RANJIT KUMAR DEY Vs. BHUPABALA MITRA

JUDGEMENT

(1.) THE defendant-appellant was sued for ejectment by the plaintiff-respondent in 1957 on the allegation that he was a tenant under the plaintiff and committed default in payment of rent for the suit-premises since February, 1955 and was accordingly liable to be evicted. Under section 17 (1) of the west Bengal Premises Tenancy Act, 1956, the defendant, if he was a tenant, was required to deposit in Court or to pay to the landlord, within one month of the service of the writ of summons on him, the amount of rent in arrears with interest and also to continue to deposit or pay month by month the amount of current rent and on his failure to do so, the Court, under Section 17 (3) of the Act, was to strike out his defence against the delivery of possession. The defendant, within the aforesaid period of one month, filed an application in the trial court contending that he was never a tenant under the plaintiff but was occupying the suit-premises as a co-sharer of the plaintiff and the defendant accordingly prayed in the application that "it may be put on record that the provisions of Section 17 of the West Bengal premises Tenancy Act, 1956, or any provisions thereof is not applicable to the present case". In his written statement also, the defendant reiterated that he was not a tenant but was occupying the suit-premises as a co-sharer thereof.

(2.) IN view of the frame of the application and the prayer therein, the trial Judge thought that no action on the application was called for and accordingly took no action. Strangely enough, the plaintiff-landlord herself filed an application thereafter under Section 17 (2)contending that since the defendant denied relationship of landlord and tenant, that issue was required to be determined so that "arrears of rent and damages in lieu of rent due by the defendant to the plaintiff in respect of the premises in suit be ascertained and determined by the Court for deposit before the Court in accordance with the provisions of Sub-section (1) of Section 17 of the said Act". Since compliance with Section 17 (1) protects the tenant from eviction and non compliance therewith renders his defence liable to be struck out, it is difficult to understand as to how the plaintiff could at all be anxious for deposit by the defendant in accordance with Section 17 (l ). This application, however, was not pressed by the plaintiff when the same was called on for hearing. The plaintiff having thus not pressed his application under Section 17 (2), the Court ordered that the issue in the suit relating to relationship of landlord and tenant between the parties, which was to be taken up for hearing along with the said application, would be decided along with the other Issues at the trial. The Court thereafter proceeded to try the suit in due course and decreed the suit on 16. 6. 1959 on the finding that the defendant was a tenant under the plaintiff in respect of the suit-premises and defaulted to pay rent for a period of more than fifteen months.

(3.) IN assailing the judgment and decree with his usual forceful felicity, Mr. R. N. Mitra, the learned Counsel for the defendant-appellant, has developed his argument in the following manner. Mr. Mitra has urged that even though the defendant in his application referred to above did not pray for any positive action to be taken or for any relief to be granted by the Court, the nevertheless categorically raised therein a dispute as to the existence of relationship of landlord and tenant between him and the plaintiff. Mr. Mitra has argued that it has now been authoritatively settled by this Court in the Division bench decision in Biswanath v. Annapurna (65 CWN 149), approving the earlier single-Judge decision in Ganesh v. Manmatha (6 3 CWN -Notes - 26), that a dispute as to the existence of relationship of landlord and tenant between the parties was also "a dispute as to. the amount of rent payable by the tenant" within the meaning of section 17 (2) of the Act, as it stood then before its substitution by the Amending Act of 1959 coming into effect on and from 29. 2. 1960 and, therefore, as held in a later Division Bench decision in Upendranath v. Sasthi (83 CWN 662), the Court was obligated to decide that dispute at an earlier stage and committed an error of law in deferring the decision thereof to the final hearing. Mr. Mitra has submitted that even if such dispute; which was to be decided before the hearing, was decided against the defendant and he was held to be a tenant, the defendant would have , been entitled to deposit the entire rent as determined and in that case under Section 17 (4) no decree for eviction could be passed against him on the ground of default. Section 17 (2) as it stood then when the instant suit was filed and disposed of, before the same was substituted in 1960 by the Act of 1959, provided as hereunder : -