ROY AND CO Vs. MAHABIR PROSAD RAJGHORIA

JUDGEMENT

(1.) THE moot point for determination in this appeal arising from the judgment and decree passed by the learned Chief Judge, City Civil Court, Calcutta, is whether "relief" against eviction under the proviso to section 17 (4) of the west Bengal Premises Tenancy Act, 1956 (hereinafter referred to as. "the Act" For the sake of convenience) is to be granted by the court upon adjudication of all the materials on record in a suit and cannot be affected by bipartite agreement between the parties to a suit, out of court and submitted to court for disposal of the suit on the basis of that bipartite agreement or compromise.

(2.) THE plaintiff-respondent filed previously on 12. 10. 66 a suit for eviction of the defendant from an office-room at the first floor of premises No. 7, Pollock Street, P. S. Hare Street, Calcutta, (hereinafter called "the suit premises" for the sake of convenience) on the ground of default in payment of rent and on other grounds. That suit, being ejectment Suit No. 182 of 1966. , was decreed only for costs against the defendant-appellant in terms of a petition of compromise, which formed a part of the decree. One of the terms of that petition of compromise was that it was a case of first default and the defendant-appellant had complied with section 17 (2) of the Act and had made all deposits of rent and as such was entitled to relief under section 17 (4) of the Act and there would be a decree only for costs of the suit. On the basis of that petition of compromise, that Ejectment suit No. 1824 of 1966 was decreed only for costs on compromise on 30. 8. 73. Subsequently, the plaintiff-respondent filed another ejectment suit, being Ejectment Suit No. 57 of 1975, against the appellant for eviction of the appellant from the suit premises on the ground of default in payment of rent since August, 1973, after service of a notice of ejectment, the validity of which was not disputed in this appeal. The defence of the appellant was that there was no default in payment of rent as there was amicable payment of rent from August, 1973 to March, 1974, though without receipt, and there was deposit of rent in the office of the Rent Controller from April, 1974. The learned chief Judge, after recording evidence, decreed the suit for eviction on disbelieving the alleged plea of payment by the appellant for the months from August, 1973 to March, 1974. One of the grounds argued before the learned Chief Judge, at the time of hearing of that ejectment suit no. 57 of 1975, was that the relief against eviction in the earlier Ejectment Suit No. 1824 of 1966, was not granted by the court after coming to a finding in that earlier Ejectment Suit that it was a case of first default by the appellant in payment of rent for four months within a period of 12 months. This contention of the appellant was not accepted by the learned Chief Judge, who decreed the suit for eviction. Being aggrieved by this judgment and decree passed ' by the learned Chief Judge, the present appeal has been filed.

(3.) MR. Sen, the learned Advocate for the appellant, does not challenge the finding of the learned Judge that there was no payment of rent amicably for the period from August, 1973 to March, 197*. He does not challenge the finding of the learned Chief Judge that there was default by the defendant-appellant in payment of rent in respect of the suit premises. His sole contention is that as the earlier suit ended in a decree for costs only on the basis of a petition of compromise, it cannot be at all stated that a relief against eviction was granted by the court in that earlier Ejectment Suit after coming to a finding about such first default! on the basis of the materials on record in the earlier suit. The contention is that Section 17 of the Act controls section 13 of the Act, under which a decree for eviction can be passed on the various grounds mentioned in section 13 (1) of the Act, "notwithstanding anything to the contrary in any other law". Mr. Sen contends that this non-obstante clause in section 13 (1) of the Act goes to show that in the absence of determination of first default by the court on the basis of the materials on record in the earlier ejectment suit, no relief can be said to have been granted by the court in the earlier suit against eviction and hence, the appellant is protected from eviction in the present ejectment suit as the default in payment of rent by the defendant in the present ejectment suit will be his first default.