MALIRAM AGARWALA Vs. BHUDARMAL AGARWALA

JUDGEMENT

(1.) THIS rule is directed against the order No. 41 dated september 8, 1972 passed in Tide Suit no. 10 of 1971 by the Munsif, 3rd court, Howrah. The; plaintiff opposite party instituted the said suit for eviction of the defendant petitioner. Ore of the grounds alleged in the plaint was default in payment of tent. It was alleged that the defendant was in default in payment of rent from the month of February, 1970, and the rent stated to be Rs. 250/- per month. The defendant denied the plaintiffs allegation that the rent was Rs. 250/- per month but asserted that Rs. 125/- per month and that he had paid the rent up to June, 1970. Thus according to defendant's own case the rent was in arrears from July, 1970. On or about 11th March, 1971 the defendant filed an application under section 17 (2) and 17 (2a) of the West Bengal Premises tenancy Act, praying for determination of the amount of arrears and permission to deposit the amount so deter mined, in easy instalments. By order no. 34 dated 19. 4. 72 the trial court directed the defendant to deposit the amount which was admittedly in arrears i. e. from July 1970 to February 1971 at the rate of Rs. 125/- per month, within one month from that date. The defendant however did not deposit the said amount. Thereafter the defendant's application under section 17 (2)and 17 (2a) was taken up for hearing. The learned Munsif rejected the said application on the ground that the amount which was admittedly in arrears not having been deposited within the time allowed by the court the application was not maintainable. Against the said order the defendant petitioner has obtained the present rule.

(2.) MR. Ranjit Kumar Banerjee learned Advocate appearing in support of the rule contended before us that the application which was filed by the defendant was a combined application under section 17 (2) and 17 (2a) and therefore the trial court was not right in rejecting the said application as not maintainable on the ground that the admitted amount was not deposited by the defendant in terms of provisions of section 17 (2 ). Mr. Banerjee further argued that the learned Munsif ought to have extended the time to deposit the admitted amount under the provision of section 17 (2a ). Having gone through the order passed by the learned Munsif we are unable to accept this contention of Mr. Banerjee. It appears that after the combined application under section 17 (2) and 17 (2a) was filed by the defendant on 11th March, 1971 an order was made by the trial court on 19th April, 1972 directing the defendant to deposit the admitted amount of Rs. 1,000/- within one month from that date. Although the trial court has said that that order was passed under Sec. 17 (2) (a) it seems to us that that order was, and could only be, passed under Sec. 17 (2a ). Be cause under Sec. 17 (2) the tenant has to deposit the admitted amount of arrears along with an application with in the time specified in Sec. 17 (1 ). The trial court, therefore, could not, accept under Sec. 17 (2a) extend the time for depositing, the admitted amount of arrears under Sec. 17 (2 ).

(3.) THE other prayer which was made in the application filed by the defendant on the 11th March, 1971 was permission to pay the amount deter mined under section 17 (2) by easy instalments. Considerable argument were advanced before us on the question as to whether or not the court has any power under sub-section (2a) of section 17 to grant instalments for payment of the amount determined under clause (b) of sub-section (2) of that section. In our view it is not necessary for us to decide this question in the present case. The question of determination of the amount under clause (b) of sub-section (2) of section 17 ran only arise if the tenant complies with the requirements of sub-section (2) of Sec. 17 and if the application on under sub-section (2) it self is maintainable. In the present case as we have noticed earlier the tenant not having complied with the carter passed on 19th April, 1972 the explication under section 17 (2) was not maintainable. In our opinion, therefore, the trial court was right in rejecting the application filed by the defendant on 11th March, 1971.