Judgement

NATARAJAN, J.:- This appeal by special leave is by a tenant and is directed against the judgment of the Calcutta High Court in an appeal against Appellate decree No. 1700 of 1972. The defence of appellant in the suit filed by the first respondent for eviction was struck out and thereafter a decree for eviction was passed and the said decree was confirmed by the Appellate Court and the High Court and hence this appeal by special leave.

2. During the pendency of the suit the first respondent had entered into an agreement for sale of his building in which the suit property forms the ground floor to one Ramdin Singh Agarwala but subsequently executed a sale deed in favour of one Chidanand Halder. Ramdin Singh Agarwala filed a suit for specific performance in the Court of the Sub-Judge, Alipore, and obtained a decree. The subsequent purchaser Chidanand Halder has filed an appeal against the judgment and decree in the said suit and the appeal is pending disposal before the High Court. Both the parties, claiming to have acquired title to the building of which the suit property forms a part have filed CMP Nos. 19671 and 32297 of 1986 seeking impleadment in this appeal.

3. The first respondent who succeeded to the suit property after the death of his father filed a suit against the appellant and its director the second respondent for ejectment on the ground of default in payment of the monthly rent of Rs. 550/- from March, 1965 to July, 1966. The appellant filed a written statement denying the default in payment of rent and also filed an application under S. 17(2), West Bengal Premises Tenancy Act, 1956 (for short the Act) to seek the orders of the Court regarding the amount of rent payable to the landlord.

4. During the pendency of the proceedings the West Bengal Premises Tenancy (Amendment) Ordinance No. VI of 1967 (later replaced by the West Bengal Premises Tenancy (Amendment) Act 30 of 1969) came to be promulgated with effect from 26-8-67. By S. 2 of the Ordinance sub-ss. (2A) and (2B) to S. 17 of the Act were inserted. Section 5 of the Ordinance gave retrospective effect to the amendments by providing that the amendments made by S. 2 of the Ordinance shall have effect in respect of all suits including appeals which were pending at the date of commencement of the Ordinance. The amendments inter alia enabled tenants who were, in default to apply to the Court and pay the arrears of rent in instalments and thereby avert their eviction.

5. To avail the benefit of the amended provisions the appellant preferred an application on 22-9-67, i.e., within one month from the date of promulgation of the Ordinance under S. 17(2A)(b) praying for payment of the arrears of rent in instalments. By order 39 the trial Court fixed the amount of arrears payable at Rs. 13,602 and gave directions for the amount being paid in three instalments. As an error was noticed in the calculation of the rent arrears, the appellant filed a review petition and the Court re-fixed the arrears at Rs. 9,752/- by Order 72. Subsequently this order was also revised and eventually the appellant paid the entire arrears of rent in accordance with the directions of the Court by 31-7-70. It may be stated here that the payment covered the period ending with 29-2-1968, i.e. up to the end of the month previous to the date on which Order 39 was made, viz. 16-3-1968.

6. In the meanwhile the first respondent had filed an application under S. 17(3) for striking out the defence of the appellant against the delivery of possession of the demised premises for non-compliance with the terms of S. 17(1). On 14-3-70 the Court allowed the said application and struck out the defence of the appellant, on the ground that in paying the rents for the months of September, 1968 and March, 1969 there had been a delay of 44 days and 6 days respectively and this was in contravention of S. 17(1) of the Act. Thereafter the suit for eviction was decreed and the said decree came to be confirmed by the App