GOPAL BANERJEE Vs. MANINDRANATH DEY

JUDGEMENT

(1.) THIS Rule obtained by the tenant was directed against the order of the judge, 8th Bench of the City Civil court, Calcutta allowing the landlord's application under section 17 (3) of the west Bengal Premises Tenancy Act and striking out the defence against delivery of possession. The petitioner obtained this Rule against that order. The interesting point of law that arises on this application is how far one month's rent paid in advance can go to save a month's default within the meaning of section 17 (1) of the West Bengal Premises Tenancy Act, 1956. The matter came up before a learned single Judge in this Court who having regard to the importance of the matter referred it to this Division Bench.

(2.) THE facts giving rise to this point of law are simple. The landlord filed this application to strike off the tenant's defence against delivery of possession under section 17 (3) of the Act on the 19th April, 1965. The summons in this suit had been served on the defendant earlier on the 2nd February, 1965. The defendant appeared on the 20th February 1965. On the 3rd March 1965 the defendant-petitioner filed an application under section 17 (1) of the act for permission to deposit rent for january 1965 and that petition was granted. The tenant-petitioner filed his written statement on the 5th April 1965.

(3.) THE landlord-plaintiff-opposite party in this case alleged that the tenant defendant had defaulted in the payment of rents since March 1964. The defendant-tenant alleged that the rent for March 1964 was paid to the plaintiff-landlord opposite party by way of an adjustment for one month's rent received by the plaintiff in advance. The further defence was that rent since April 1964 had been deposited in the office of the Rent Controller. The learned judge of the City Civil Court did not proceed to investigate the alleged default from April 1964. He had passed his order for striking out the defence entirely and mainly on the basis of alleged default of the in payment of the rent for month of March 1964 incidentally it might be mentioned that there is a list of challans and the challans had been filed in court in the suit for showing payments from April 1964 onwards. It is the defendant's case that those challans have been already filed as documents and they cover dates from April 1964 to January 1965. We need not proceed to deal with this question any further having regard to the basis of the City Civil Court's decision on March default only. Therefore, the fact that the actual challans have not been tendered does not make the tenant a defaulter in this case for the month of April 1964 and subsequent months.