ASHIM KUMAR MUKHERJEE Vs. STATE

JUDGEMENT

(1.) - The opposite parties instituted Ejectment Suit No. 506 of 1983 before the learned Judge, II Bench, City Civil Court, Calcutta for eviction of the petitioner from the suit premises inter alia, on the ground of default in payment of rent since June, 1982 at the rate of Rs. 185 per month payable according to the English Calendar and also on the grounds of reasonable requirement and sub-letting. On July 7, 1983 the petitioner received summons in the said suit and on August 24, 1983 he filed two applications one under Section 17(2) and the other under Section 17(24) (b) of the West Bengal Premises Tenancy Act, 1956 along with an application under Section 5 of the Limitation Act inter alia raising disputes regarding the arrears of rent as also the relationship of landlord and tenant between the parties. The learned Judge by his order dated October 30, 1984 rejected the petitioner's said application for condonation of delay considering also the merits of the petitioner's said applications under Section 17(2) holding inter alia that the petitioner was a defaulter in payment of rent since June, 1982 and there was relationship of landlord and tenant between the parties. The petitioner thereafter moved this Court in revision against the said order of rejection of the application under Section 5 of the Limitation Act and obtained a Rule being C.R. No. 2 of 1985 which was ultimately discharged by Sukumar Chakravarty, J, on 4th July, 1985. Thereafter, the petitioner on 14th of August, 1985 made an application under Section 151 of the Code of Civil Procedure in the trial Court paying for permission to deposit all arrears of rent as alleged by the plaintiff/opposite parties in the plaint together with the statutory interest and the learned Judge by his order dated 10th September, 1985, permitted the petitioner to deposit the said amount at his own risk and. consequently the petitioner deposited the entire arrears of rent together with the statutory interest amounting to Rs. 8,982.57 paise calculated from June 1982 to September 1985, as per the said order. In the meantime the opposite parties had filed an application under Section 17(3) of the aforesaid Act to which the petitioner filed his written objection. The petitioner also filed another application under Section 151 of the Code of Civil Procedure on April 30, 1 & 86 inter alia praying for treating the aforesaid deposits as valid discharge of his liability to pay the arrears of rent and also prayed for dismissal of the opposite parties Raid application under Section 17(3). The learned Judge, II Bench, City Civil Court, Calcutta by the impugned order, however, rejected the petitioner's said second application under Section 151 of the Code of Civil Procedure holding inter alia that the same was misconceived and not maintainable. Against the said order of rejection dated 7th January 1987 the petitioner has moved the present revisional application in this Hon'ble Court.

(2.) It is contended by Mr. Roy Chowdhury, learned Advocate appearing on behalf of the petitioner that since the delay in filing his application under Section 17(2) read with Section 17(2A) (b) of the West Bengal Premises Tenancy Act, 1956 was not condoned, in th6 eye of law there was no existence of such an application and it should be deemed that the petitioner did not raise any of the disputes as could be raised under Section 17(2) at all and all that the petitioner had to do was to deposit the entire arrears of rent together with the statutory interest under Section 17(1) of the said Act to avoid the penal consequences of Section 17(3) and to get relief under Section 17(4) and as the petitioner had deposited the said amount under Court's order dated September 10, 1985 such deposits should have been treated as deposits under Section 17(1) by extending the time in the facts and circumstances of the case.

(3.) Mr. Bhattacharya, learned Advocate appearing on behalf of the opposite parties, however, contended that since the petitioner had raised disputes regarding the arrears of rent and relationship of landlord and tenant between the parties in his written statement and also in his application under Section 17(2) of the aforesaid Act, he could not take recourse to the provisions of Section 17(1) of the Act subsequently, no matter whether the Court refused to condone the delay in filing such application under Section 17(2) read with Section 17(2A) and the subsequent deposit of all arrears of rent with interest in Court by the petitioner as per the Court's order dated September 10, 1985 could not be treated to be valid deposit under Section 17(1) even if the Court had power to extend the time or condone the delay in making such deposits, as according to Mr. Bhattacharya, Section 17(1) can be invoked so far as deposit of arrears of rent with interest is concerned only in those cases, where the tenant-defendant had not raised any dispute regarding rate of rent, arrears of rent or relationship of landlord and tenant between the parties.