RAM KHELOWN SHAW Vs. SM. KESHARI DEBI (KOIRI)

JUDGEMENT

(1.) This matter arises after an application under section 115 of the Code of Civil Procedure against an order dated 9.5.77 under section 13(3) of the West Bengal Premises Tenancy Act passed by Shri N. K. Biswas, Munsif, Fourth Court at Howrah.

(2.) The facts of the case are that the suit was filed for eviction of the defendant petitioner by the plaintiff opposite p y the defendant petitioner being a tenant in respect of the premises No. 38/42, Fakir Bagan Lane, Salkia. The suit was filed on the ground of default- since Jan., 1975. The case of the plaintiff opposite party was that the petitioner was a monthly tenant at a rent of Rs. 20.00 per month according to English Calender and on service of summons the defendant appeared and the date fixed for appearance was 15.12.75. On 16.12.75 after appearance an application was filed under section 17(2) and 17(2A) as well as 17(2)(b) of the Act. In the application the defendant petitioner challenged the rate of rent at Rs. 15.00and not Rs. 20.00 as alleged in the plaint, and prayed for determination of the rent. On 2.2.1977, the application under section 17(2) and 17(2A) was taken up and it was recorded that the defendant petitioner has been able to satisfy the court by documentary evidence that the rate of rent was Rs. 15.00and the plaintiff opposite party also admitted that. It was found by the learned Munsif that the petitioner paid rent from Jan., 1975 to Nov., 1975 and thereafter he deposited the rent in court on proper challan and there was thus no outstanding arrears. He held that there was no arrears of rent to be deposited in court but it is ordered that the defendant would go on depositing the current rent month by month in the court at the rate of Rs. 15.00 which was found by the court on hearing both the parties. It appears that before the order dated 2.2.77 was passed disposing of the application under section 17(2) and l7 (2A) the defendant petitioner had deposited in-court the rent for March, 1976 and May, 1976 but those were not within 15th of the following month and, therefore, on 3.5.77 the plaintiff filed an application under section 17(3) alleging that the defendant has not been depositing the current rent month by month according to law and the rent for March, 1976 and May, 1976 have been illegally deposited. As against this application made by the plaintiff opposite party, the defendant petitioner filed an objection and it was urged in that application that the statements made in the said application are not admitted and the petition is absolutely falsa and the defendant having complied with the provisions under sections 17(2) and 17(2A), the defence against delivery of possession cannot be struck off. The defendant did not dispute that the payments made in respect of March, 1976 and May, 1976 were not beyond the 15th of the following month as alleged by the plaintiff landlord. The learned Munsif on consideration of the petition and the objection under section 17(3) and after perusal of the challan came to the finding that it x appeared from the challans that the defendant deposited rent for the month of March, 1976 on 19.4.76 and for May, 1976 on 18.6.76 i.e. beyond the statutory period and thereby attracted the mischief of section 17(3) of the West Bengal Premises Tenancy Act. It is this order of the learned Munsif under section 17(3) that is being challenged before this Court.

(3.) It has been urged by the learned Advocate for the petitioner that section 17 of the West Bengal Premises Tenancy Act if read between the lines would lead to the idea that on appearance in a court after .getting summons, it is the statutory duty of the tenant to pay within one month of the service of the summons the amount of rent at which it was last paid subject to the provisions of section 17(2) of the Act and as in this case there was a dispute to the effect that in the plaint the rent was specified at Rs. 20.00 and it was the case of the defendant that it was Rs. 15.00but till the adjudication of amount by the court, it was not possible for the defendant to know at what rate the amount excluding the pre-appearance arrears were to be paid. He deposited the pre-appearance arrears and there was no preliminary order passed by the court under section 17(2)(a) of the Act. It was not possible for the defendant petitioner to know at what rate the current arrears after appearance are to be paid and therefore, if by way of abundant caution, he deposited the rent for the months of March, 1976 and May, 1976, that deposit is not statutory deposit under the law and if there was any minimum default in the matter of deposit beyond the time-limit fixed by law, then the statutory penalty cannot be attracted because the deposit was not statutory but a deposit by way of abundant caution.