Renupada Mukherji, J.
1. This Rule is directed against an order passed by the Munsif, Second Additional Court, Alipore, in connection with an application filed under Section 17 of the West Bengal Premises Tenancy Act, 1956.
2. It appears from the facts of the case that the plaintiff petitioner instituted a suit fop ejectment of the defendant opposite party from a certain stall of a Refugee Market described in the schedule of the plaint. Summons of the suit was served on the defendant on 17-8-1956. 10th September 1956 was fixed for ascertaining contest. Thereafter on the defendant's prayer 5th November, 1956 was fixed for filing written statement. On an interim date, that is, on the 27th September, 1956, the plaintiff filed a petition drawing the attention of the Court that the defendant had not deposited his arrears within the period of one month from the date of service of the summons as prescribed in Section 17(1) of the West Bengal Premises Tenancy Act, 1956. So a prayer was made for striking out the defence against delivery of possession when such defence would be filed. The above petition was objected to by the defendant and the learned Munsif passed an order on 9-11-1956 holding that the amount of arrears should first be determined because there was a dispute about the rate of rent and thereafter the tenant would be directed to deposit the amount which would be found to be in arrear. This Rule is directed against this order passed by the learned Munsif
3. After hearing Mr. Ganguli on behalf of the plaintiff petitioner and Mr. Chakravartti on bchalf of the defendant opposite party, I am of opinion that the Rule should be made absolute, but on the finding that the so-called tenant cannot be directed to pay or deposit in Court arrears of rent in this suit. From some statements made in paragraph 2 of the plaint, it would appear that according to the case of the plaintiff, the defendant was to pay a consolidated sum of Rs. 126/- every month according to the Bengali calendar month for the disputed stall. This sum was to be paid not wholly by way of rent but a part of it was to be paid for rent and a part for services rendered in the disputed stall by the plaintiff to the defendant. It is not stated how much was to be paid on account of rent proper and how much on account of the services Which the plaintiff was to render. It was further alleged that in case the plaintiff was dismissed from service, the defendant must give up possession of the stall. This being the statement in paragraph 2 of the plaint, I am unable to hold, at least for the purpose of Section 17 of the West Bengal Premises Tenancy Act, 1956, that the defendant opposite party is such a tenant as may be called upon to pay up arrears of rent or current rent month by month as has been laid down in Section 17(1) of the Act in question.
4. That being the case, I make this Rule absolute and set aside the order passed by the learned Munsif for determination of arrears of rent. The Court below will not take any further action on the application which purports to have been filed by the plaintiff petitioner under Section 17 of the above Act.
5. There will be no order as to costs in this Rule.