MRS. G.A. PETERS Vs. NAGENDRA NATH DATTA

JUDGEMENT

(1.) This Rule is directed against Order No. 15 dated May 15, 1979, passed by the learned 7th Judge, City Civil Court, Calcutta in Ejectment Suit No. 774 of 978. It appears that the plaintiff opposite party Nagendra Nath Dutta instituted a suit for ejectment against one Mrs. G.A. Peters and the said suit was numbered as Ejectment Suit No. 774 of 1978. Subsequently the present petitioner Mrs. G.A. Peters made an application before the Court, inter alia stating therein that Mrs. G.A. Peters was never a tenant but she, namely, Mrs. G.A. Peters was the tenant of the suit premises but she has not been impleaded in the said Ejectment Suit No. 774 of 1978 and as such the said Ejectment Suit was not maintainable. It appears that the plaintiff thereafter made an application for amendment of plaint under Order 6 Rule 17 of the Code of Civil Procedure and the said application for amendment was allowed and Mrs. G.A. Peters was impleaded as the defendant in the said suit instead of Mr. G.A. Peters. It appears that the said Mrs. G.A. Peters also filed a written statement in the said suit. By the impugned order, the learned Judge allowed an application made by the plaintiff landlord under Sec. 17(3) of the West Bengal Premises Tenancy Act, 1956. The learned Judge held that the defendant tenant Mrs. G.A. Peters not having filed any application under, Sec. 17(1) or Sec. 17(1) of the West Bengal Premises Tenancy Act, and no rent having been deposited by her in compliance with the provisions of S. (17) of the West Bengal Premises Tenancy Act, the said application under Sec. 17(3) should be allowed. It appears that in the petition of objection made by the defendant tenant Mrs. G.A. Peters to the said application under Sec. 17(3) of the plaintiff landlord, the defendant tenant contended that the plaintiff had collected rents from the defendant up to and including Aug., 1976 by granting rent receipts. But thereafter, the plaintiff stopped collecting rents and rents from Sept. to Dec., 1976 were sent by money order after refusal of personal tender, month by month in time, but the plaintiff landlord refused to accept the same. The plaintiff also did not allow or afford reasonable facilities to the defendant to pay her rents under the provisions of Sec. 67 of the Indian Contract Act. The defendant also contended in the said petition of objection that the plaintiff had wrongfully and illegally dispossessed the defendant from the beneficial use and occupation of her tenancy by not carrying out essential and necessary repairs despite repeated demands and requests for the same and the defendant fell seriously ill and had to take temporary shelter in St. Marry's Home at 23, Marquis Street, Calcutta-16. Accordingly, the defendant was entitled to suspend the payment of rents until and unless the room was made habitable. Some other objections were also made in the said petition of objections but it is not necessary to refer to all such objections for the purpose of disposal of this Rule.

