GOLAM KABIR Vs. D S R EBENEZER

JUDGEMENT

(1.) THE opposite party instituted Ejectment suit No. 12 62 of 1976 in the City Civil Court at Calcutta against the petitioner alleging inter alia that the petitioner in the present Rule was a monthly tenant under the opposite party in respect of. Flat No. 5 in premises No. 57, Elliot road, Calcutta-16 at the rate of Rs. 350/- per month payable according to the English Calendar month, and he was a defaulter in payment of rent since the month of March, 1976. The petitioner filed applications under Section 17 (1), 17 (2) and (2a) (a) and (b) of the West Bengal Premises Tenancy Act, 1956, and the said applications were opposed by the opposite party by filing written objections. The learned Judge, 5th Bench, city Civil Court, Calcutta by his order dated 27. 9. 82 after adjudicating the question of default held that the arrears of rent due from the petitioner was Rs. 17,757. 60 P and the petitioner was directed to pay the said arrears of rent by instalments at the rate of Rs. 600/- per month in addition to the current rent of Rs. 350/- per month. The learned Judge although in his said order had found that the petitioner was in arrears of rent for 58 months, he held that the petitioner was a defaulter in payment of rent for 50 months. The learned judge also did not direct the petitioner to deposit the statutory interest accrued on the total amount of arrears of rent. Against the said order the opposite party moved a Revisional Application in this Hon'ble Court on 15. 10. 82 and obtained a Civil Order. Ultimately, however, the said Civil order being No. 3250 of 1982 was rejected by this Court on 17. 12. 82 as no one appeared on behalf of the petitioner at the time of hearing of the said Civil Order. Subsequently, an application for restoration was also filed in this Court which was also rejected on June 24, 1983. The opposite party in the meantime filed an application for review, before the learned Judge of the Court below on 9. 10/82, of his earlier order dated 27. 9. 82 which was opposed by the petitioner and at the time of hearing of the said review application it was contended on behalf of the petitioner that since the order dated 27. 9. 82 was challenged in revision in this Court and the revisional application was disposed of by this Court, the said order had merged with the order of this Court and as such the said order could not be reviewed by the learned judge and in support of his said contention the petitioner cited the decision reported in A. I. R. 1970 S. C. page 1. The learned Judge 5th Bench, City Civil Court, Calcutta, however, vide his order no. 92 dated 15. 7. 83 allowed the said application for review inter alia upon a finding that since the High court did not reject the opposite party's application for revision after hearing both parties, it could not be said that the order dated 2 7. 9. 82 had merged with the order of the High Court and that there were errors apparent on the fact of the records of the case inasmuch as although by the said order dated 27. 9. 82 , the Court below had found that the petitioner was a defaulter for 5 8 months yet it committed an error in calculating months of default as it had said that the petitioner was to pay arrears of rent for 50 months only and the Court below also made an error in not directing the petitioner to deposit the statutory interest. Against the said order dated 15. 7. 83 the petitioner has moved this Court in Revision and obtained the present Rule.

(2.) MR. P. Singh, the learned Advocate appearing on behalf of the petitioner has submitted before me that since this court had disposed of the Civil Order No. 3250 of 1982 obtained by the opposite party against the order dated 27. 9. 82, by rejecting the revisional application upon which the said Civil order was issued the said order (Bated 2 7. 9. 82 had merged with the order of this Court1 and the said order could not be reviewed by the learned Judge of the Court below. Subsequently, mr. Singh in support of his contention referred to the above decision of the supreme Court reported in AIR 1970 SC at page 1.

(3.) MR. Singh has also contended that payment of interest at the statutory rate on the total amount of arrears of rent is not mandatory according to the provision of Section 17 (2)of the West Bengal Premises Tenancy Act and it is not obligatory for the' Court while directing the tenant to deposit the arrears of rent under Section 17 (2) to direct the tenant to deposit also the interest on the amount of rent determined and on such ground the court ought not to have reviewed its earlier order and in support of his contention Mr. Singh referred to the decision reported in 78 CWN 570.