FAKRUDDIN LATUWALA Vs. BHAGIRATHMULL KANODIA

JUDGEMENT

(1.) THE order dated 12th August, 1975 passed by the learned Judge, 6th Bench, city Civil Court, Calcutta has been challenged in the instant revision. In the present suit for ejectment, the tenant defendant came with a petition under section 17 (2a) (b) of the west Bengal Premises Tenancy Act, e956 with a prayer to pay the correct at a monthly instalment of Rs. 5/ -. In paragraph 2 of the said petition it was admitted by the petitioner that he had not paid rent for the months of September 1971 to March 1972. It was further stated that the tenant had been depositing rent with the Rent Controller since april, 1972.

(2.) THIS application was put up for orders on 5. 4. 74. On that very day both the parties filed a joint statement of account. Rent for the months of september, 1971 to March, 1972 at the rate of Rs. 221- per months (7 mouths)was calculated at Rs. 154 interest was calculated at Rs. 21/ -. Thus a sum of Rs. 175/- due was agreed to be paid in five equal installments. On the basis of this joint statement of account, it was ordered by the Court that the defendant was to pay the admitted dues of Rs. 175/- in five equal instalments of Rs. 35/- each,

(3.) SUBSEQUENTLY the plaintiff filed an application under section 17 (3) of the Act for striking out the defence of defendant on the allegation that the defendant had failed and neglected to pay the amount equivalent to rent month by month within the statutory period. On scrutiny, it was found by the Court below that the rent for June. September and october, 1973 had not been deposited within the time prescribed. In the result, the application under section 17 (3) of the Act was allowed. It is against this order, the petitioner tenant has moved this Court. The main contention of the tenant is that all the arrears of rent were put on record in the joint statement of account dated 5th April, 1974 and the learned Judge passed the order under section 17 (2a) (b) of the act on the consent of the plaintiffs and at that time, the plaintiffs did not raise any objection as regards other defaults alleged to have been made by the defendant and waived their right of future dispute on that point and as such, the learned Judge was wrong in striking cut the defence against delivery of possession.