KRISHNA PADA MONDAL Vs. MAHAMAYA MALLICK

JUDGEMENT

(1.) These two Revisional applications are directed against Order No. 110, dated 11.3.1987 passed by the Learned Judge, 11th Bench, City Civil Court, Calcutta, in Ejectment Suit No. 188 of 1983. The Suit is one for eviction. By the impugned Order the Learned Judge disposed of the prayer for reliefs under Section 17(2) read with Section 17(2A) (b) of the West Bengal Premises Tenancy Act. It is to be noted at this stage that the application preferred by the defendant was composite one praying for reliefs as mentioned hereinabove. As far as relief under Section 17(2) was concerned by an Order being Order No. 48, dated 26th of June, 1984 the Learned Judge dismissed the application under Section 17(2) of the West Bengal Premises Tenancy Act as not maintainable, the admitted amount of arrears not having been deposited at the time of filing of application and the said Order No. 48 had been challenged by a subsequent Revisional application on behalf of the tenant with an application for condonation of delay under Section 5 of the Limitation Act, such Revisional application again had been dismissed upon dismissal of the application under Section 5 of the Limitation Act by a Learned Judge of this Court.

(2.) Certain factual aspects of the case are required to be noted. Admittedly, the defendant was a tenant under the Vendor of the present plaint' one Nagendra Nath Palit. The plaintiff purchased the Suit property on 20th November, 1981 and instituted the present Suit on or about 10th of December, 1982 on the grounds of default and unlawful sub-letting. The period of default was alleged to be since August, 1981. The tenant entered appearance in the said Suit and filed the aforesaid application. In evidence it was admitted on his behalf that the tenant was a defaulter for ten days in November, 1981 and the months of December, 1981, January, 1982 and March 1982. In the application he claimed adjustment against payment of Corporation taxes by him on behalf of the erstwhile landlord. I have already recorded that the Revisional application against Order No. 48 dismissing the application under Section 17(2) of the West Bengal Premises Tenancy Act as not maintainable due to non-fulfillment of the pre-conditions, has been held to be barred by limitation. The Learned Judge while considering the prayer under Section 17(2A) (b), had taken evidence and came to a finding that the defendant was a defaulter in the payment of rent for 10 (ten) days in the month of November, 1981, for December, 1981, for January, 1982 and for March, 1982 and directed the defendant to deposit the said amounts by 31st of March, 1987 which the defendant has done. As stated above both the contesting parties have come up against the said Order No. 110.

(3.) The controversy which has been raised by the contesting parties is as to whether the Learned Judge had jurisdiction to direct the defendant to make payment of the determined arrears by extending the time for such deposit and whether by such payment the defendant became entitled to the benefit under Section 17(4) of the West Bengal Premises Tenancy Act. On behalf of the landlord it has been strongly contended that the Learned Judge having once rejected the application under Section 17(2) of the West Bengal Premises Tenancy Act as not maintainable, he had no jurisdiction to determine the arrears as according to his findings, in Order No. 48, there was no dispute in existence and that there being no prayer under Section 17(2A) (a) the Court had no jurisdiction to extend the time for depositing the admitted amount of arrears. On behalf of the tenant the propriety of the Order dismissing the prayer under Section 17(2) of the Act was sought to be assailed. It was emphatically urged that the piecemeal disposal of a composite application by the Learned Judge should not be allowed to prejudicially affect the defendant's rights as the way the Court proceeded by taking evidence justified the defendant's waiting for determination of the amount to be deposited by him.