Skip to content


S.K. Mukherjee Vs. Smt. Saila Bala SeIn and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 2145 of 1972
Judge
Reported inAIR1973Cal430,77CWN492
ActsWest Bengal Premises Tenancy Act, 1956 - Section 17(1), 17(2) and 17(2A)
AppellantS.K. Mukherjee
RespondentSmt. Saila Bala SeIn and ors.
Appellant AdvocateGopal Chandra Mukherjee, Adv.
Respondent AdvocateHemendra Chandra Sen and ;Santoshnath Sen, Advs.
Cases ReferredSri Sarada Sangha v. Asoke Sengupta
Excerpt:
- .....submitted that although the petitioner has not specifically made any prayer for extension of time to deposit the admitted amount in his application under section 17 (2), there is an omnibus prayer in that application to the effect that the court may pass such other order or orders as the court deems fit and proper. mr. hemendra chandra sen, learned advocate for the plaintiffs opposite parties, on the other hand, contends before me that the point raised by mr. mukherjee on behalf of the petitioner has been concluded by my decision in the case of sri sarada sangha v. asoke sengupta, reported in (1972) 76 cal wn 862. in that case i took the view that an application under sub-section (2) of section 17 of the west bengal premises tenancy act 1956, for determination of the rent payable.....
Judgment:
ORDER

Amiya Prosad Das, J.

1. This Rule was obtained by the tenant defendant in a suit for ejectment and is directed against an order of the learned Munsiff of the Third Court, Howrah, rejecting his application under Section 17 (2) of the West Bengal Premises Tenancy Act 1956. The plaintiffs, who are the opposite parties Nos. 1-5 in this Rule, brought the suit for ejectment on the grounds of default, subletting and reasonable requirement. According to the plaintiffs' case, the tenant defendant No. 1 is a defaulter in payment of rent since November 1968. Admittedly, the defendant No. 1, who is the petitioner in the present Rule, was a tenant in respect of the suit premises under opposite parties Nos. 1-5 at a monthly rent of Rs. 60/- payable according to English calendar month. The petitioner also admits that rent was not being paid since November 1968, the reason given by him being that he claimed adjustment for Rs. 364/- which he paid as Municipal taxes on behalf of the plaintiffs and also for a sum of Rs. 492/- which he incurred on account of essential repairs to the suit premises, against the rent payable by him but the landlords refused to adjust those amounts against rent. On the 17th September, 1971, when the application under Section 17 (2) was filed rent for the premiseswas admittedly in arrears from November 1968, to August 1971, that is, for 34 months. So, the total amount of arrears of rent till the date of the application under Section 17 (2) was Rs. 2,040/-. If from this amount the Municipal taxes of Rs. 364/- and the cost of repairs amounting to Rs. 492/- are deducted, the balance would come to Rupees 1,184/-. Thus this sum of Rs. 1,184/- was admitted by the petitioner to be due from him at the time when he filed his application under Section 17 (2). The learned Munsiff rejected the application under Section 17 (2) on the ground that the defendant No. 1 did not deposit this admitted amount of Rs. 1,184/- along with his application as required by Section 17 (2).

2. Mr. Gopal Chandra Mukherjee, learned Advocate appearing for the petitioner, has submitted before me that even though the petitioner did not deposit in Court the admitted amount of Rs. 1,184/-along with his application under Section 17 (2) within the time specified in Sub-section (1) of Section 17, the court has power to extend the time for depositing the admitted amount as provided for in Sub-section (2-A) of Section 17. He has further submitted that although the petitioner has not specifically made any prayer for extension of time to deposit the admitted amount in his application under Section 17 (2), there is an omnibus prayer in that application to the effect that the court may pass such other order or orders as the court deems fit and proper. Mr. Hemendra Chandra Sen, learned Advocate for the plaintiffs opposite parties, on the other hand, contends before me that the point raised by Mr. Mukherjee on behalf of the petitioner has been concluded by my decision in the case of Sri Sarada Sangha v. Asoke Sengupta, reported in (1972) 76 Cal WN 862. In that case I took the view that an application under Sub-section (2) of Section 17 of the West Bengal Premises Tenancy Act 1956, for determination of the rent payable by the tenant should be accompanied by deposit of the amount admitted by him to be due from him, within the time specified in Sub-section (1) of Section 17 and if no such deposit of the admitted amount is made within the time specified in Sub-section (1) the application for determination of the rent would not be maintainable. Mr. Mukherjee does not dispute the correctness of this view. But his contention is that under Sub-section (2-A) of Section 17 the court has power to extend the time for depositing the admitted amount of rent which is required to be deposited under Sub-section (2). This question, however, was not raised nor decided in (1972) 76 Cal WN 862.

