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M.L. Bajaj Vs. Mustt. Rashika Khatoon - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberC.R. No. 744 of 1979
Judge
Reported inAIR1983Cal33,87CWN163
ActsWest Bengal Premises Tenancy Act, 1956 - Section 17 and 17(1)
AppellantM.L. Bajaj
RespondentMustt. Rashika Khatoon
Appellant AdvocateS.C. Bose, ;R.N. Das and ;S. Mazumdar, Advs.
Respondent AdvocateSudhir Das Gupta and ;Subhendu Sekhar Roy, Advs.
DispositionRevision dismissed
Cases ReferredGouri Sankar v. Mrinalini
Excerpt:
- .....his contention. reliance is also placed by mr. bose on certain observations made by the different judges constituting the special bench in the case of siddhcswar v. prakash chandra, : air1964cal105 and the observations of the supreme court made in the case of kaluram v. baidyanath, : [1965]3scr34 . in support of this rule mr. bose incidentally raised another point which had not been raised in the court below. the point so raised is to effect that the tenant/defendant having raised a dispute as to the existence of relationship of landlord and tenant between the parties in his defence, the learned chief judge could not have allowed an application under section 17 (3) of the said act and struck out his defence against delivery of possession without first deciding the said dispute.4......
Judgment:

Anil K. Sen, J.

1. A short point involving interpretation of Sub-section (1) of Section 17 of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the said Act) raised in this Rule issued on a revisional application has been referred to the Division Bench by our learned brother P. K. Banerjee, J.

2. The Rule was obtained by the tenant/ defendant in a suit for eviction and is directed against an order dated Jan. 17, 1979.passed by the learned Chief Judge, City Civil Court. Calcutta, allowing an application under Section 17 (3) of the said Act, tiled by the plaintiff/opposite party thereby striking out the defendant's defence against delivery of possession. His defence against delivery of possession was so struck out because of his failure to deposit amounts equivalent to monthly rent for several months pending the suit but subsequent to its institution in accordance with the latter part of Sub-section (1) of Section 17 of the said Act. In striking out the defence against delivery of possession the learned Chief Judge overruled the contention raised on behalf of the defendant, to the effect that since the defendant was not in default in payment of rent prior to the suit he was under no obligation to deposit any arrears in terms of the first part of the said Sub-section and necessarily he had no obligation either to deposit any amount equivalent to monthly rent for the months subsequent to the suit which obligation could have arisen only in continuity of the obligation imposed by the first part. It was so overruled when the learned Chief Judge held that although the defendant was not in default in payment of rent at the time of institution of the suit, which had been instituted solely on the ground of reasonable requirement, his subsequent failure to deposit rent on 19 occasions pending the suit within time in terms of the latter part of Sub-section (1) of Section 17 would attract the provision of Section 17 (3) of the said Act.

3. Appearing ir, support of this Rule. Mr. Bose has raised the same contention which was unsuccessfully raised before the learned Chief Judge and which he claims was erroneously overruled by the said Judge. According to Mr. Bose the learned Chief Judge misread the provision of Section 17 (1) of the said Act, in not appreciating that the two parts of that Sub-section are not independent of each other and tenant's liability under the latter part thereof does not arise unless he is jo default in payment of rent prior to the suit and as such, has suffered ;i liability to deposit arrears in terms of the first part of that sub-section. Mr. Bose wants us to read Section 17 (1) of the said Act to mean and contemplate a process of deposit in an uninterrupted chain which originates only on the existence of pre-suit arrears; in his view only where a tenant/ defendant is in arrears prior to the suit. Section 17 (1) of the said Act has its application and requires him to pay or deposit the entire such arrears together with the arrearsthat may have accrued subsequent thereto up to the end of the month previous to that in which the deposit or the payment is being made and then continue to go on depositingan amount equivalent to monthly rent for current months subsequent thereto. Mr. Bose contends that the obligations imposed by the two parts of this Sub-section are sointerlinked that the latter has been made contingent upon the former, so that in a given case -- as is the case now before us --where the tenant/defendant had incurred no obligation to pay or deposit any amount contemplated by the first part, no question arises for him to continue to pay or deposit any amount whatsoever in terms of the latter part of that Sub-section. Reliance is placed by Mr. Bose on a Single Bench decision of this Court in the case of Harendra Nath Chatterjee v. Sailendra Krishna Sana, : AIR1967Cal185 , which well supports his contention. Reliance is also placed by Mr. Bose on certain observations made by the different Judges constituting the Special Bench in the case of Siddhcswar v. Prakash Chandra, : AIR1964Cal105 and the observations of the Supreme Court made in the case of Kaluram v. Baidyanath, : [1965]3SCR34 . In support of this Rule Mr. Bose incidentally raised another point which had not been raised in the Court below. The point so raised is to effect that the tenant/defendant having raised a dispute as to the existence of relationship of landlord and tenant between the parties in his defence, the learned Chief Judge could not have allowed an application under Section 17 (3) of the said Act and struck out his defence against delivery of possession without first deciding the said dispute.