(2.) Mr. Bhattacharjee, the learned Counsel appearing for the tenant petitioner, contended that the learned Judge misconceived the provisions of Sections 17(1), 17(2) and 17(3) of the West Bengal Premises Tenancy Act and proceeded erroneously on the footing that as no application was made under Sec. 17(1) or 17(2) of the West Bengal Premises Tenancy Act by the defendant tenant the petition of objection under Sec. 17(3) of the West Bengal Premises Tenancy Act was not to be considered on merit. Mr. Bhattacharjee contended that if an application under Sec. 17(3) is male by a landlord the Court in to decide as to whether the tenant had made a default in depositing the arrears of rent together with statutory interest and also the current rents as contained in the provisions of Sec. 17(1) and/or the tenant had failed to comply with the direction contained in the order made under Sec. 17(2) of the said Act. Mr. Bhattacharjee contended that if under the law, the tenant was under no obligation to pay or deposit the rent in respect of the disputed premises, there was no question of contravening the provision of Sec. 17(1) of the West Bengal Premises Tenancy Act and if the Court is satisfied on consideration of the petition of objection made by the tenant that he was justified in not making any deposit in accordance with the provisions of Sec. 17(1) of the West Bengal Premises Tenancy Act, the application of the landlord under Sec. 17(3) is liable to be rejected by the learned Judge. Mr. Bhattacharjee contended that consideration of the application under Sec. 17(3) of the Act on merit is not dependent upon tenant's making an application under Sec. 17(1) or 17(2) of the West Bengal Premises Tenancy Act. In this connection, Mr. Bhattacharjee referred to a Bench decision of this Court made in the case of Trithapati Sen Vs. Paresh Nath Sen reported in ILR 1967 (1) Calcutta at page 449. In the said case the tenant contended that there was no relationship of landlord and tenant between the parties and on that contention the tenant did not make any deposit of rent in accordance with the provisions of Sec. 17(1) of the West Bengal Premises Tenancy Act. The tenant also did not make any application under Sec. 17(2) of the Act by raising a dispute as to the rent payable by the said tenant. This Court held in the said decision that the question of relationship of landlord and tenant strikes at the root and in such circumstances even if no application under Sec. 17(2) is made by the tenant, the objection of the tenant to the application of the landlord under Sec. 17(3) of the Act has to be considered on merit. Relying on the said decision Mr. Bhattacharjee contended that it is thus apparent that a tenant is not precluded from raising objection against an application made under Sec. 17(3) of the Act simply because the tenant had not raised any dispute as to the quantum of rent payable to the landlord in an application under Sec. 17(2) of the said Act, in my view, the aforesaid contention of Mr. Bhattacharjee is quite justified. It cannot be contended that simply became the tenant did not make any application under Sec. 17(2) raising a dispute as to the quantum of rent payable to the landlord, the said tenant in precluded from raising objections as to the maintainability of an application under Sec. 17(3) by the landlord. In my view, the Court in under an obligation to dispose of the application under Sec. 17(3) on consideration of the objection, it any to such application and if the Court comes to a finding that the provision of Sec. 17(1) or an order passed under Sec. 17(2) of the West Bengal Premises Tenancy Act had not been complied with, then and then only the Court can pass an order striking out the defence against delivery of possession under Sec. 17(3) of the Act. In an appropriate case, even without making an application under Sec. 17(2) of the West Bengal Premises Tenancy Act, a tenant may satisfy the Court that there was no contravention of the provision of Sec. 17(3) of the Act and as such the application under Sec. 17(3) was liable to be dismissed. Mr. Bhattacharjee next contended that a tenant is entitled to suspension of rent under the provisions of Sec. 108 of the Transfer of Property Act. Mr. Bhattacharjee contended that in the instant case, classes (b) and (c) of Sec. 103 of the Transfer of Property Act were attracted and the tenant was entitled to suspension of rent and as such there was no question of depositing any arrear of rent together with statutory interest according to the provisions of Sec. 17(1) of the West Bengal Premises Tenancy Act and thereafter to go on depositing at the rate of rent last paid month by month. For this contention, Mr. Bhattacharjee referred to the decision of this Court made in the case of Nirmalendu Basu Vs. Smt. Nilima Chatterjee reported in AIR 1975 Calcutta at page 418. In the said decision R.N. Bhattacharya, J. on consideration of the facts of the said case held that there was justification for the tenant to suspend the payment of rent to the landlord. Accordingly, Mr. Bhattacharjee contended that the impugned order is liable to be set aside.

(3.) Mr. Dutt the learned Counsel appearing for the landlord opposite party, however, contended that mere failure on the part of the landlord to carry out essential repairs does not entitle the tenant to suspend rent and for this proposition Mr. Dutt referred to a Bench decision of this Court made in the case National Motor Industries Ltd. Vs. Birendra Nath Mitra reported in AIR 1957 Calcutta at page 232. K. C. Dasgupta, J. (as His Lordship then was) speaking for the Court held in the said decision that where the landlord fails to carry out the repairs coming under Sec. 38(3) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, the tenant is not entitled to suspension of rent. The general law does not give any such remedy. Mr. Dutt also referred to another decision of this Court made in the case of Jatindra Kumar Das Vs. Dhiraj Lal Vajlal Kanaki reported in AIR 1975 Calcutta at page 123 . D.K. Sen, J. held in the said case that under Sec. 108 of the Transfer of Property Act, a tenant in not entitled to suspend rent on the ground of not effecting repairs until and unless under the terms of contract between the parties the landlord is under an obligation to effect such repairs. Mr. Dutt also referred to another Bench Decision of this Court made in the case of Stewart and Co. Ltd. Vs. Mackertich reported in AIR 1963 Calcutta at page 138. It was held in the said decision that in absence of covenant, the lessor is not bound to effect repair of the premises and the leasee is not entitled to suspend the payment of rent for non-repairing the premises. It was also held that the onus of proving the existence of such covenant of repairing is on the tenant. Relying to the aforesaid decisions, Mr. Dutt contended that the plea of suspension of rent as made by the tenant in the instant case is wholly unacceptable and the tenant was under an obligation to deposit all arrears of rent together with statutory interest within in the specified time and thereafter to go on depositing at the rate of rent last paid within the specified time in accordance with the provisions of Sec. 17(1) of the West Bengal Premises Tenancy Act and admittedly, the tenant not having made such payments the impugned order allowing the application under Sec. 17(3) of the West Bengal Premises Tenancy Act is perfectly legal and there is no question of interference by this Court in revision.