GOPAL SHAW Vs. KANAILAL PAKHIRA

JUDGEMENT

(1.) The present Revisional application is at the instance of a tenant and is directed against Order No. 45, dated 21. 7. 1987 passed by the Learned Munsif, 3rd Court, Howrah, in Title Suit No. 146 of 1982. Admittedly, in the instant case, the rents for March and April, 1982 had been deposited with the Rent Controller on 11th of June, 1982. The plaintiff-opposite party filed an application under Section 17(3) of the West Bengal Premises Tenancy Act praying for the defence of the tenant/defendant being struck out in view of the aforesaid belated invalid deposits. On behalf of the tenant, an application with a prayer for treating the Application under Section 17(1) of the West Bengal Premises Tenancy Act as one under Sections 17(2) and (2A) of the said Act and for extending the period for deposit had been preferred. By the impugned order the learned Munsif has disposed of both the applications dismissing the application of the defendant and allowing the plaintiff's application under Section 17(3) of the West Bengal Premises Tenancy Act.

(2.) From the impugned order it appears that the learned Munsif found as a fact that the delay in making deposits of the rents for the months of March and April, 1982 was not due to any negligence on the part of the defendant, but due to default on the part of his learned lawyer and his clerk. Such a finding has been made by the learned Munsif upon consideration and acceptance of the oral and documentary evidence adduced on behalf of the defendant. It further appears that the learned Munsif has refused to grant any relief as the defendants did not file any application whatsoever under Section 17 of the West Bengal Premises Tenancy Act on the basis of which alone his prayer for condonation could be granted. A copy of the application made on behalf of the defendant and rejected by the impugned order has been produced before me by Mr. Chowdhury, appearing in support of the Revisional application. No doubt the prayer in the said application is somewhat defective. But the fact remains that this default on the part of the defendant occurred due to mistaken legal advice and the question of not filing such an application could not have arisen if the amount of rents for March and April, 1982 had been duly deposited by the clerk of the defendant's learned lawyer. It is now well established that no party should suffer for default or negligence of his lawyer. It is also now well settled that provisions of Section 17(3) of the West Bengal Premises Tenancy Act are directory and not mandatory. I do not find any merit in the distinction sought to be raised by Mr. S. P. Roy Chowdhury on behalf of the plaintiff/landlord in confining the benefit of such pronouncements of the Supreme Court to post suit default alone - a distinction, which, in the facts of the present case, has no application. In my view, the application made by the defendant substantially contains all the averments necessary to sustain his prayer for extension of time to deposit in terms of Section 17(2A) (a) of the West Bengal Premises Tenancy Act and for condonation of delay in making such application. Mere technical defect of the application not being in proper form or not having contained appropriate prayer should not expose the tenant to the penalty of his defence being struck out where admittedly the fact is that there has been no remissness or negligence on his part.

(3.) In the result I set aside the impugned order by treating the defendant's application as one under Section 17(2A) (a) of the West Bengal Premises Tenancy Act read with Section 5 of the Limitation Act, and allowing the same. The defendant is permitted to deposit the arrear rents for the months of March and April, 1982 within four weeks from this date. If he makes the deposits, the plaintiff's application under Section 17(3) of the West Bengal Premises Tenancy Act will stand rejected. If, however, the defendant fails to make the deposit within the time as extended by me, the plaintiffs application will succeed and present Revisional application will stand dismissed with costs-hearing fee being assessed at 3 Gms.