4. Mr. Dasgupta appearing on behalf of the plaintiff-landlord has contested both the points thus raised by Mr. Bose. According to Mr. Dasgupta upon plain reading of Subsection (1) of Section 17 of the said Act, it would be evident that the obligation imposed by the latter part of it, is not contingent upon there being arrears prior to the suit which invokes the liability under the first part of that Sub-section; the two parts of that subsection are not inter-dependent in that wayso that even if there be no arrears prior to the suit, which is required to be paid or deposited in the manner prescribed by the first part of that Sub-section yet the statute contemplates that the tenant/defendant must go on paying and/or depositing the current rent in a manner prescribed, by the latter part of that Sub-section. According to Mr. Dasgupta the decision of the learned single,Judge in the case of Harendra Nath (sic) Sailendra (supra) stands overruled by a later Bench decision of this Court in the case of Gouri Shankar v. Mrinalini, : AIR1973Cal410 . In his turn Mr. Dasgupta has relied upon certain observations of the Special Bench as also of the Supreme Court in the cases relied on by Mr. Bose in contending that those decisions instead of supporting the contention of Mr. Bose go against him. So far as the second point raised by Mr. Bose is concerned. Mr. Dasgupta has contended that no such dispute as to relationship had really been raised and in any event such an objection not having been raised at the hearing of the application under Section 17 (3) of the said Act, Mr. Bose should not be permitted to raise such a point at this stage.

5. The first point raised by Mr Bose is of some importance and has been carefully considered by us. We are, however, unable to accept such a contention in view of the scheme of the Act and the clear terms of Sub-section (1) of Section 17 thereof. If we are to .tccept such a contention, then we have to hold further that Section 17 (1) would have no application unless one of the grounds in support of the claim for eviction is default contemplated by Section 13 (1) (i) of the said Act. That, however, would be apparently contrary to the clear terms of the Sub-section when it speaks of 'On a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 13'. The legislature, therefore, expressly provided that the obligation imposed by Section 17 (1) of the said Act has to be discharged by a tenant defendant in every suit or proceeding for eviction based on any of the grounds referred to in Section 13. The first part when it speaks of for the period for which the tenant may have made default' contemplates that the liability under that part may not arise in all cases: it would arise only when there exists default prior to the suit. But the obligation imposed by the latter part of that Sub-section is unconditional when it provides that in every such suit the tenant must 'continue to deposit or pay month by month by 15th of each succeeding month a sum equivalent to the rent at that rate'. Therefore, on the language of this Sub-section the latter part may have its application even when the first part is not attracted and as such one is not contingent upon the other. The words 'shall thereafter' merely connote the point of time when the payment or the deposit under the latter part is to be made not making it dependent on the obligation imposed by the first part. Hence it is difficult for us toaccept the contention of Mr. Bose that the obligation sought to be imposed by the latter part of that Sub-section is contingent upon there being arrears prior to the suit which would entail an obligation under the first part thereof. That apart, on the scheme of the statute it is quite evident that the legislature wanted the tenant to discharge his rent liability so long he enjoys the benefit of his statutory tenancy. So long as no suit or proceeding for his eviction is instituted he is to discharge that obligation either by paying the same to the landlord or deposit ing the same with the Rent Controller. Once, however, a suit or a proceeding for hie, eviction is instituted the statute prescribes the new mode contemplated by Section 17, But the object still remains the same, namely, in order to enjoy the benefit of the statutory protection the, tenant must discharge his, rent liability to the landlord. The contention put forward by Mr. Bose cannot be accepted consistently with this scheme because in that event in every case where a suit or proceeding for eviction against a tenant is instituted on any ground other than the ground of default or where the tenant/defendant had not been in arrears prior to the suit, he would cease to have any obligation whatsoever to pay rent to his landlord so long such a suit or proceeding continues to be pending. That certainly in our view is not contemplated by the legislature in enacting the material provision.

