TARAK NATH GUPTA Vs. KARUNA KUMAR CHATTERJEE

JUDGEMENT

(1.) THE first opposite party brought the present suit for recovery of khas possession of premises No. 39, Justice Chandra Madhab Road against the present petitioner and certain other persons on the allegation that the present petitioner was a monthly tenant under him at a rental of Rs. 500/- per month, that the tenancy had been duly determined by a notice to quit and that ''he was a habitual defaulter in the matter of payment of rents in respect of the said premises and defaulted in paying rent to the plaintiff from the month of August, 1953. " After service of summons on the petitioner but before he had filed his written statement in the suit, the plaintiff made an application praying that the defence of defendant No. 1 against delivery of possession should be struck out and the hearing of the suit should be proceeded with ex parte. It was alleged in that application that in spite of due service of summons on the defendant No. 1 he had failed and neglected to deposit in Court the amount in default and also "failed and neglected to deposit or pay month by month by the 15th of each succeeding month a sum equivalent to the rent at the rate. " It is reasonable to think that by the words "that rate" was meant rent at Rs. 500/- per month. The present petitioner objected to this prayer stating, inter alia, that though the rent had been paid by him at Rs. 500/- per month, it had been decided in a money suit brought by the plaintiff against him for arrears of rent at that rate, that rent was realizable only at the lesser rate of Rs. 300/- from August, 1953. He also alleged that he was entitled to adjust and set off any rent due from him against certain amounts said to have been paid by him for repairs and improvements of the premises and for paying owner's share of Corporation rates. The main contention urged for him at the hearing of the application was that as a dispute had been raised by him as regards the amount payable, sec. 17 (1) had no application, and the Court had no jurisdiction to make any order striking out his defence under sec. 17 (3) before dealing with the dispute and passing proper orders thereon as regards the amount payable. It was also urged that as no written statement has up to that date been filed, an order striking out the defence would be premature. The learned Judge was of opinion that he could in law strike out a defence even though no written statement had been filed. He stated as his opinion that "it would be merely piling unreason upon technicality to direct the defendant to file a written statement and then suffer its rejection when in law he is no longer entitled to raise any defence against his eviction". He was further of opinion that any dispute under sec. 17 (2) had also to be raised by the tenant within the time limit prescribed by sec. 17 (1), that is, a month from the date of the service of summons, and that if the tenant did neither deposit or pay the undisputed rent, nor raise a dispute as to the amount of rent which is stated or claimed in the plaint and invite a determination of the same by the Court within the time limit prescribed by sub-sec. (1), the landlord was entitled to have the defence struck out.

(2.) I have no hesitation in agreeing with Mr. Bakshi who appears on behalf of the petitioner that it is absurd and unrealistic to strike out a defence before a written statement has been filed. The law does not, in my opinion, entitle the Court to anticipate a defence and strike out the defence in anticipation. If an application under sec, 17 (3) is made by the landlord before the written statement raising a defence against ejectment has been filed, the proper course for the Court to take is to reject the application as premature; or taking the most favorable view to the landlord, he may perhaps keep such application pending till such a written statement is filed, and then if a written statement is tiled and defence against ejectment, raised, the Court could take up the application under sec. 17 (3) and if on considering the fact he is of opinion that the defence should be struck out, he will make an order that the defence that has been made to be struck out.

(3.) THIS view on the first question raised before us however is of little assistance to the petitioner for as, since the order was made, a written statement raising a defence against ejectment has been filed, I would have no hesitation unless the other grounds taken by the petitioner succeed, either to make an order ourselves striking out the defence which has now been taken or to direct the trial Court to pass proper orders striking out the defence. The real question for our consideration therefore is whether the learned Judge is right in his view that unless a dispute is raised by a tenant within the time limit of one month from the date of service of summons prescribed by sec. 17 (1), there would be no need for the Court to deal with such dispute and the landlord would be entitled to an order under sec. 17 (3) striking out the defence since it is found that the amount for rent which is stated or claimed in the plaint has not been disputed. For a proper understanding of the position, it is necessary to consider the first three clauses of sear. 17. They are set out below. "17 (1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in sec. 13, the tenant shall, within one month of the service of the writ of summons on him, deposit in Court or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of eight and one-third per cent. per annum from the date when any such amount was payable upto the date of deposit, and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate. (2) If any suit or proceeding referred to in sub-sec. (1) there is any dispute as to the amount of rent payable by the tenant, the Court shall determine, having regard to the provisions of this Act, the amount to be deposited or paid to the landlord by the tenant in accordance with the provisions of sub-sec. (1 ). (3) If a tenant fails to deposit or pay any amount referred to in sub-sec. (1) or sub-sec. (2), the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit. "