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Mahesh Kumar Agarwalla Vs. Smt. Saraswati Dey - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberC.R. No. 2891 of 1978
Judge
Reported inAIR1979Cal322
ActsWest Bengal Premises Tenancy Act, 1956 - Section 17(2)
AppellantMahesh Kumar Agarwalla
RespondentSmt. Saraswati Dey
Appellant AdvocateBhaskar Bhattacharjee, Adv.
Respondent AdvocateBidyut Kumar Banerjee, Adv.
Cases ReferredGunwantrai T. Kamdar v. Satyanarayan Jhunjhunwalla (supra
Excerpt:
- .....mr. banerjee contended that in the instant case, the learned munsif has come to a finding that the tenant admitted that he was in arrears in the matter of payment of rent relating to the disputed premises and, accordingly, under the provisions of section 17 (2), the tenant was bound to deposit such admitted arrears of rent in spite of the fact that the relationship of landlord and tenant between the parties was disputed by the tenant in an applicationunder section 17 (2). in such circumstances, mr. banerjee contended, one of the essential conditions for making a valid application under section 17 (2) was not fulfilled and the learned munsif was quite justified in rejecting the said application as being not maintainable in law.4. i am unable to accept this contention of mr. banerjee. it.....
Judgment:
ORDER

G.N. Ray, J.

1. This Rule is directed against order No. 5 dated March 1, 1978, passed by the learned Munsif, 1st Court at Sealdah in Title Suit No. 128 of 1978. By the impugned order, the learned Munsif rejected the application made under Section 17 (2) of the West Bengal Premises Tenancy Act by the defendant petitioner on the groundthat the said application was not maintainable as the admitted arrears of rent for April, 1977, July, August and September, 1977 at the rate of Rs. 50/-per month had not been deposited along with the said application made under Section 17 (2) of the Act. It appears that the said Title Suit way instituted by the plaintiff opposite party Smt. Saraswati Dey against the tenant petitioner for eviction of the tenant petitioner from the suit premises on the ground of default of payment of rent by the said tenant. It appears that within the prescribed period of limitation, an application under Section 17 (2) of the West Bengal Premises Tenancy Act was made by the tenant, inter alia, contending that the rate of rent of suit premises was not Rs. 130/- per month but it should be Rs. 50/- per month and that there was no relationship of landlord and tenant between the plaintiff and the defendant. It appears that by the impugned order, the learned Munsif has not decided the dispute raised by the defendant about the existence of relationship of landlord and tenant between the parties but the learned Munsif rejected the said application under Section 17 (2) of the Act in view of the fact that the defendant tenant had not deposited the arrears of rent for the months of April to September, 1977 for the suit premises at the admitted rate of rent, namely, at Rs. 50/- per month.

2. Mr. Bhattacharjee, the learned counsel appearing for the petitioner submitted that when a dispute was raised under Section 17 (2) of the Act as to the existence of relationship of landlord and tenant between the plaintiff and the defendant, the Court was under an obligation to decide as to whether such relationship existed or not and in such a case, there was no occasion for the defendant to deposit any amount by way of rent because the question of payment of any arrear of rent to the plaintiff cannot arise so long the dispute as to the existence of relationship of landlord and tenant between the parties is not adjudicated. Mr. Bhattacharjee contended that when the defendant does not admit the plaintiff to be his landlord, there cannot be any occasion to admit that any amount is payable to the alleged landlord. Mr.Bhattacharjee contended that there may be a case where a dispute as to the existence of relationship of landlord andtenant, may not be a bona fide dispute and merely for raising a dispute without any basis therefor, such a dispute is made. It is for the Court to decide whether in the instant case, such dispute has been bona fide raised or not by the defendant and in the absence of any adjudication as to bona fide of the dispute raised by the defendant, the learned Munsif acted illegally and with material irregularity in the exercise of his jurisdiction in dismissing the application under Section 17 (2) as being not maintainable simply because the defendant had not deposited at the rate of Rs. 50/- per month for the months in question.

