SHANKARLAL KERIAL ALIAS SHARMA Vs. MOOLCHAND PROSAD

JUDGEMENT

(1.) THIS is an application under section 115 of the Code of Civil Procedure against the order dated August 5,1980 passed by the learned Munsif, 1st court, Asansol in title Suit no. 10 of 1976, disposing of the applications filed by the petitioner, who was defendant no. 1 in the suit, under sub-sections (2) and (2a) of section 17 of the West Bengal Premises tenancy Act (hereinafter referred to as the act ). v

(2.) THE opposite parties nos. 1 and 2 institute the suit on January 6, 1976 against the petitioner and opposite party no. 3 for ejectment on the allegation that the opposite parties 1 and 2 are the owners of the suit premises and the petitioner was a tenant on a monthly rental of Rs. 94/- It was further alleged that the petitioner had left Asansol after assigning, transferring or sub-letting the suit premises to defendant no. 2 (opposite party no. 3 in the present rule ). The petitioner had also defaulted in payment of monthly rent since November 1972. The petitioner entered appearance on September 14, 1976 and filed applications under sub sections (1), (2) and (2a)of the Act. In the application under section 17 (1) of the Act the petitioner prayed for permission of the Court to deposit rent off the premises for the month of August 11376 and also for subsequent months. In the application under section 17 (2) The petitioner contended that there was no relationship of land lord and tenant between the plaintiffs and the petitioner. The petitioner was a tenant under Moolshahd Prasad Lai Chand Prasad, firm, in respect of the suit premises on a monthly rental of rs. 94/- payable according to English calendar month. The petitioner alleged khat the rents upto March 1975 had been amicably paid, but no receipt had been granted by the landlord. It was further contended by the petitioner that the rent for the month of 1975 was tendered but as there refusal to grant proper receipt, the petitioner deposited the rent with the Rent controller from April 1975 till July 1976. The petitioner prayed for determination of arrears rent payable, if any. In the application under section 17 (2a) of the Act the petitioner submitted that if any rent was found in arrears, the petitioner was not in a position to pay the same eta time and as such permission may be granted to deposit the said amount by instalments All the applications were opposed by the plaintiffs.

(3.) THE learned Munsif after hearing the parties and considering the materials on record held that the petitioner was a tenant under the plaintiffs. The learned Munsif disbelieved the petitioner's contention that the rent up to March 1975 had been. paid. , the learned Munsif came to the finding that the petitioner was defaulter in payment of rent since November 1972. As regards; the deposit with the Rent Controller, th learned Munsif held that there was no valid tender and thus the deposits with the Rent controller from April 1975 to July 1976 were invalid. The petitioner deposited the rent in Court from August 1976. The learned Munsif held that all the deposits, except for the month of September 1977 were valid. The learned Munsif thus found that the sum of Rs. 4,224/. was the amount payable by the petitioner as arrears of rent for 46 months, that Is, from November 1972 to July 1976 and also for the month of September 1977. Statutory interest was calculated as Rs. 2080/ -. The learned Munsif directed the petitioner to deposit the sum of Rs 6,404/-by March 1981. Relying upon the decision in 1977 (2) CLJ 327 the learned Munsif held that the provisions of section 17 (2aj| of the Act cannot be invoked while disposing of application under section 17 (2) of the Act. According to the learned Munsif, the petitioner was not entitled to deposit the amount by monthly installment.