6. We would now proceed to consider the different decisions cited before us. We have already indicated that the decision of a learned single Judge of this Court in the case of Harendra Nath v. Sailendra : AIR1967Cal185 (supra) well supports the contention of Mr. Bose. In that case, the learned Judge was relying upon the observations of Banerjee. J., in the case of R. Jaiswal v. R S. Shaw, (1960) 64 Cal WN 880. Interpreting the first part of Sub-section (1) of Section 17. Banerjee. J., observed: 'The tenant is not certainly called upon to make any deposit under the first part of Section 17 (1) unless he is in default in payment of rent far any month or months. The words 'including a period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made', in my opinion, do not introduce any liability for payment in cases where there was no default. The words 'including' and 'thereto' linked up such payment with payment of rent in default', In Harendra's case the learned Judge not only relied on upon the aforesaid observation but proceeded to extend the same bylinking up the second part of that sub-section with the first part when he observed : 'Now, there being no default, there cannot be a period subsequent thereto, just as noticed in paras 8 and 9 ante. By parity of reasoning, therefore there being no default there can be no period thereafter too. 'In other words, as contended by Mr. Bose, the learned Judge was interpreting the words 'and shall thereafter continue to deposit' to mean that those words inextricably link up the second part with the first part so much so that if the first part is no; applicable the second part would not arise at all. We have given our reasons hereinbefore why the two parts of Sub-section (1) of Section 17 cannot be read in such a way The observations at Banerjee, J., relied on by the learned Judge were the observations made in interpreting the first part of that Sub-section which requires the tenani to deposit alt arrears fur the period he may have made default including therein the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made. According to Banerjee. J., that contemplates a composite deposit which would include the extended period and necessarily if there be no period of initial default there can be no question of adding the extended period thereto. With respect to the learned Judge deciding Harendra's case, we are unable to agree with him that the said reason assigned by Banerjee, J., can be the reason for interlinking the two parts of Sub-section (1) in the manner suggested by him and make the latter part contingent upon ihe first. A fair reading of the Sub-section as enacted on its terms, does not support such a view. Though on the language used, the second limb of the first part of the Sub-section had been made an integrated part of the first limb thereof as indicated by Banerjee, J. that is not the position with the second part. In enacting this Sub-section the legislature intended the second part to be applicable even where the first part has no application Even Banerjee. J., himself did not mean that When in concluding he held that the tenant in that case had been 'depositing rent since the month of June. 1958. in Court under the provision of the second part of Section 17 (1) and he has not made himself liable to the penalty under Section 17 (3) of the Act. for non-observance of the second part of Section 17 (1) of the Act' If reasons given by Banerjee. J., would link up the two parts of Sub-section (1) in the manner contemplated by the learned Judge deciding Harendra's case it would not have been necessary for Banerjee, J., to record due compliance by the tenant in that case of the second part of Section 17 (1) in setting aside the order striking out the defence.