3. Thus the sole point for my consideration in this Rule is whether the court can extend the time under Section 17 (2-A) for depositing in court the amount admittedby the tenant to be due from him which he is required to deposit under Sub-section (2) along with his application for determination of the rent. This point is not covered by any authority. The decision on this point depends on the construction to be put on Clause (a) of Sub-section (2-A) which is reproduced below:--

'(2-A) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) on the application of the tenant, the court may by order:--

(a) extend the time specified in Sub-section (1) or Sub-section (2) for the deposit or payment of any amount referred to therein: (b) * * * *'

4. Under Sub-section (2-A) the court has power to 'extend the time specified in Sub-section (1) or Sub-section (2) for the deposit or payment of any amount referred to therein'. This means that the Court can extend the time specified in Sub-section (1) for the deposit or payment of any amount referred to in that Sub-section (I) and similarly, the court can extend the time specified in Sub-section (2) for the deposit or payment of any amount referred to in that sub-sec-lion (2). In other words, the court can extend the time specified in Sub-section (1) for the deposit or payment of 'an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment is made for this is the amount referred to in Sub-section (1).' This amount is not the same thing as the amount admitted by the tenant to be due from him which he is required to deposit in court along with his application under Sub-section (2) for determination of the rent payable by him. As regards time for deposit of the admitted amount it would appear that the time within which the admitted amount is to be deposited under Sub-section (2) has not been specified in Sub-section (2), but that time has been specified in Sub-section (1). The time which has been specified in Sub-section (2), is the time of one month from the date of the preliminary order within which the amount determined by the court under the preliminary order under Clause (a) of Sub-section (2) is to be deposited in court or paid to the landlord. Then again, the time specified in Sub-section (2) also refers to be time fixed by the court under Clause (b) of Sub-section (2) within which the amount finally determined by the court is to be deposited or paid. Mr. Mukherjee lays stress on the words 'any amount' in Clause (a) of Sub-section (2-A) and contends that the words 'any amount' are wide enough to include also the admitted amount referred to in Sub-section (2). But when construed with reference to the time that can be extended under Sub-section (2-A), these words cannotrefer to the admitted amount required to be deposited under Sub-section (2). These words with reference to Sub-section (2) can only mean any amount that may be determined by the Court either under Clause (a) or Clause (b) of Sub-section (2). The use of the disjunctive 'or' between the words 'Sub-section (1)' and 'Sub-section (2)' in Clause (a) of Sub-section (2-A) makes it clear that the Court can extend the time specified in Sub-section (1) for the purpose of deposit or payment of the amount mentioned in Sub-section (1) and not for the purpose of deposit or payment of any amount referred to in Sub-section (2) and vice versa. As already pointed out, the admitted amount which the tenant is required to deposit under Sub-section (2), is not the amount referred to in Sub-section (1) although the time within which the admitted amount is to be deposited is the time specified in Sub-section (1).

5. Upon the above construction of, Clause (a) of Sub-section (2-A) I am of the view that the court has no power under Sub-section (2-A) to extend the time for depositing in court the amount admitted by the tenant to be due from him which he is required to deposit along with his application under Section 17 (2). That this construction is correct will also appear from what is provided in the opening paragraph of Sub-section (2). It is clear from that paragraph that in order to maintain an application for determination of the rent the tenant must deposit the amount admitted by him to be due within the time specified in Sub-section (1) along with his application. Therefore, if the tenant makes only an application for determination of rent but does not deposit the admitted amount along with the application and prays for extending the time for deposit of the admitted amount, the application would not be maintainable being violative of the mandatory provisions of the opening paragraph of Sub-section (2). If the legislature intended that the Court should have power also to extend the time for making deposit of the admitted amount under Sub-section (2), it would have made suitable amendment in the opening paragraph of that sub-section.

6. In the above view of the matter, I think, the learned Munsif rightly rejected the application under Section 17 (2) of the Act. The Rule is, therefore, discharged. There will be no order as to costs in this Court.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //