SALIL KUMAR CHAKRABORTY Vs. TARUN KUMAR SARKAR

JUDGEMENT

(1.) THIS application under Section 115 of the Code of Civil Procedure is brought against the order No. 42 dated 28. 01. 1988 passed by Sri M. Ghosh, learned Munsif, 3rd Court at Sealdah in Title Suit No. 542 of 1981.

(2.) THE petitioner was a defendant in the suit brought by the father of the opposite parties against the present petitioner for recovery of possession from the tenanted premises/portion at 5, Mall Road, Dumdum. The petitioner was a tenant therein at a monthly rental of Rs. 30/- payable according to the english Calendar month. On 30. 10. 1981 the petitioner filed an application under section 17 (1) of the West Bengal Premises Tenancy Act, 1956 in that suit and deposited the sum as an arrear rent up to the month of October, 1981 @ Rs. 30/- according to the English calendar month and also prayed before the learned trial Judge for depositing of current monthly rent from November, 1981 and onwards. On 13. 10. 1982 the opposite parties filed an application under Section 17 (3) of the said Act in the said suit alleging that the application under Section 17 (1) did not contain any prayer for condonation of delay in depositing the arrears/default amount and also on the ground that there was no provision under Section 17 (1) of the said Act to deposit the rent for the current month before its expiry and call that the deposit of the arrear amount was entirely invalid deposit under Section 17 (1) of the said Act. The petitioner filed an application under Section 151 of the Code of Civil Procedure in the same Title suit No. 542/1981 with the claim that the Court's power of striking out defence against the delivery of possession as provided in Section 17 (3) of the West bengal Premises Tenancy Act, 1956 is discretionary and not mandatory and that the deposits of two months' rent at a time were made as a measure of protection so that there could not be any default and that this practice was not being pre-judicial to the interest of the opposite parties, the rent so deposited should be accepted as valid.

(3.) THE said application under Section 151 was heard by the learned munsif, 3rd Court at Sealdah who passed an order being No. 42 dated 28. 01. 1988 by rejecting the said application under Section 151 on the ground that the order of striking out defence under Section 17 (3) of the West Bengal premises Tenancy Act reached finality with the passing of the order by the hon'ble High Court at Calcutta and on refusal of Special Leave Petition by the hon'ble Supreme Court of India as the matter could not be re-opened.