DWARKADAS RAGHIUBIR PROSAD CHOUDHURI Vs. STATE

JUDGEMENT

(1.) IN this revisional application under Article 227 of the Constitution of India, the petition has challenged two orders, one being Order No. 134 dated September 18, 1986 by which his application under Section 17 (2) and 17 (2a) of the West Bengal premises Tenancy Act,1956 were disposed of by the learned Munsif determining the arrears of rent as Rs. 750. 24 from April, 1976 to september, 1978 without taking into consideration the period of default subsequent to the filing of the said applications and also without determining the entire arrears of rent payable upto the date or? which the said order was made together with interest and the Order No. 145 dated January 19, 1987 by which application filed by the petitioner under Section 17 (1) of the aforesaid Act together with an application under Section 151 of the Code of Civil Procedure read ,section 5 of the Limitation Act, were rejected.

(2.) THE opposite party instituted Title Suit No. 83 of. 1977 in the court of the learned Munsif at Purulia, subsequently re-numbered as title Suit No. 78 of 1986 Of the court of the learned Assistant district 3udge, Purulia for eviction of the petitioner from the suit premises, inter alia on the ground of default in payment of rent. The petitioner in the said suit filed applications under Section 17 (2) and section 17 (2a) of the West Bengal Premises tenancy Act. In his application under section' 17 (2) the petitioner although had not disputed the amount of rent payable by him and admitted that rent fell due since april 1976 but claimed adjustment of Rs. 1156. 15 which was due from the opposite party on account of the price of 11 bags of tobaco stalk dusts supplies by the petitioner to the opposite party and invited the court to determine the amount of rent payable after such adjustment. In his application under Section 17 (2a) the tenant prayed for extension of time and also for installments for paying the amount of rent payable by him after determining the said amount by the Court under Section 17 (2 ). The learned munsif by his order No. 134 dated 18th September, 1986 disposed of the petitioner's said applications by determining the arrears of rent at Rs. 75d. 24 due from April, 1976 to September, 1978 and granted three equal monthly installments of Rs. 250. 08 each to the petitioner to pay off the said amount. In calculating the said arrears, of rent the learned Munsif, however, observed inter alia that he found no reason to take into consideration the period-of default subsequent to the filing the said applications by the petitioner. From the said order it also transpires that the petitioner did not press his case, of adjustment of rent at the time of hearing of the said applications. Thereafter, on 2 9th September, 1986 the petitioner filed an application under Section 17 (1) together with an application under Section 15. 1 of the Code of Civil Procedure read with Section 5 of the Limitation act, praying for deposing the arrears of rent from October, 1978 upto the month of September, 1986 together with the statutory interest and further prayed for condonation of delay and also for extension of time in making such deposits inter alia on the allegations that he was under the impression that under Section 17 (2) and 17 (2a) the court was to determine the amount due calculating upto the month previous to which such determination was made and till such determination the tenant was under no obligation to pay any amount under Section 17 (1 ). The learned Munsif by his order No. 145 dated January 19, 1987 rejected the said applications holding inter alia that the application under Section 17 (1) had no legs to stand upon and it was also barred by limitation. Undoubtedly, the petitioner did not move earlier this Court in revision against the aforesaid order No. 134 dated september 18. 1986. He now seeks to challenge the said order in the present revisionai application invoking Article 22 7 of the Constitution of India. Mr. Ganguly, learned Advocate appearing on behalf of the petitioner contended that the learned Munsif in disposing of the petitioner's application as under Section 17 (2) and (2a) of the West Bengal Premises tenancy Art on September 18, 1986, should have calculated the entire amount of default upto the date on which the said applications were disposed of together with interest, and that not having been done, the Order No. 134 dated September 18, 1986 cannot be sustained in law being wholly illegal and further contends that till such determination was made under Section 17 (1) the petitioner was not required to pay any amount at ail and if the said order goes, the subsequent order No. 145 dated January, 1987 also cannot stand.

(3.) MR. Roy, learned Advocate appearing on, behalf of the Caveator/ opposite party, has opposed the submissions of Mr. Ganguly by contending inter aha that since_ there was no dispute as regards the rate of rent or the amount' of arrears and since the' petitioner himself in his application under. Section 17 (2) had admitted inter aha, that the rent fell due from April, 1976 and as the petitioner at the time of hearing f his said application did not press his case of adjustment of rent, the petitioner was to deposit the arrears of rent admitted by him along with his application under section 17 (2) and also with his application. under Section 17 (2) and also should have deposited the current rent month by month at the admitted rate as per the provisions of section 17 (1) of ' the West Bengal Premises Tenancy Act, 1956 but that not having been done, the petitioner was. not entitled to get any relief or equity in the matter and. the court was also right in rejecting the petitioner's application under Section 17 (1) of the West Bengal premises Tenancy Act as not maintainable and also' the application under Section 151 C. P. C. read with Section, 5 of the Limitation Act by refusing to extend the time and or condoning the delay in making the deposits as prayed for under Section 17 (1 ). Mr. Roy also contends that as the Petitioner did not challenge the Order No. 134 passed by the learned munsif on September 18, 1986 in revision in time, he cannot challenge the same after the period of limitation invoking article 22 7 of the Constitution of India for overcoming the said difficulty and that the contentions of Mr. Ganguly made at the time of hearing were different than what were stated in the grounds of the revision application.