RAMKRISHNA DEWAN Vs. KANAILAL MUKERJEE & ORS.

JUDGEMENT

(1.) In this revisional application the petitioner Ramkrishna Dewan has challenged the order of the learned Muesif, First Court, Baruipur dated June 23, 1981 in Title Suit no 292 of 1979 rejecting the petitioner's application under Sec. 17(2) of the West Bengal Premises Tenancy Act (hereinafter referred to as the Act) The opposite parties instituted the suit on Sept. 14, 1979 for eviction on the ground that the petitioner, who was a monthly tenant in respect of the suit premises on a monthly rent of Rs. 55.00, defaulted in payment of rent from Dec. 1976 Summons was served upon the petitioner on Dec. 18, 1979. The petitioner entered appearance on Jan. 7, 1980 and filed an application under Sec. 17(1) of the Act. He also filed another application under Sec. 17(2A) of the Act. The petitioner filed the application under Sec. 17(2) of the Act on June 13, 1980. The petitioner's applications under Sec. 17(2) and 17(2A) were taken up for hearing on June 16, 1981 and evidence was recorded dated June 17, 1981. Thereafter on June 18, 1981 the petitioner did not press the application under Sec. 17(2) of which was filed on June 13, 1980. The petitioner filed an application for amendment of the petition under Sec. 17(2A) dated Jan. 7, 1980 with a prayer that the said application might be treated as an application under Sec. 17(2) of the Act. The said prayer was allowed. Thereafter by order dated June 23, 1981 the learned Munsif held that the application under Sec. 17(2) of the Act was not maintainable as the petitioner had not deposited the balance amount of the admitted arrears of rent upto the date of appearance in the suit.

(2.) The petitioner has challenged the said order in the present revision case.

(3.) Mr. Basu, learned Advocate for the petitioner, has argued that the learned Munsif acted illegally and with material irregularity in not deciding the application under Sec. 17(2) of the Act. In this application the petitioner did not admit any rent to be due. He raised the plea that he had paid Rs. 600.00 and the same should be adjusted. The contention of Mr. Basu is that the petitioner was not given any opportunity to prove that he had advanced a sum of Rs. 600.00 and he was entitled to adjustment of the same against rent Mr. Basu argues that the learned Munsif should have decided the arrears of rent after adjustment of the sum of Rs. 600.00 and he should have fixed a date for payment of the amount by the petitioner. In support of his contention Mr. Basu has referred to Bhagaban Shaw Vs. Sm Simmi Goyal 1978(2) CLJ 254. In this decision it has been held that if a dispute as to the amount payable is raised by the tenant under sub-section (2), there is no further scope for any steps being taken under the first part of sub-s (1) In miking the application under sub-s(2) the tenant is required to deposit or pay the amount admitted by him to be due from him Mr. Basu has also referred to Mahesh Kumar Agarwalla Vs. Sm. Saraswati Dey 1979(2) CLJ 292. In this case it has been held that under Sec. 17(2) of the Act a tenant is under an obligation to deposit the arrears of rent and a defendant disputing to be a tenant under the plaintiff and not adjudged to be a tenant under the plaintiff by the Court has no obligation to deposit arrears of rent. The question of payment of admitted arrears of rent will arise only when there is no dispute as to the quantum of rent payable to the plaintiff an admitted landlord by the defendant an admitted tenant because dispute only as to the quantum of rent is also a dispute within the meaning of Sec. 17(2) of the Act lit has been further held that as the learned Munsif has not yet decided about me bona fide of the dispute as to the relationship of landlord and tenant but has rejected the application simply on the ground of default of payment of admitted arrears of rent, the impugned order should be set aside.