NARAYAN CHANDRA BHATTACHARJEE Vs. RADHA RANI DEBI

JUDGEMENT

(1.) THE instant Second Appeal is. directed against a judgment of affirmance. The tenant-defendant is the Appellant before this Court.

(2.) THE suit was on the ground of default on the part of the defendant for five months, namely, October 1974 to February, 1975. The monthly rental was Rs. 50/ -.

(3.) THE suit which was initiated in the year, 1975 has certain special features. In the suit the defendant made an application under Section 17 (2axb) of the West Bengal Premises Tenancy Act (hereinafter referred to as the Act) admitting that he was a defaulter for five months and praying for instalments of Rs. 20 per month; The said application stood dismissed for default. An application under Section 17 (3) of the Act by the landlord stood allowed ex parte. The defendant, thereafter made an application under Section 151 of the Code of Civil Procedure, inter alia, pleading, in substance, a gap of communication as ground of his absence on the aforesaid two dates of hearing of the two applications. The Court directed defendant to deposit the entire amount of arrears upto the date of making of the application as a precondition to the entertainment of such application for restoration and rehearing. The defendant deposited the entire arrears and on consideration of the same the Court allowed the application under Section 151 of the Code of Civil Procedure and thereafter allowed also the application under Section 17 (2axb) of the Act holding that in view of the deposit by the defendant the mischief arising out of the alleged default stood cured under Section 17 (4) of the Act and dismissed the suit (vide order no. 35 dated 5/6/1979 ). On appeal (Title Appeal No. 935 of 1979) by the plaintiff, the lower appellate court by its judgment dated 31/3/1980 set aside all the above orders passed by the trial court and remanded the suit for fresh hearing and fresh trial according to law after hearing out the application under Section 151 of the Code of Civil Procedure, giving opportunities to both the contesting parties, and disposing of the same with reasons. The trial court by its order no. 48 dated 5/8/1981 rejected the Section 151 application with costs on the reason that the procedure adopted by the petitioner amounted to abuse of the process of new. It is pertinent to note at this stage that in that order, none of the pleas taken by the petitioner for his absence on the dates the applications made by him and the plaintiff had been disposed of, was considered on merit. Since defendant failed to deposit the cost imposed by order no. 48 dated 5/8/1981 passed by the learned Massif, the defendant was debarred from appearing in the suit and on 2/9/1981 the suit was taken up for ex parte heating with an observation that 'the defendant takes no further steps' and decreed as above. On an appeal being taken the appeal stood dismissed as stated hereinabove. In the Second Appeal before this Court none appeared on behalf of the respondent.