JITENDRA CHANDRA DEY Vs. TARAK NATH MULLICK

JUDGEMENT

(1.) THE matter has come up before us on a reference by Amaresh Roy, J. In a suit for eviction, the defendant made an application for treating a petition under section 17 (1) of the West bengal Premises Tenancy Act, 1953 its an application under section 17 (2) of the Act. The learned Chief Judge, city Civil Court rejected the defendant's prayer on the ground that neither the plaint nor the petition raised any dispute as regards rent nor was there any prayer in the petition for determination of rent under section 17 (2) of the Act. The learned judge relied on the decision of this court in G. T. Kamdar v. S. Jhunjhunwalla, 75 CWN 372, to which we shall have to refer again in course of our judgment. Thereafter, the defendant came up on revision against the order of the learned Chief Judge. At the hearing of the revision case amaresh Roy, J, recorded in his order that it was contended before him that there are conflicting decisions of different Division Benches of this Court on the interpretation of section 17 (2) of the Act. Reference was made before the learned Judge to an unreported decision in Civil Revision Case No. 2322 of 1963 Amiya Kumar Banerjee v Bimalendu Bose of a Bench presided over by Chatterjee J. , the decision in G. T. Kamdar v. Jhunjhunwalla, 75 CWN 372, of a Bench presided over by P. N. Mookerjee J. and a decision of a Division Bench consisting of Arun K. Mukherjea and M. M. Dutt, JJ. in Saroj Kumar Kundu v. Lina Saha, ILR 1972 (2) Cal. 118 in which the learned Judges relied on the earlier decision reported in 75 CWN 372. It was contended before Amaresh roy, J. that in A. K. Banerjee v. Bimalendu Bose the Bench held that an application under section 17 (1) may be treated as one under section 17 (2)of the Act but in the subsequent reported decisions a contrary view has been taken. The learned Judge did not express any view of his own as to whether these decisions are really in conflict. He merely recorded the contentions and referred the case for disposal by a Division Bench. We may now examine the cases decided by this Court on the question raised by the petitioner before us. The earliest in point of time is the case of Amiya Kumar Banerjee v. Bimalendu Bose. There the facts were as follows: in an ejectment suit, the defendant-tenant made an application on April 3, 1962 for leave to deposit rents in compliance with section 17 (i) of the Act. He did not serve a copy of the petition on the plaintiff. No one contested the application. By an order made on the same day, leave was given to the defendant to deposit rent at his own risk. Subsequently, in an application made by the plaintiff-landlord under section 17 (3) of the Act for striking out the defence, the plaintiff-landlord contended that the deposits made by the tenant were not valid deposits. By an older dated May 2, 1963 the defence was struck out. Thereafter, on June 14, 1963 the defendant made an application in revision for setting aside that order. Chatterjee, J. delivering the judgment of the Court observed as follows :