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Vikam Chand Kothari Vs. Upendra Nath Sarkar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 1106 of 1979
Judge
Reported inAIR1982Cal205,86CWN595
ActsWest Bengal Premises Tenancy Act, 1956 - Section 17(1) and 17(2)
AppellantVikam Chand Kothari
RespondentUpendra Nath Sarkar
Appellant AdvocateNirmal Kumar Nandi, Adv.
Respondent AdvocateSadananda Ganguli, Adv.
Cases ReferredHindusthan Industrial Company v. Chandiprasad More
Excerpt:
- .....the learned munsif raised the question whether the rents deposited by the defendant with the rent controller were valid deposits but he did not come to any finding regarding the same. the impugned order is not sustainable in law and the same should be set aside and the learned munsif should be directed to dispose of the defendant's application in accordance with law, 4. the learned advocate for the plaintiff-opposite party has contended that according to the defendant there was no dispute regarding the rate of rent and there were no arrears. in the circumstances, the defendant could not file an application under section 17 (2) of the premises tenancy act. it has been argued that there must be a bona fide dispute and in the absence of any such dispute the defendant had no right to.....
Judgment:
ORDER

S.N. Sanyal, J.

1. This application is at the instance of the defendant Vikam Chand Kothari challenging the order dated Dec. 14, 1978 by which the learned Munsif, First Court, Krishnagar, rejected the defendant's application under Section 17 (2) of the West Bengal Premises Tenancy Act. The plaintiff-opposite party Upendra Nath Sarkar instituted Title Suit No. 363 of 1975 on Dec. 11, 1975 in the First Court of Munsif, Krishnagar against the petitioner for ejectment and arrears of rent. The plaintiff's case was that the defendant was a monthly tenant under the plaintiff on a monthly rental of Rs. 57/-according to Bengali calendar. The defendant did not pay rent from Baishakh 1380 B.S. and the rent from Baishakh 1380 B.S. to Jaishtha 1382 B.S. fell in arrears. The plaintiff also required the suit premises for his own occupation. The defendant appeared on Feb. 9, 1976 and filed two applications on that day, one under Section 17 (1) of the Premises Tenancy Act, praying for permission to deposit the rent of Poush 1382 B.S. with interest and the other under Section 17 (2) for determination of the defendant's arrears of rent.

2. The learned Munsif dismissed the application under Section 17 (2) holding that the application was a misconceived one and it was not maintainable.

3. The defendant has challenged the said decision of the learned Munsif in the present proceeding before this Court. The learned Advocate for the petitioner has argued that the learned Munsif has failed to exercise his jurisdiction as he did not state the ground on which he held the application to be a misconceived one. There was thus failure to exercise jurisdiction. The learned Munsif raised the question whether the rents deposited by the defendant with the Rent Controller were valid deposits but he did not come to any finding regarding the same. The impugned order is not sustainable in law and the same should be set aside and the learned Munsif should be directed to dispose of the defendant's application in accordance with law,

4. The learned Advocate for the plaintiff-opposite party has contended that according to the defendant there was no dispute regarding the rate of rent and there were no arrears. In the circumstances, the defendant could not file an application under Section 17 (2) of the Premises Tenancy Act. It has been argued that there must be a bona fide dispute and in the absence of any such dispute the defendant had no right to file an application under Section 17 (2) of the Premises Tenancy Act. The learned Advocate for the opposite party has contended that if the defendant has deposited the rent in time he will get the benefit and the same will be determined at the time of trial.

