PARAMESWARI DEVI Vs. NANDLAL SARAF

JUDGEMENT

(1.) This application, under Sec. 115 of the Code of Civil Procedure, is directed against an order passed by the learned Judge, 4th Bench of the City Civil Court, Calcutta, under Sec. 17(3) of the West Bengal Premises Tenancy Act, 1956, striking out the tenants' defence against delivery of possession in a suit for ejectment.

(2.) The facts of the case, briefly stated, are these: The Petitioners are tenants in respect of premises No. 138 Cotton Street under the opposite parties 1 and 2. The contractual rent for the tenancy was Rs. 550 per month. On December 18, 1956, the predecessor -in -interest of the Petitioners applied to the Rent Controller for the fixation of a fair rent. On July 7, 1959, the Rent Controller fixed the fair rent at Rs. 250 per month with effect from June, 1957. The tenant having paid rent at the contractual rate of Rs. 550 per month upto June, 1959, there was an excess payment at the rate of Rs. 300 per month from January, 1957 to June, 1959. The excess payment was adjusted against rent due from July, 1959 to June, 1962. Thereafter from July, 1962, the Petitioners went on paying rent at the rate of Rs. 250 per month.

(3.) The then landlord, that is to say, the predecessor -in interest of the opposite parties 1 and 2, appealed against the order of the Rent Controller fixing the fair rent at Rs. 250 per month. The appeal having failed, the landlord moved the High Court under Article 227 of the Constitution against the orders of the appellate authority and the Rent Controller. On September 10, 1963, the High Court set aside the orders of the appellate authority and the Rent Controller and remanded the case to the Rent Controller for a fresh decision. On February 18, 1965, the Rent Controller refixed the fair rent at Rs. 550 per month. The opposite parties 1 and 2 purchased the interest of the previous landlord in July, 1962 and thereafter they instituted a suit for ejectment against the Petitioners in the City Civil Court, Calcutta. This suit was withdrawn on August 9, 1965,. Thereafter, the present suit for ejectment was instituted on November 1, 1965, on various grounds including that of default. In the plaint it was stated that the Defendants were defaulters since January 1957. The date of service of summons was November 17, 1965. On December 1, 1965, the Petitioner No. 3 entered appearance and on December 15, 1965, he filed an application stating that rent at the rate of Rs. 250 per month had been paid upto October, 1965 and praying for permission to deposit rent in Court at the same rate from November 1965. The Court ordered that the Petitioner might make the deposit as prayed for by him at his own risk. The opposite parties 1 and 2, that is to say, the Plaintiffs of the suit filed an application under Sec. 17(3) of the West Bengal Premises Tenancy Act, 1956, praying for the striking out of the defence of the Defendants against delivery of possession on the ground that they, having deposited rent at the rate of Rs. 250 per month even after the refixation of the fair rent at Rs. 550 per month, had made short deposits and that they, not having deposited the deficits after the institution of the suit, have failed to comply with the provisions of Sec. 17(1) of the Article The Defendants opposed the petition contending, inter alia, that the rent last paid being at the rate of Rs. 250 per month, the deposits made by them after the institution of the suit were in conformity with the provisions of Sec. 17(1) of the Act and that that being so there was no ground for striking out the defence under Sec. 17(3).