7. Coming next to consider the Special Bench decision in the case of Siddheswar Pal, it should be pointed out at the very outset that the Special Bench was not called upon to consider or decide a point in the form now raised before us. In that case the suit was based on the ground contemplated by Section 13 (1) (k) of the Act. The only question which was considered by the Special Bench was as to whether deposit of rent for current months pending the suit with the Rent Controller would constitute payment to the landlord within the meaning of Section 17 (1) prior to its 1965 amendment. Though two of the learned Judges held it to be so, the majority held it otherwise. When we read the judgments delivered by the Judges consisting the Special Bench closely, we find that they are unanimous on the point that a tenant-defendant has a liability under Section 17 (1) to go on depositing month by month an amount equivalent to monthly rent pending the suit irrespective of whether he is in arrears prior to suit. Bose, C. J. observed: 'If there be no arrears at the time of the service of the writ of summons or no arrear accrues within one month of the service of the writ of summons, the tenant has to go on depositing in Court or paying to the landlord the monthly rent as it accrues due after the expiry of one month from the service of the writ within the 16th of the next month'. That apart it has been rightly pointed out by Mr. Dasgupta that if Section 17 (1) of the said Act is to be interpreted in the manner suggested by Mr. Bose then the Special Bench could not have upheld the order striking out the defence of the tenant/defendant in that case for non-compliance with the second part of that subsection, when there being no default prior to the suit the first part was not attracted. This decision, therefore, instead of supporting the contention of Mr. Bose or the view taken by the learned Judge in the case of Harendra v. Sailendra (supra) goes against the same by necessary implication and it was rightly pointed out as such by P. N, Mukherjee, J., in the Bench decision in the case of Gouri Sankar v. Mrinalini, : AIR1973Cal410 .

8. In our view, the Supreme Court in Kaluram's case : [1965]3SCR34 has clarified the entire position when it was ob-served (para 15):

'Section 17 deals with suits or proceedings in which the landlord claims eviction on any of the grounds referred to in Section 13; and as we have already noticed, Section 13 affords protection to the tenants against eviction, permits the landlord to claim eviction only if he can place his claim on one or the other of the Clauses (a) to (k); that is to say, it is only jf one or the other of the conditions prescribed by the said clauses is proved that the landlord can claim to evict his tenant. Default in the payment of rent is one of these clauses, but there are several other clauses referring to different causes of action on which eviction can be claimed by the landlord and it is to all these cases that Section 17 (1) applies. It is thus clear that normally when a suit is brought for eviction the tenant would have to comply with the requirement of Section 17 (1).'

9. Though both these decisions were cited before the learned Judge in Harendra's case, he failed to appreciate the true principles underlying them. Our learned brother P. K. Banerjee, J., in referring the present case to us has, therefore, rightly doubted the correctness of the decision in Harendra's case. In this view, we must hold that in Harendra's case the learned Judge was not correct in his interpretation of the second part of Section 17 (1) of the Act and the contention of Mr. Bose based primarily on the said decision cannot be accepted. We must hold that the learned Chief Judge was, therefore, right in overruling the objection raised on behalf of the tenant/defendant that there being no default prior to the suit his subsequent failure to deposit rent in accordance with the second part of Section 17 (1) of the Act would not attract the provisions of Section 17 (3) of the Act.

10. So far as the second point raised by Mr. Bose is concerned, it appears to us that the tenant/defendant at no stage did raise any specific dispute as to relationship. Admittedly no such dispute was raised by filing any application under Sub-section (2) of Section 17 of the said Act. Though strong reliance is placed by Mr. Bose on para 4 of the written statement the averments made in the said paragraph do not specifically raise any such dispute as to relationship. Though we may agree with Mr, Bose that in a case where a dispute as to such relationship between the parties is raised it is necessary for the Court to decide the dispute before the tenant/defendant's defence against delivery of possession could be struck out, that question does not really arise in the present case for the simple reason that nosuch dispute was raised either in the written statement or by filing an application under Sub-section (2) of Section 17; moreover no such issue was raised in the objection to the plaintiff's application under Section 17 (3) of the Act.

11. For reasons given, both the points raised by Mr. Bose in support of this revi-sional application fail and the application, therefore, fails. The Rule is discharged. There will be no order for costs.

S.N. Sanyal, J.

12. I agree.


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