LAKPAT RAI MAKWAHI Vs. RADHESHYAM ALIAS RADHAKISSEN KANORI

JUDGEMENT

(1.) THIS revisional application under section 115 of the Civil Procedure Code is directed against the order of learned Munsif dated the 22nd, August, 1964 refusing to review under order 47, Rule I of the Civil Procedure Code an order passed by him on the 20th March, 1964 striking out the defenses against delivery of possession.

(2.) THE material facts are as follows : The opposite party brought a suit on the 26th June, 1961 for ejectment against the petitioner on the ground of default in payment of rent from the month of November, 1960. There were applications under section 17 (2) as well as 17 (3) of the West Bengal Premises Tenancy Act, 1956 which are not really relevant for the purpose of the instant matter. The suit was decreed ex parte on the 12th July, 1962. The defendant tenant made an application under order 9, rule 13 of the Civil Procedure Code, which was allowed and the suit was restored on the 10th October, 1963. On 26th November, 1963 the landlord made an application under section 1 (3) of the West Bengal Premises Tenancy Act, 1956 for striking out the defenses against delivery of possession on the ground that the defendant defaulted in paying rent for the months from November, 1962 to September, 1963. The Plaintiff's petition was allowed and the defenses against delivery of possession was struck out on the 20th March, 1964. There was an application for review of that order and that application was rejected on the 22nd August, 1964. This revisional Application is directed against that order of the learned Munsif.

(3.) MR. Panda appearing on behalf of the tenant petitioner contends that in view of the definition of "tenant" in the West Bengal Premises Tenancy Act, 1956 that a "tenant" does not include any person against whom any decree for eviction has been made by a court of competent jurisdiction, the petitioner ceased to be a "tenant" for the purpose of Section 17 (3) from the date of the ex parte decree till 10th October, 1963, the date on which the suit was restored. Mr. Panda contends that for the; period, namely, the period from the 12th July, 1962 to 10th October, 1963 which includes the period of default as alleged in the application under section 17 (3), there was no liability on the part of the petitioner to pay or deposit any rent under section 17 and that, therefore, the order under section 17 (3) cannot be sustained. On the other hand, it is contended by Mr. Ghosh that as soon as the suit was restored to file on 10th October, 1963 the suit must be deemed to have continued during the period from 12th July, 1962 to 10th October, 1963, that the defendant; should have deposited all arrears of rent of that period immediately after the suit was restored and that there was no bonafide attempt on the part of the defendant to deposit those arrears. It is not possible for me to agree with Mr. Ghosh. After the ex parte decree was passed the defendant did not come within the definition of "tenant" in the West Bengal Premises Tenancy Act, 1956 and for the purpose of section 1 the suit which was decreed on 12th July, 1982 began to continue only after the suit was restored to file. In that view of the matter there was no liability upon the defendant to deposit rent under section 17 from the date of the ex parte decree till the date of restoration. I am told by Mr. Panda that rent for the period subsequent to the restoration is being deposited in accordance with law.