BHOGIMONDAL Vs. MOHAN LAL SITALANI

JUDGEMENT

(1.) THIS revisional application has been preferred by the defendant/petitioner against the order No. 68 dated 15.1.93 passed by the learned Munsif, Siliguri in O.C. suit No. 71 of 1984 striking out the defence against delivery of possession under section 17(3) of the West Bengal Premises Tenancy Act while rejecting the petitioner's application dated 18.2.91 under section 5 of the Limitation Act read with 151 C.P.C. The facts may be briefly stated as follows: - In the above eviction suit under the provisions of the West Bengal Premises Tenancy Act (hereinafter referred to as the Act) brought by the plaintiff/OP, the defendant petitioner filed an application in the court below under section 17(2) and (2A) of the Act. The Trial Court disposed of the said application by its order No. 20 dated 21.5.86. On 29.1.91 the plaintiff/OP filed an application under section 17(3) of the Act for striking out the petitioner's defence against delivery of possession as he had not deposited the rents month by month as required under section 17(1) and (2A) of the Act. It is also on record that during the pendency of the said application the present petitioner filed an application under section 5 of the Limitation Act on 18.2.91 for condonation of delay in the matter of making deposits of rent in compliance with the Courts's order dated 21.5.86. The Trial Court in its impugned order has come to a finding that the deposits made by the petitioner in terms of the order dated 21.5.86 are all time barred and invalid deposits. He has also come to a finding that under the circumstances of the case the application under section 5 of the Limitation Act was liable to be rejected and as such the trial Court struck out the defence against delivery of possession under section 17(3) of the Act and also rejected the petitioner's application under section 5 of the Limitation Act.

(2.) THE Lower Court Record has been called for the purpose of proper adjudication of the matter. Mr. Rakshit the learned Advocate appearing for the petitioner has drawn my attention to the provisions of Section 17(2) and (2A) of the Act. Under section 17(2b) the Trial Court is required to pass a final order determining the rate of rent and the amounts to be deposited in Court or paid to the landlord and either fixing the time within which the amount shall be deposited or paid or, as the case may be, directing that the amount already deposited or paid be adjusted in such manner and within such time as may be specified in the order. The non -obstante clause, i.e. sub -section 2(A) provides that notwithstanding anything contained in sub -section (1) or sub -section (2), on the application of the tenant, the court may by order, - (a) extend the time specified in sub - section (1) or sub -section (2) for the deposit or the payment of any amount referred to thereunder; (b) having regard to the circumstances of the tenant as also of the landlord and the total sum inclusive of interest required to be deposited or paid under sub -section (1) on account of default in the payment of rent, permit the tenant to deposit or pay such sum in such instalments and by such date and as the court may fix; Provided that where payment is permitted by instalments, such sum shall include all amounts calculated at the rate of rent for the period of default including the period subsequent thereto up to the end of the month previous to that in which the order under the said sub -section is to be made with interest on any such amount calculated and the rate specified in sub -section (1) from the date when such amount was payable upto the date of such order. It has been contended by Mr. Rakshit that the impugned order is a consequential order to the Trial Court initial order dated 21.5.86. By the order dated 21.5.86 the tenant petitioner was directed to make certain deposits under section 17(2) and (2A) of the Act. For his alleged non -compliance the defence against delivery of possession has been struck out by the impugned order under section 17(3) of the Act. It has been submitted by Mr. Rakshit that the order dated 21.5.86 passed by the Trial Court on the tenant's application under section 17(2) and (2A) of the Act is absolutely bad in law and as such the consequential order under section 17(3) of the Act passed for alleged non - compliance of the parent order i.e. the order dated 21.5.86 is also absolutely bad in law and without jurisdiction. I have gone through the order dated 21.5.86 the operative part of which runs as follows : " .............the defendant is in arrears of 50 months starting from April, 1982 to May, 1986. The defendant is directed to deposit one arrear monthly rent at the rate of Rs. 240 together with interest at the rate of statutory rate along with current months rent from June, 1986 and shall go on depositing at that rate month by month until all the arrears are wiped out". I agree with the contention of Mr. Rakshit that this order is absolutely bad in law and that there has been no discharge of the statutory duty on the part of the Trial Court in the matter of determining the arrears of rent along with the amount of statutory interest to be paid or deposited by the tenant defendant. The Trial Court has left everything to be determined or calculated by the tenant petitioner. This amounts to refusal of discharging the statutory responsibility on the part of the Trial Court. Mr. Rakshit has referred to a decision of this High Court reported in 1978(1) CLJ (Pulin Kumar Chowdhury, petitioner v. Sachindra Mohan Bose and Anr., Opposite party). In a similar case like the present one this Court observed in the above reported case as follows : "The court below was under a statutory obligation to include in its order under Section 17(2A) (b) all arrears subsequent to the filing of the suit and upto the end of the month previous to that in which he made its said order ................ In my view, the court itself through inadvertence had failed to discharge its statutory duty in the matter of calculation of the arrear rent and interest to be paid by instalment in terms of Section 17(2A) (b) read with the proviso thereunder. There could be no question of waiver of such statutory provision. Unless and until an application under sub -section (2A) of Section 17 is disposed of by the court the provisions of sub -section (3) of Section 17 cannot be invoked. Only after a valid order under sub - section (2A) is made and there is a breach of the said order, the question of striking out the defence of the defendant under sub -section (3) of section 17 can arise".

(3.) MR . Bakshi the learned Advocate appearing for the OP has in all fairness, submitted that he cannot support the order dated 21.5.86 in view of the statutory provisions of Section 17(2) and (2A) of the Act. On the very face of it the order passed by the Trial Court on 21.5.86 on the defendant's application under section 17(2) and (2A) of the Act is not at all a valid or legal order and as such there cannot be any question of striking out the defence against delivery of possession under section 17(3) of the Act for non -compliance of the earlier order. In that view of the matter the impugned order cannot be sustained in law and along with it the earlier order dated 21.5.86 must also fail. It has, however, been submitted by Mr. Rakshit that his client has, however, deposited the rent along with arrears on his own before the Trial Court many of which are not within the prescribed time. But that aspect of the matter I should not look into while disposing of the instant application. All those deposits towards the arrears of rent current rent and interest should be taken into consideration by the Trial Court. In view of the above circumstances the instant revisional application succeeds. So far as, the order on the plaintiff -OP's application under section 17(3) of the Act is concerned. It has been conceded by Mr. Rakshit that the post -dated application under section 5 of the Limitation Act for condonation of delay in the matter of deposits already made has no independent existence. The revisional application is allowed to the extent that the impugned order striking out the defence against delivery of possession is set aside along with the order passed by the Trial Court on 21.5.86 on the tenant defendant's application under section 17(2) and (2A) of the Act. The Trial Court is directed to rehear the tenant -defendant's application under section 17(2) and (2A) of the Act in the presence of both the parties and dispose of the same according to law taking into account the deposits already made by him within two months from the date of communication of this order. The Trial Court on disposal of the 17(2) and (2A) application after hearing both the parties shall, if necessary, consider and dispose of the plaintiff's application under section 17(3) of the Act. As the suit is pending for a long time the Trial Court is directed to dispose of the suit as expeditiously as possible preferably within six months from the date of communication of this order after disposing of the defendant's application under section 17(2) and (2A) and the plaintiff's application under section 17(3) of the Act. A copy of this order be sent to the trial Court along with the L.C.R. by a special messenger at the cost of the O.P. and such cost to be deposited within a week from this day. Ordered accordingly.