IN RE: NATIONAL INSTRUMENTS LTD. Vs. STATE

JUDGEMENT

(1.) The petitioner company is a tenant under the opposite party in respect of a fiat on the first floor of the premises No. 40B, Gariahat Road, Police Station - Jadavpur, Calcutta - 700031 at a rental of Rs. 515/ - per month payable according to the English Calendar. The petitioner's case is that it was inducted as a tenant in respect of the said flat in the year 1975 as per the tenancy agreement, which is Annexure 'A' to the revisional application. In the said tenancy agreement, it is provided inter alia, that the tenancy would be in respect of the entire first floor (east) of the premises No. 40/B, Gariahat Road (South), Calcutta - 700031 including garage space of the said premises No. 40/B, Gariahat Road (South) Calcutta - 700031. The petitioner has provided its officers in the said flat as the said tenancy was taken by the petitioner for accommodating its officers therein. The further case of the petitioner is, that it was in the year 1984, after the retirement of the officer of the petitioner company, who was provided with the said flat as his accommodation during his tenure of service, the new allottee was not allowed to enter into the said flat by the opposite party. A complaint was lodged before the police and ultimately the said new allottee was allowed to take possession of the said flat but the said garage space was denied to the petitioner company and also to the new allottee. Subsequently, in the year 1986, the landlord opposite party filed Title Suit No. 152 of 1986 in the Second Additional Court of the learned Munsif at Alipore for eviction of the petitioner company from the disputed flat on the ground of reasonable requirement but not on the ground of default. The petitioner duly entered appearance in the suit and started depositing rent and it is the case of the petitioner that uptil now the petitioner is not a defaulter in payment of rent. The petitioner also filed an application under Sec. 17(2) of the West Bengal Premises Tenancy Act in the said suit claiming abatement of rent and praying for determination of proportionate rent on the ground that the garage space was denied to the petitioner since 1984 and/or the petitioner, due to the act of the opposite party, was not in occupation in respect of the entire extent of its tenancy in the disputed premise since that date. The said application was opposed by the opposite party by filing written objection denying and disputing the allegations made by the petitioner in the said application. The learned Munsif, ultimately, by the impugned order dated August 8, 1988 disposed of the said application under Sec. 17(2) of the West Bengal Premises Tenancy Act inter alia upon a finding that the scope of the provisions of Sec. 17(2) of the West Bengal Premises Tenancy Act was very' limited and by the said provisions, the Court is only called upon to decide the rate of rent or the amount payable against default, if any, or whether there is relationship of landlord and tenant between the parties and since the petitioner did not raise any dispute regarding the rate of rent as it was not a defaulter in payment of rent, the dispute as raised by the petitioner regarding the question whether the garage space was included in its tenancy and whether it had been denied of such space, was not within the scope of Sec. 17(2) of the West Bengal Premises Tenancy Act. It was a matter to be gone into during trial and that the petitioner virtually had asked for re -fixation of rent in the guise of abatement of rent, which does not fall within the purview of Sec. 17(2) of the West Bengal Premises Tenancy Act. Against the said order, the petitioner has filed the present revisional application. Mr. Chatterjee, learned Advocate for the petitioner, submits that the question of abatement of rent is a dispute which falls within the purview of Sec. 17(2) of the West Bengal Premises Tenancy Act, and when such a dispute has been raised, the court below is to resolve such dispute while disposing of the application under Sec. 17(2) of the West Bengal Premises Tenancy Act and, in the present case, since the court below did not resolve that dispute and merely shifted such disposal at the time of trial he ought to have shifted the hearing of the application under Sec. 17(2) of the West Bengal Premises Tenancy Act at the time of trial also and the finding of the court below that the question of abatement of rent is not within the scope of Sec. 17(2) of the West Bengal Premises Tenancy Act is therefore wholly erroneous and the court below thus refused to exercise jurisdiction in the matter.

(2.) Mr. Ghosh, learned Advocate for the caveator -opposite party, however, submits that although it was alleged by the petitioner that since 1984 the petitioner company was denied of the garage space, no objection was ever raised by the petitioner company against such denial nor did the petitioner company take any steps under the law for getting back possession of such alleged steps; on the contrary, the petitioner company all along paid rent, as agreed by and between the parties and is still depositing rent at the agreed rate in Court and, as such, the plea of abatement, as taken by the petitioner on the application under Sec. 17(2) of the West Bengal Premises Tenancy Act was nothing but a sham dispute raised only to forestall the early disposal of the suit.

(3.) Having heard the learned Advocates for the parties and going through the impugned order and the Annexures to the revisional application, I, however, hold that the learned Munsif was wrong in holding that the question of abatement of rent cannot be gone into under Sec. 17(2) of the West Bengal Premises Tenancy Act. Such question if bona fide raised, certainly has to be gone into by the Court while disposing of an application under Sec. 17(2) of the West Bengal Premises Tenancy Act. However, in the facts and circumstances of the present case, it is quite clear, that although the petitioner alleged in its application under Sec. 17(2) that the garage space was denied to the petitioner since 1984, no action was ever taken by the petitioner against such denial nor any objection was ever raised before any court of law previously and that the petitioner in spite of such alleged denial of the garage space by the opposite party, went on paying and is still paying rent at the agreed rate. In such view of the matter, the dispute of abatement of rent, as raised by the petitioner in its application under Sec. 17(2) does not appear to me to be a bona tide dispute, more so, when no challenge has been thrown by the petitioner regarding the rate of rent or the amount of rent payable. No doubt, an issue has been framed regarding the relationship of landlord and tenant between the parties in respect of the disputed tenancy, which according to Mr. Chatterjee should have also been disposed of by the court below while disposing of the application under Sec. 17(2) and Mr. Chatterjee stretches his argument to the effect that such an issue also covers the question of abatement of rent in a roundabout way inasmuch as the question of relationship of landlord and tenant between the parties covers the extent of the tenancy also.