3. Mr. Banerjee, the learned counsel appearing for the plaintiff opposite party submitted that in the instant case it is quite apparent and evident that the defendant had been paying rent, to the plaintiff admitting her to be the landlady for a considerable period and the dispute as to the relationship of landlord and tenant was not at all a bona fide dispute. Mr. Banerjee in his fairness however submitted that unfortunately the learned Court has not held that the dispute as to the existence of relationship of landlord and tenant between the parties had not been bona fide raised by the defendant. Mr. Banerjee submitted that to make a valid application under Section 17 (2) of the Act, a tenant is not only to raise a dispute as to the amount of rent payable by the tenant within the meaning of Section 17 (21 of the Act but the tenant is also to deposit in Court the amount admitted by him to be due from him together with the application for determination of such dispute. Mr. Banerjee contended that within the meaning of dispute as to the amount of rent payable by the tenant under Section 17 (2) of the Act, a dispute as to the existence of relationship of landlord and tenant is also contemplated. Mr. Banerjee for this contention referred to the decision of this Court made in the case of Gunwantrai T. Kamdar v. Satyanarayan Jhunjhunwalla, reported in (1971) 75 Cal WN 372. P. N. Mukherjee, J. speaking for the Court held that to raise a valid dispute underSection 17 (2) of the Act three requirements must be fulfilled, namely (a) a dispute must be raised either about the quantum of rent payable by the tenant or about the existence of relationship of landlord and tenant between the parties; (b) the application to be made by the tenant within the prescribed period for adjudication of such dispute and (c) along with such dispute, admitted arrears of rent to be deposited by the tenant. Mr. Banerjee also referred to another Bench decision of this Court made in the case of Hindusthan Industrial Co. v. Chandi Prasad More reported in (1975) 79 Cal WN 1017. A. K. Sen, J. speaking for the Court also referred to the said decision made in the case of Gunwantrai T. Kamdar v. Satyanarayan Jhunjhunwalla. Mr. Banerjee also referred to another Bench decision of this Court made in the case of Saroj Kumar Kundu v. Lina Saha reported in ILR (1972) 2 Cal 118. Arun K. Mukherjea, J. speaking for the Court held that to satisfy the requirements of Section 17 (2) (i) there must be a dispute raised as to the amount of rent payable, (ii) the tenant must deposit all the admitted arrears of rent within the statutory period, and (iii) the said deposit must be made along with the application praying for determination of the amount of rent payable. The decision made in the case of Gunwantrai T. Kamdar v. Satyanarayan Jhunjhunwalla (supra) was also relied on by A. K. Mukherjea J. Relying on the aforesaid decisions, Mr. Banerjee contended that to make an effective application under Section 17 (2), the tenant is bound to deposit the admitted arrears of rent even if he raises a dispute as to the existence of relationship of landlord and tenant because such dispute is also a dispute within the meaning of Section 17 (2) of the Act. Mr. Banerjee contended that in the instant case, the learned Munsif has come to a finding that the tenant admitted that he was in arrears in the matter of payment of rent relating to the disputed premises and, accordingly, under the provisions of Section 17 (2), the tenant was bound to deposit such admitted arrears of rent in spite of the fact that the relationship of landlord and tenant between the parties was disputed by the tenant in an applicationunder Section 17 (2). In such circumstances, Mr. Banerjee contended, one of the essential conditions for making a valid application under Section 17 (2) was not fulfilled and the learned Munsif was quite justified in rejecting the said application as being not maintainable in law.

4. I am unable to accept this contention of Mr. Banerjee. It is true that for making a valid application underSection 17 (2), a tenant is required to deposit the admitted arrears of rent payable to the landlord but when the very relationship of landlord and tenant between the parties is disputed there cannot be any question of admitting any amount of rent payable to the alleged landlord. In my view, Section 17 (2) does not envisage a deposit of admitted arrears of rent in respect of the suit premises even when the defendant disputes the right of the plaintiff to realise the rent from him in respect of the suit premises as a landlord. By raising a dispute as to the existence of relationship of landlord and tenant between the parties, the defendant by necessary implication asserts that he is not tenant under the plaintiff and as such no amount is payable to the alleged landlord. In such circumstances, there cannot be any occasion for the defendants admitting to be a tenant under the plaintiff and thereby facing an obligation to deposit admitted amount of rent payable to the plaintiff landlord at the time of making application under Section 17 (2). It is to be noted that under Section 17 (2), a tenant is under an obligation to deposit the arrears of rent and a defendant, disputing to be a 'tenant' under the plaintiff and not adjudged to be a 'tenant' under the plaintiff by the court, has no obligation to deposit arrears of rent relating to the disputed premises. In my view the question of payment of admitted arrears of rent will arise only when there is no dispute as to the relationship of landlord and tenant between the parties but there is only a dispute as to the quantum of rent payable to the plaintiff, an admitted landlord by the defendant, an admitted tenant because dispute only as to the quantum of rent is also a dispute within the meaning of Section 17 (2) of the Act. As the learned Munsif has not yetdecided about the bona fide of the dispute raised by the defendant as to the existence of relationship of landlord and tenant between the parties, but has rejected the said application under Section 17 (2) simply on the ground that admitted arrears of rent in respect of the suit premises have not been deposited by the tenant, the impugned order should be set aside. The Rule is, therefore, made absolute but there will be no order as to costs. The learned Munsif is directed to consider the application under Section 17 (2) on merits and to dispose of the same as expeditiously as practicable. Let the record be sent down to the court below immediately.


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