HINDUSTHAN INDUSTRIAL CO Vs. CHANDI PROSAD MORE

JUDGEMENT

(1.) THIS is an appeal under Clause 15 of the Letters patent. It arises out of a second appeal and has been preferred on a certificate granted by the learned single judge whose judgment and decree dated June 23, 1971, is the subject matter of challenge in this appeal. The tenant-defendant is the appellant. But the judgment and decree under appeal a learned single judge of this court had affirmed a concurrent decree for eviction of the appellant from the suit premises on the ground of default passed by the two courts below.

(2.) IN instituting the suit out of which the present appeal arises the plaintiff landlord who is the respondent in this appeal pleaded the appellant to be in default in payment of rent since September, 1963 and further pleaded that such default being for more than 4 months the appellant had forfeited the protection against eviction under the provisions of the West Bengal Premises Tenancy Act, 1956. Though such a claim was contested at the trial it was found that the rents for the months of september, October and November, 1963, were deposited with the Rent controller on December 24, 1963 and that such deposit was made without any prior tender to the respondent, the plaintiff-landlord. Necessarily it was held that such deposit of rent not being in accordance with law was invalid deposit and so also all subsequent deposits with the Rent Controller. In the result, the appellant was found to be in default since September, 1963. With reference to a postal receipt dated december 7, 1963 (Ext. A), a specific plea was raised by the appellant that when on that day the rent for the aforesaid three months was sent by money order to the plaintiff-respondent, the said offer must at least be considered to be a valid tender of rent for the month of november, 1963, so that deposit of rent made on December 24, 1963, should be accepted as valid deposit so far as it relates to the rent for the month of november, 1963. Such a plea, however, was rejected by the two courts below on the ground that in the absence of proof of the refused money order coupon, the postal receipt by itself would not establish any tender far less any tender in accordance with law when the plaintiff in his evidence had specifically denied that any such money order was even tendered to him. Such default in payment of rent having been established and the appellant not having availed himself of the protection under section 17 of the Act the two courts below concurrently decreed the suit.

(3.) AGAINST such concurrent decree the appellant preferred second appeal no. 647 of 1967 out of which the present appeal arises. The learned single judge accepted and agreed with the concurrent findings of the two courts below to the effect that the appellant was in default in payment of rent since september, 1963. The specific plea of the appellant that at least the rent for the month of November 1963, was validly deposited after a lawful tender referred to hereinbefore was rejected by the learned single judge on a ground additional to the ground on which the courts below had rejected the same. He held that even assuming that the appellant did tender by the money order dated December 7, 1963, the rents for the three months, namely, September, October and November, 1963, such tender would be no valid tender even for the month of November 1963, because rents for the three months were not being sent separately and when the same were being sent together, the plaintiff landlord could not have been made to accept such a money order resulting in waiver of the admitted defaults for the months of September and October, 1963. Before the learned single judge the point that was urged by the appellant was with reference to an application filed on behalf of the appellant in the trial court on March 12, 1965. It was contended that this application should have been considered as an application under section 17 (2) of the Act and disposed of accordingly and that not having been done the resultant procedural regularity had led to the appellant being denied the protection under section 17 of the Act. Such a point was not accepted by the learned single judge as according to him the application relied on was not an application under section 17 (2) of the Act. In this view, the learned single judge affirmed the judgment and decree of the courts below.