JITENDRA NATH DAS Vs. BIJOY LAL DAS

JUDGEMENT

(1.) This is a second appeal by Jitendra Nath Das, the defendant of the original suit in which the plaintiff-respondent Bijoy Lal Das obtained a decree for eviction against the former in respect of the suit premises. An appeal was taken against that decision before the District Judge, but it was dismissed.

(2.) The plaintiff brought the suit against the defendant, a tenant in respect of the suit premises under the West Bengal Premises Tenancy Act and obtained a decree for eviction of the defendant on the ground of arrears of rent. The learned Munsif of the trial court found that the defendant was in arrears of rent and that he was not entitled to get any protection. It was also found that ejectment notice was duly served upon the defendant through post by certificate of posting. In the appeal below, the learned Subordinate Judge concurred with the finding of the learned Munsif. Only one point was urged at the time of hearing of the appeal below regarding the service of notice of ejectment under Section 106 of the Transfer of Property Act. In particular, it was contended that the address of the defendant written on the envelope containing the ejectment notice was not correct. The learned Subordinate, Judge considering the evidence on record and the facts and circumstances held that the notice was duly posted under certificate of posting with correct address of the defendant and that it was duly served upon the defendant. The contention of the appellant was not accepted and the appeal was dismissed.

(3.) In the present appeal Mr. Abinash Chandra Bhattacharya appears on behalf of the appellant and Mr. Anjit Kumar Ganguly for the respondent. The first contention raised by Mr. Bhattacharya is that the court below did not consider as to whether the appellant was entitled to get protection against eviction, the present case being the first one on ground of default. In this connexion he wants to rely upon Sub-section (4) of Section 17 of the West Bengal Premises Tenancy Act. First of all it must be said that in the appeal below at the time of hearing the finding on the question of default was not challenged. However, I find from the discussion of the trial Court that the matter was thoroughly discussed and considered and it was found that the defendant was in arrears of rent and the record shows that the defendant, after appearance in the suit, did not comply with the provision of Sub-sections (1) and (2) of Section 17 of the West Bengal Premises Tenancy Act. Some arrears of rent were not deposited. If the defaulting tenant wants to take advantage of the protection under Sub-section (4) of Section 17, he must have to comply with the provisions of Sub-sections (1) and (2) of Section 17 of the Act. In the present case for non-compliance with Sub-sections (1) and (2) of Section 17 of the West Bengal Premises Tenancy Act, the defendant cannot get any protection against eviction.