that the relationship of landlord and tenant had been well established as also the notice of ejectment and suit in accordance with law.