Krishna Pada Mondal Vs. Smt. Mahamaya Mallick and ors. - Court Judgment

Excerpt:
- s.k. mookherjee, j.1. these two revisional applications are directed against order no. 110, dated 11.3.1987 passed by the learned judge,. 11th bench, city civil court, calcutta, in ejectment suit no. 188 of 1983. the suit is one for eviction. by the impugned order the learned judge disposed of the prayer for reliefs under section 17(2) read with section 17(2a)(b) of the west bengal premises tenancy act. it is to be noted at this stage that the application preferred by the defendant was a composite one praying for reliefs as mentioned hereinabove. as far as relief under section 17(2) was concerned, by an order being order no. 48, dated 26th of june, 1984 the learned judge dismissed the application under section 17(2) of the west bengal premises tenancy act as not maintainable, the admitted amount of arrears not having been deposited at the time of riling of application and the said order no. 48 had been challenged by a subsequent revisional application on behalf of the tenant with an application for condonation of delay under section 5 of the limitation act; such revisional application again had been dismissed upon dismissal of the application under section 5 of the limitation act by a learned judge of this court.2. certain factual aspects of the case are required to be noted. admittedly, the defendant was a tenant under the vendor of the present plaintiff one nagendra nath palit. the plaintiff purchased the suit property on 20th november, 1981 and instituted the present suit on or about 10th of december, 1982 on the grounds of default and unlawful subletting. the period of default was alleged to be since august, 1981. the tenant entered appearance in the said suit and filed the aforesaid application. in evidence it was admitted on his behalf that the tenant was a defaulter for ten days in november, 1981 and the months of december, 1981, january, 1982 and march 1982. in the application he claimed adjustment against payment of corporation taxes by him on behalf of the erstwhile landlord. i have already recorded that the revisional application against order no. 48 dismissing the application under section 17(2) of the west bengal premises tenancy act as not maintainable due to nonfulfilment of the pre-conditions, has been held to be barred by limitation. the learned judge while considering the prayer under section 17(2a)(b), had taken evidence and came to a finding that the defendant was a defaulter in the payment of rent for 10 (ten) days in the month of november, 1981, for december, 1981, for january, 1982 and for march, 1982 and directed the defendant to deposit the said amounts by 31st of march, 1987 which the defendant has done. as stated above both the contesting parties have come up against the said order no. 110.3. the controversy which has been raised by the contesting parties is as to whether the learned judge had jurisdiction to direct the defendant to make payment of the determined arrears by extending the time for such deposit and whether by such payment the defendant became entitled to the benefit under section 17(4) of the west bengal premises tenancy act. on behalf of the landlord it has been strongly contended that the learned judge having once rejected the application under section 17(2) of the west bengal premises tenancy act as not maintainable, he had no jurisdiction to determine the arrears as, according to his findings, in order no. 48, there was no dispute in existence and that there being no prayer under section 17(2a)(a) the court had no jurisdiction to extend the time for depositing the admitted amount of arrears. on behalf of the tenant the propriety of the order dismissing the prayer under section 17(2) of the act was sought to be assailed. it was emphatically urged that the piecemeal disposal of a composite application by the learned judge should not be allowed to prejudicially affect the defendant's rights as the way the court proceeded by taking evidence justified the defendant's waiting for determination of the amount to be deposited by him.4. upon a reading of section 17(2a) it appears from the non-obstante clause, prefacing the said sub-section, that the said sub-section was independent of the other two earlier sub-sections (1) and (2) and even if the defendant defaulted in complying with such other sub-sections (1) and (2) it did not automatically disentitle him to a relief under section 17 subsection (2a). in the instant case, even on dismissal of the defendant's prayer under section 17(2) of the west bengal premises tenancy act, there was no lack of jurisdiction of the court in confirming the amount of admitted arrears and extending the time for depositing the same. such extension is almost a matter of course as normally some time elapses before a prayer under section 17(2) is disposed of and, in cases, where application under section 17(2) of the act fails for non-fulfilment of a precondition, there is no scope for any final order determining amount payable by the tenant and the penal provision of section 17(3) would immediately be attracted. that is why sub-clause (a) of sub-section (2a) has been made independent of sub-sections (1) and (2) of section 17, so that in such cases an opportunity is given to the tenant whose application fails on a technical ground to avoid the mischief of default. it is also significant to note that clause (a) does not specify any criterias or element for extension of time by court whereas sub-clause (b) of sub-section (2a) indicates the factors to be considered by court in granting instalments. the act in question is a beneficial piece of legislation and its provisions should be given a liberal interpretation. in the instant case, on the admitted facts, the court, having fixed the consideration of the petition so far as sections 17(2a)(b) was concerned at a later stage, the defendant cannot be blamed for him non-deposit during the pendency of such application. i do not also feel convinced, for the reasons given hereinabove as also upon consideration of the prayer made by defendant, to accept the submission made on behalf of the landlord that non-mention of 17(2a)(a) in the application by the defendant would preclude the court from, extending the time. the procedure followed by court has led to confusion and complication for which defendant should not suffer. in the circumstances, sitting in revision, i am not inclined to interfere with the impugned order. in support of my above view, i would like to refer to the cases of fakruddin latuwalla v. bhagirathmal kanoria, reported in 83 cwn 325, bhagaban shaw v. simmi goyal, 1978(2) clj 254, lakshmi narayan v. durgapada, reported in 1981 chn 428, rubi banerjee v. mechanics enterprises, reported in : air1988cal252 and radeshyam saha v. ramoni mohan chakraborty, reported in 87 cwn 868.5. in the result, the revisional application of the plaintiff fails and is dismissed. the revisional application of the defendant also fails as the point sought to be argued has become final in view of the dismissal of the other revisional application and the connected rule is discharged. the impugned order is confirmed. there will, however, be no order as to costs.