AMAL KUMAR ROY Vs. BISWANATH SEAL

JUDGEMENT

(1.) THE opposite party instituted a suit against the petitioner for his ejectment from the suit premises, which was held by him under the said opposite party as a monthly tenant at a monthly rent of rs. 40/- payable according to English calender month, on determination of the tenancy. The petitioner entered appearance in the suit being Title Suit no. 247 of 1947 in the Court of Third munsif at Alipore on January 9, 1975 even though no summons was served on him. Thereafter he filed an application under section 17 (2) and 17 (2) (A) of the West Bengal Premises tenancy Act on January 14, 1975 raising some dispute in regard to the payment of rent. He further prayed that he should be permitted to deposit the amount as would be determined by easy monthly instalments. The said application was allowed on December 17, 1975 directing the petitioner to deposit the sum of Rs. 850. 80 P being the arrears of rent with interest by 12 monthly instalments. The said order was passed on consent.

(2.) ON November 28, 1975 the opposite party filed an application under section 17 (3) of the Act praying for striking out the defence against the delivery of possession on the ground that the petitioner defendant had deposited the rent in the name of one of the co-owner plaintiffs and as such the deposits were invalid. This application was heard on contest by the learned Munsif who by his order No. 36 of July 23, 1976 held that the defendant petitioner had duly complied with section 17 (1) of the Act by depositing the rent equivalent in the name of biswanath Seal, plaintiff in his both capacities for self and as a Trustee. By order of the said date the application under Section 17 (8) was dismissed.

(3.) THE plaintiff thereupon filed an appeal against the said order before the District Judge. Alipore and by his order dated 9th November. 1976, the learned District Judge held that the appeal before him was maintainable in view of the decision in Iswar Singh kripal Singh and Co. vs. Rajputana Trading co. Ltd. 77 C. W. N. page 326 and there was nothing in the decision in amin Chand v. Mamalbai 80 C. W. N. 740 which bars such appeal. On merits the learned Judge held that the deposits were illegal and ineffective as the deposits admittedly were made in the personal name of Biswanath Seal. Accordingly the appeal was allowed and the plaintiff opposite party's application under section 17 (3) was also allowed striking out the defence against the delivery of possession. The present Rule has been obtained by the defendant petitioner against this order.