MD. ISMAIL Vs. ANZAN AHMED & ORS.

JUDGEMENT

(1.) The present application under Sec. 115 Code of Civil Procedure is directed against orders No. 109 dated 12.2.90 and 114 dated 3.4.90 passed by the Ld. Judge, Sixth Bench, City Civil Court, Calcutta in Ejectment Suit No. 1122 of 1979.

(2.) The defendant in the suit filed an application under Sec. 17(2) (2A) and (2B) of the West Bengal Premises Tenancy Act raising a dispute as to the rate of rent as also the amount of rent payable by him and praying for instalments to pay the arrear rent to be determined by the Court. According to the plaintiff, the rate of rent was Rs. 36 per month while, according to the defendant, it was Rs. 31 per month. The defendant claimed to have paid the rent upto Sept., 1978 and deposited the rent from the month of Oct., 1978 onwards with the Rent Controller following the refusal by the plaintiff to accept the rent. According to the defendant, the rent due upto July, 1981 was deposited by him with the Rent Controller and thereafter, he had been paying the current rent with the Court from Aug., 1981 onwards. By order No. 109 dated 12.2.90, the Trial Court disposed of the defendant's application filed under Sec. 17(2) (2A) and (2B) of the West Bengal Premises Tenancy Act. The defendant produced rent receipts proving payment of rent upto June, 1978 at the rate of Rs. 31 per month. The defendant gave oral evidence to show that he also paid rent for the months of July, Aug. and Sept., 1978 at the said rate of Rs. 31 per month but no receipt was granted therefor by the plaintiff. The Trial Court, however, did not believe that evidence as there was nothing to corroborate that evidence. The trial court, on the other hand, accepted the rent counterfoil books that were exibited at the instance of the plaintiff and found them to be genuine. Relying on the oral evidence given by the plaintiff as also the evidence afforded by the rent counterfoil books, the trial court found that the defendant did pay the rent to the plaintiff upto Sept., 1978 at the rate of Rs. 36 per month and was a defaulter from Oct., 1978 onwards. Upto the date of passing of the order, as the rate of rent was determined at Rs. 36 per month, calculated at the said rate, the total amount on account of rent due for 136 months from Oct., 1978 to Jan., 1990 worked out to Rs. 4896. The Trial Court, however, took note of the fact that the defendant had already deposited certain amount of rent at the rate of Rs. 31 per month by means of challans but as those challans had not been filed and exibited at the instance of the defendant, the Trial Court found that there was no evidence on record to determine and deduct the same, The relevant observations of the trial co read as under: "As the defendant has already deposited certain amount of rent at the rate of Rs. 31 per month by means of challans which have not been filed and marked as exhibits and as such there is no evidence on record to determine and deduct the same." The Trial Court accordingly appears to have expressed its inclination to direct the defendant to deposit the entire amount of Rs. 4896 by reason of the fact that the relevant challans were not at all filed and exhibited by the defendant. The Trial Court also appears to have granted the permission to pay the amount in arrear together with interest by two instalments. Accordingly, by the impugned order dated 12.2.90, the trial court directed the defendant to pay the entire amount of Rs. 4896 being the rent for the period from Oct., 1978 to Jan., 1990 together with statutory interest thereon at the rate of 81/2% per annum, in two equal instalments, specifying the dates by which the said instalments would have to be paid. In giving such a direction, the trial court was pleased at the same time to allow deduction of the amount that was already deposited by the defendant in court and also before the Rent Controller by way of adjustment against the said amount of Rs. 4896, without, however, determining the exact amount for which such deduction was being allowed.

(3.) After the passing of the said order dated 12.2.90, the defendant filed certain challans on 20th Feb., 1990, the date on which the first instalment was required to be paid in terms of the earlier order dated 12.2.90 along with an application praying for time to make the deposit. On 16.3.90, following the date on which the second instalment was payable the defendant filed another application under Sec. 17 (2A) read with Sec. 151 praying for modification of the Court's order 12.2.90: It was alleged by the defendant that he had already deposited rent at the rate of Rs. 31 per month for 120 months out of 136 months from Oct., 1978 to Jan., 1990 totaling Rs. 3720 and since the Court by its order dated 12.2.90 allowed the deduction of rent already deposited by the defendant with the Rent Controller or the Court from the total sum of Rs. 4896 due towards the rent for the entire period from Oct., 1978 to Jan., 1990 the defendant was liable to pay only a sum of Rs. 1176 representing the difference between the sum of Rs. 4896 and the sum of Rs. 3720 towards the arrear rent and since the statutory interest should be made payable only on this balance amount of Rs. 1176 and not the entire amount of Rs. 4896 as has been suggested by the Court in its order dated 12.2.90, the defendant prayed for rectifications and/or modification of the said order dated 12.2.90 and also for permission to deposit the said amount of Rs. 1176 together with a sum of Rs. 270 being the interest due upon the said sum of Rs. 1176 calculated at the rate of 8⅓% per annum, by four instalments.