RUBY BANERJEE Vs. MECHANICS ENTERPRISES PVT LTD

JUDGEMENT

(1.) On being sued for ejectment op the ground of default and also other grounds, the tenant petitioner filed an application under S.17(2) and (2A) of the West Bengal Premises Tenancy Act disputing her liability to pay any rent on the ground that it was agreed by the landlord-opposite party that the cost of repairs made by her in respect of the suit-premises would be adjusted towards the rent and that on such adjustment no amount of rent would be due from or payable by her. The application having been rejected by the trial Court, the tenant has moved this Court in revision and we have heard the learned Counsel appearing both for and against the revision at great length. As the case at hand involves a proper construction of the provisions of S.17(2) of the West Bengal Premises Tenancy Act, the same are reproduced hereinbelow :

(2.) A literal construction of the above-quoted Sub-Sec. (2) may give rise to the impression that the provisions thereof would operate only when a portion of the rent alleged to be in arrears is admitted by the tenant to be due from and payable by him as the Sub-Section provides that the tenant shall deposit in court the amount admitted by him to be due from him along with the application under that Sub-Section for determination of the rent payable. But where, as here, the tenant asserts that as per agreement with the landlord no amount of rent is due from or payable by him as the entire amount alleged to be in arrear stands adjusted towards the cost of repairs undertaken by the tenant in respect of the suit-premises, there is obviously a "dispute as to the amount of rent payable by the tenant" within the meaning of S.17(2). And in such a case, no amount being admitted by the tenant to be due from him, no liability to deposit any amount admitted by him can obviously arise. Lex non cogit ad impossibilia and a tenant cannot obviously deposit any amount as admitted by him to be due where he in fact admits none and asserts that no amount is due.

(3.) We are inclined to think that where he tenant denies his liability to pay any amount as rent and does not admit any portion hereof to be due from him, he is nevertheless raising a "dispute as to the amount of rent payable" by him within the meaning of S.17(2) of the Act and the tenant is therefore entitled to ask that, notwithstanding his case of 'no-liability' to pay any amount, his liability,if any, to deposit any amount towards rent if payable, be determined by the court under S.17(2). We are of the view that even though the letters of S.17(2) require that, while making an application thereunder, "the tenant shall . . . . . . . deposit in court the amount admitted by him to be due from him", the provisions on their proper interpretation would require payment of such amount, only if any such amount is admitted by the tenant to be due and payable.