CENTRAL COALFIELDS LTD Vs. RABINDRA NATH DUTTA

JUDGEMENT

(1.) This is a revisional application at the instance of the tenant-defendant arising out of a suit for eviction which has been heard on contest by the plaintiff landlord. The facts relevant for our present purposes are not in dispute. The defendant-petitioner is a tenant under the plaintiff in respect of suit premises on a monthly rent of Rs. 1150/- payable according to English Calendar month. The plaintiff instituted Title Suit No. 122 of 1977 in the second court of the learned Subordinate Judge at Alipore for eviction of the defendant on certain grounds including a ground that the tenant-defendants had forfeited their protection under Section 13 of the West Bengal Premises Tenancy Act (hereinafter referred to as the said Act) on the ground of default. In this suit the defendant filed two applications-- one under Section 17 (2) and the other under Section 17 (1) read with Section 17 (2A) of the said Act. The case made out in these applications was to the effect that when the defendant tendered twenty months' rent from April 1974 to November 1975 amounting to Rs. 23,000/- to the plaintiff by a cheque, the plaintiff refused to accent the same. The defendant further pleaded that the rent was being deposited month by month with the Rent Controller since May 1976. Admitting the arrears for the period from April 1974 to April 1976 in the application under Section 17 (1) read with Section 17 (2A) of the said Act the defendant prayed for an order allowing them "to deposit the arrears of rent legally payable with interest in monthly instalment equal to one month's rent beginning from November 1978." In their application under Section 17 (2) the defendant prayed for adjudication of a dispute as to whether the deposits made with the Bent Controller since May 1976 are valid or not and "further determine as to whether any portion of the rent in arrears has become barred by limitation and as such not legally payable." The learned Subordinate Judge by the order impugned dated July 16, 1979 has disposed of the application under Section 17 (1) read with Section 17 (2A) of the said Act which was strongly contested before him by the plaintiff. He found the defendant to be in arrears for the admitted period from April 1974 to April 1976 and assessed the rent in arrears for those months at Rs. 28,750/-. He further found that the defendant is liable to pay statutory interest on such arrears up to July 1979 at the rate of Rs. 8 1/3% and assessed the same at Rs. 10,789.22. He refused to grant any liberal instalment as prayed for by the defendant and directed the entire amount of Rs. 39,539.22 to be deposited by August 20, 1979. Feeling aggrieved by the order as aforesaid the defendant has preferred the present revisional application.

(2.) Mr. Mitra appearing in support of this revisional application has raised a solitary point. He has contended that when a part of the arrears was not legally recoverable on the date of the suit, that is on August 31, 1979, being time barred, the learned Subordinate Judge could not have directed deposit of the entire arrears under Section 17 (1) read with Section 17 (2A) of the said Act. Reliance is placed on a Bench decision of this Court in the case of Raghunath Singh v. Patel & Co. (1961) 65 Cal WN 1093 and a single Bench decision following the aforesaid Bench decision in the case of N. N. Ghosh Chowdhury v. Tripti Rani Chakraborty ILR (1976) 2 Cal 359. The point thus raised by Mr. Mitra has been contested by Mr. Das Gupta appearing on behalf of the plaintiff. According to Mr. Das Gupta, the decisions relied on by Mr. Mitra stand overruled by the decision of the Supreme Court in the case of Khadi Gram Udyog Trust v. Shri Ram Chandraji Virajman Mandir.

(3.) The Bench decision of this Court relied on by Mr. Mitra no doubt well supports the contention raised by him, Unfortunately for Mr. Mitra in that case he himself had failed to convince the learned Judges that in order to get relief under Section 17 (4) of the said Act, the tenant must deposit the entire arrears whether the whole or any part of it is time barred or not. To us it appears that It was rightly contended by him then that Section 17 (4) of the said Act incorporates in substance the same principle as underlies Section 114 of the Transfer of Property Act and when the liability for the time barred rent in arrears is not extinguished though its recovery is barred it was incumbent upon a tenant to discharge that liability in order to be entitled to relief under Section 17 (4), Necessarily Mr. Mitra then relied on the well-known decision in the case of Vasudev Udpa v. Krishna Udpa (1921) ILR 44 Mad 629 which has been approved by the Supreme Court. The learned Judges there, however, rejected such a contention raised by Mr. Mitra when they held that "the first part of Sub-section (1) of Section 17, on its true construction, imposes upon the tenant the duty to deposit or pay the amount to the plaintiff as landlord on account of arrears of rent which the tenant is otherwise under legal obligation to pay to him." Accordingly it was held that when the tenant had no legal obligation to pay the time barred arrears, he cannot be made to pay or deposit such part of the time barred arrears under Section 17 (1) nor can there be any order made under Section 17 (2) of the said Act directing any such payment or deposit. The learned Judges relied on an earlier decision of this Court in the case of Daya Debi v. Chapala Debi, (1959) 63 Cal WN 976 in holding as such and approved a single Bench decision in the case of Nashiban Bibi v. Parulbala Dutta (1958) 62 Cal WN 778. With great respect there are, however, good reasons to doubt the correctness of the view so expressed as pointed out by a learned single Judge of this Court in a later decision in the case of Sujit Kumar v. Kartick Chandra 1979 (2) Cal HN 280.