JOGOL KISHORE GHOSH Vs. SANKAR ROY

JUDGEMENT

(1.) This is an application under Sec. 115 of the Code of Civil Procedure directed against the order number 102 passed in February, 1994 by the Assistant District Judge, 1st Court, Alipore in Title Suit No. 130 of 1994.

(2.) The suit in question is a suit for eviction of a premises tenant. The present Petitioner before this Court is the landlord and the original tenant was one Jamini Kanta Roy since death. The legal heirs and representatives of Jamini Kanta Roy are on record. The landlord -Petitioner instituted a suit for eviction on the ground of default against Jamini Kanta Roy in the past and that was numbered as Title Suit No. 76 of 1973. It was instituted on May 17, 1973 on the ground of default inter alia. But ultimately the suit was dismissed as the Defendant -tenant was given the benefit of Sec. 17(4) of the West Bengal Premises Tenancy Act. The matter came up to the Hon'ble High Court and the Division Bench of this High Court by its Order dated July 27, 1983 that the Plaintiff could not get the belief on the ground of default in view of the provision of Sec. 17(4) of the West Bengal Premises Tenancy Act.

(3.) The present suit i.e. Title Suit No. 130 of 1984 has also been filed on the ground of subsequent default. In this suit the opposite parties filed a petition under Sec. 17(2) of the West Bengal Premises Tenancy Act challenging the relationship of landlord and tenant, secondly claiming that they are not defaulters because of the fact that they deposited the rent month by month with the Rent Controller but in some of the challans the surname of the landlord has been inadvertently mentioned by the Advocate's clerk as Roy in place of Ghosh and there is also in some challans wrong mentioning of the premises number although the name of the landlord was correctly written in such challans. In short, mistakes in this form or that form cropped up in some of the challans by which rent was deposited. But according to the Plaintiff -Petitioner those deposits were invalid deposits and in view of the proviso to Sec. 17(4) of the West Bengal Premises Tenancy Act the opposite party -tenants are not entitled to get the benefit of Sec. 17(4) of the West Bengal Premises Tenancy Act for the second time and as such their petition under Sec. 17(2) of the West Bengal Premises Tenancy Act is infructuous, misconceived and not maintainable in law. The learned trial Court, on the other hand, held those deposits of rent as valid deposits relying on several decisions of this High Court and as well as of the Supreme Court. In short, the trial Court found the opposite party -tenants not defaulter and directed them to deposit the rent month by month within fifteenth day of the next month and thus the petition under Sec. 17(2) of the West Bengal Premises Tenancy Act was disposed of.