5. On Feb. 9, 1976 the defendant filed an application under Section 17 (1) of the Premises Tenancy Act for permission to deposit the rent for Poush 1382 B.S. with interest. On the same date, the defendant filed an application for determination of the defendants dues under Section 17 (2) and for deposit of rent under Section 17 (1) of the Premises Tenancy Act. In this application the defendant stated that he had deposited with the Rent Controller all rents up to Agrahayan 1382 B.S. and there was no arrear of rent outstanding except that of Poush 1382 B.S. for the deposit of which the defendant had applied. The defendant further stated that the Court might determine the defendant's arrears of rent after treating the deposits made with the Rent Controller as rent of the suit premises for the period from Baishakh 1380 B.S. to Agrahayan 1382 B.S. as rents already paid and permit the defendant to deposit Rs. 57/- towards rent of 1382 B.S. with interest. The learned Munsif has rejected the application under Section 17 (2) on the ground that it is a misconceived one and not maintainable.

6. The learned Advocate for the petitioner contends that there was a question whether the deposit of rent with the Rent Controller was valid or not and as such the learned Munsif should have determined what amount was payable by the defendant. The learned Advocate for the plaintiff contends that the application must be a bona fide one as laid down in the decision reported in (1958) 62 Cal WN 830. In the instant case, there is no dispute regarding the rate of rent. The defendant stated that he was not a defaulter and he had already deposited the rent with the Rent Controller up to the period of Agrahayan 1382 B.S. The only prayer of the defendant was to permit him to deposit the rent for Poush 1382 B.S. with statutory interest.

7. The question is whether the defendant raised any dispute as to the amount of rent payable by the application under Section 17 (2). In the case of Hindusthan Industrial Company v. Chandiprasad More, ((1975) 79 Cal WN 1017) it has been held that an application under Section 17 (2) of the West Bengal Premises Tenancy Act must have three elements : (a) There must be a dispute raised as to the amount of rent payable; (b) the tenant must make deposits of all admitted arrears of rent within the statutory period; (c) the said deposits, if any, must be made along with an application praying for determination of the amount of rent payable. The defendant, in the instant case, has invited the attention of the Court to treat the deposits made with the Rent Controller as rents of the suit premises from Baishakh 1380 B.S. to Agrahayan 1382 B.S. as rents already paid. The point thus arises whether this application of the defendant should be considered to be an application under Section 17 (2). Section 22 of the Premises Tenancy Act deals with the question under what conditions rents deposited under Section 21 should be considered to have been validly deposited under that Section for purposes of Clause (i) of Sub-section (1) of Section 13. Section 22 (3) lays down that if the rent is deposited within the time mentioned in Sub-section (1), and does not cease to be a valid deposit for the reason mentioned in Sub-section (2), the deposit shall constitute payment of rent to the landlord as if the amount deposited has been valid legal tender of rent if tendered to the landlord on the date fixed by the contract for payment of rent when there is such a contract, or, in the absence of any contract on the 15th day of the month next following that for which rent is payable. In the case of Hindusthan Industrial Co. (supra) it has been held that in order to get the protection under Section 17 in its main part it is necessary for a tenant to re-deposit the rent so invalidly deposited with the Rent Controller or at least raise a dispute and have an adjudication under Section 17 (2) thereof.

8. It thus appears that as the tenant invited the Court to treat the rent deposited with the Rent Controller as valid deposits, it was necessary for the Court to determine whether the said deposit of rent with the Rent Controller was valid. The determination of this question is connected with the determination of the rent payable by the tenant. According to Section 17 (3), if the tenant fails to deposit or pay any amount referred to in Sub-section(1) or Sub-section (2) or Sub-section (2A) within time, the tenant's defence against delivery of possession is liable to be struck out. So also, in order to get the benefit under Section 17 (4), the question of making deposit or payment as required by Sub-section (1), Sub-section (2) or Sub-section (2A) will arise. The defendant has deposited the admitted arrear and along with it he has filed an application under Section 17 (2). In dealing with this application it would be necessary to determine whether the deposits made with the Rent Controller are valid deposits or not.

9. In the result, the Rule succeeds and It is made absolute. The impugned order is set aside. The learned Munsif will dispose of the defendant's application under Section 17 (2) of the Premises Tenancy Act in accordance with law, There will be no order as to costs.


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