CHAMPALAL SETHIA Vs. RAMPROSAD KARNANI AND COMPANY

JUDGEMENT

(1.) This is an appeal at the instance of the Plaintiffs whose suit for ejectment of the Defendant -Respondent was dismissed by the learned Subordinate Judge, Cooch Behar and whose appeal against the decision was also dismissed by the learned District Judge, Cooch Behar. The Defendant admittedly was a tenant under the Plaintiffs in respect of the premises in suit. The Plaintiffs claimed to have determined the tenancy by service of a notice to quit and filed the suit inasmuch as the Defendant had not vacated the premises. The Plaintiffs alleged further that the Defendant was not entitled to the protection of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as 'the Act'), inasmuch as it had defaulted in the payment of rent for a period of more than four months and had also used a portion of the premises -in -suit for purposes other than that for which it was let out. Both these pleas were negatived by the learned Subordinate Judge and the learned appellate Court and hence this appeal.

(2.) With regard to the question of default, Mr. Sudhansu Kumar Sen, appearing on behalf of the Appellants, contends that the Courts below had erred in holding that the Defendant had not defaulted in the payment of rent for five months, that is, Migsar Sudi Ekam 2014 S.Y. to Baisakh Bodi 15, 2015 S.Y. It appears that the rents for this period were deposited by the tenants at -the rate of Rs. 41 -80 P. per mensem whereas the contractual rent was Rs. 333 -31 P. It appears, however, that on the tenants' application for fixation of rent, the rent was fixed at the rate of Rs. 41 -80 P. per mensem and that was the rent which was prevalent at the time when the game were deposited in the office of the Rent Controller.

(3.) Mr. Sen contends that the order of the Rent Controller fixing the rent at that rate was later on set aside and accordingly, the rents should have been deposited at the rate of Rs. 333 -31 P. and the Defendant had deposited the balance after December 9, 1959, that is to say, long after the order of the Rent Controller was set aside by the Subordinate Judge on April 1, 1958. He submits that the balance, should have been deposited within a reasonable time. The Act contains no provisions as to when the arrears are to be deposited in such circumstances. It would further appear from the evidence on record and as already found by the learned District Judge that the Defendant applied to the Rent Controller on June 12, 1958, that is to say, within two months from the time of the passing of the order by the learned Subordinate Judge praying for permission to deposit the rents, but the learned Rent Controller passed no order on it. The application dated July 19, 1958, was also not considered and the Rent Controller adjourned the matter sine the and on July 21, 1959, the Rent Controller passed all the challans without notice to the Defendant and as soon as the Defendant came to know of it, it had deposited the balance. In the circumstances, it cannot be stated that the Defendant was negligent in depositing the balance and as such, it cannot be held to be a defaulter within the meaning of the Act.