PRASIDH NARAYAN SRIVASTAVA Vs. SARAJU PAUL

JUDGEMENT

(1.) The instant revisional application under Sec. 115 of the Code of Civil Procedure has been preferred by the defendant/petitioner against the order No. 77 dated 1.6.88 passed by the learned Munsif, Additional Court, Sealdah in Title Suit No. 138 of 1996. It appears from the impugned order that the, learned Munsif thereby rejected the petition filed on behalf of the petitioner on the same date under Sec. 151 Code of Civil Procedure praying for recalling the order dated 20.6.80 striking out the defence against delivery of possession and also his application dated 12.4.80 under section 151 Code of Civil Procedure wherein the defendant prayed for recalling the order passed by the said court on 2.4.80 whereby the learned Munsif directed him to deposit Rs. 2,000.00 at a time. In the said application dated 12.4.80 the defendant/petitioner further prayed for treating his application filed on 15.11.76 under section 17(1) of the West Bengal Premises Tenancy Act, referred to as the Act hereafter, as an application under Sec. 17(2-A) and (B) permitting him to deposit the arrears by easy instalments.

(2.) Mr. Roychowdhury the learned Counsel appearing for the petitioner has submitted that the impugned order has been passed by the learned Munsif illegally and with material irregularity resulting in failure of justice and causing irreparable injury to the petitioner for which it should be set aside by this Court. In order to appreciate the contention of Shri Roychowdhury it would be necessary to refer to the admitted facts on record as noted below:-

(3.) The instant Title Suit was filed by the landlord-plaintiff/opposite party on 25.10.76 for eviction of the petitioner on ground of default since June, 1975 in the 3rd Court of the Munsif at Sealdah where it was registered as T.S. No. 655 of 1976. On 15.11.76 the petitioner appeared and filed an application under section 17(1) of the Act for permitting him to deposit rent for the month of Oct., 1976 at the rate of Rs. 275/per month to the credit of the plaintiff-landlord. In paragraph 2 of the said application the petitioner denied the allegation of default and reserved his right to file the application under section 17(2) of the Act "as receipts not granted against adjustment". On 27.7.77 the plaintiff/OP filed an application under section 17(3) of the Act for striking out the defence against delivery of possession. On 10.5.78 the petitioner filed written objection to the said application under section 17(3) stating that his application dated 15.11.76 under section 17(1) of the Act should be treated as an application under section 17(2) of the Act. No formal prayer was, however, made in the said written objection except the prayer for rejecting the plaintiffs application under section 17(3). By order No. 20 dated 24.5.79 the Trial Court on consent of both the parties recorded that the defendant was to deposit Rs. 550.00 within 30.5.79 and a further sum of equal amount within 30.6.79 and also the current rent after which the petition under section 17(3) will be heard. From order No. 26 dated 23.8.79 it appears that the said consent order was complied with by the petitioner. The application under section 17(3) of the Act was fixed for hearing on 2.4.80. On the said date of prayer for adjournment on behalf of the defendant/petitioner was made and the defendant was directed to deposit Rs. 2,000.00 in court within 15 (fifteen) days in default of which 17.4.80 was fixed for hearing the application under section 17(3). On 12.4.80 the defendant/petitioner filed an application under section 151 of the Code of Civil Procedure for vacating the order dated 2.4.80 and for treating his application dated 15.11.76 as an application under section 17(2A) & (B) of the Act and also for permitting him to deposit the arrears by easy instalments. By order No. 32 dated 17.4.80 the Trial Court directed that on the petitioner's depositing Rs. 1,000.00 by 22.4.80 and the rest by 10.5.80 his application under section 151 Code of Civil Procedure will be put up. From the order No. 33 dated 22.4.80 it appears that the petitioner filed an application for time to deposit Rs. 1,000.00 as per previous order of the court which was rejected and the plaintiffs application under section 17(3) of the Act was fixed on 5.6.80 for hearing. The plaintiffs application under section 17(3) of the Act came up for hearing on 20.6.80 on which date the defendant/petitioner did not take any step and as such the application was heard ex parte and the defence against delivery of possession was struck out. It further appears from the record that on 22.7.80 the petitioner filed another application under section 151 Code of Civil Procedure for vacating order No. 36 dated 20.6.80 striking out the defence against delivery of possession and to re-hear the plaintiffs application under section 17(3) of the Act. In the said application the petitioner prayed for Court's permission to deposit Rs. 2,000.00 in court in terms of the earlier order No. 32 dated 17.4.80. The said application dated 22.7.80 was rejected by the court below on 28.11.80 by order No. 41. In the order No. 41 dated 28.11.80 the Trial Court referred to its order No. 30 dated 2.4.80 and the order No. 32 dated 17.4.80 which were never complied with by the defendant/petitioner. Accordingly the Trial Court rejected the application dated 22.7.80 under its order dated 28.11.80 on the ground that section 151 of the Code of Civil Procedure had no application at that stage of the suit. A civil revision was moved before this High Court against the order dated 28.11.80. By order dated 4.10.85 passed in Civil Rule No. 354 of 1981 Satish Chandra the then Chief Justice dismissed the application under section 115 of the Code of Civil Procedure filed by the petitioner and concurred with the finding of the learned Munsif made in his order dated 28.11.80. While discharging the rule His Lordship observed as follows:-