JITENDRA NATH DAS Vs. KALYAN KR BANERJEE

JUDGEMENT

(1.) This rule has been obtained by the tenant defendant in a suit for ejectment instituted by the landlord opposite party on the ground of default in payment of rent. In the said suit the plaintiff opposite party filed an application for amendment of the plaint by introducing the ground of reasonable requirement of the suit premises for his own use and occupation. This application for amendment was allowed by the trial court. Against the said order the tenant defendant has obtained the present rule.

(2.) The facts which are relevant for the purpose of present rule are as follows : In the year 1967 the plaintiff opposite party instituted a suit for eviction against the defendant petitioner on the ground of default. That was Title Suit No. 309 of 1967. In that suit the trial court found that the defendant petitioner was a defaulter in payment of rent for some months. In spite of this finding the suit was dismissed on the ground that there had been substantial compliance with Sub-section (1) of Section 17 of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as 'the Act'). The trial court therefore found that the defendant petitioner was entitled to protection against eviction under Sub-section (4) of Section 17 of that Act and accordingly dismissed the suit. The plaintiff opposite party thereafter served a fresh notice to quit alleging default on the part of the petitioner for a subsequent period, and thereafter he filed the instant suit, being Title Suit No. 17 of 1971 for eviction of the petitioner. The defendant petitioner entered appearance in the suit and filed an application under Section 17 (2A) of the Act. There is no dispute between the parties that the defendant petitioner has been depositing rent in terms of the order passed under Section 17 (2A) of the Act.

(3.) The present rule came up for hearing before S. K. Datta J. before whom reliance was placed on behalf of the petitioner upon the decision in Arun Kumar Chatterjee v. Karuna Rakshit, (1974) 78 Cal WN 572 wherein N. C. Mu-kherjee J. took the view that an amendment of the plaint should not be allowed under such circumstances as in the present case. S. K. Datta J. considered a number of decisions which had been cited before him on behalf of the parties and his Lordship was unable to accept the view taken by N. C. Mukherjee J. His Lordship accordingly referred the matter to the Division Bench. The rule has accordingly come up before us for hearing.