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High Court Of Calcutta
R. BHATTACHARYYA
CHOTALAL SHAW - Appellant
Versus
RAM GOLAM SHAW - Respondent
Secondappeal 1436 Of 1973
Decided On : 07/31/1975
WEST BENGAL PREMISES TENANCY ACT, 1956 - SECTION 17 - WAIVER OF RIGHT TO STRIKE OUT DEFENCE - DELAY IN DEPOSIT OF RENT - INTERPRETATION OF SECTION 17 - JURISDICTION OF APPELLATE COURT - LANDLORD'S RIGHT TO STRIKE OUT DEFENCE - PROCEDURE UNDER SECTION 17 - SCOPE AND APPLICABILITY.
Fact of the Case:
The plaintiff, a landlord, filed a suit for eviction of the defendant, a monthly tenant, on the grounds of reasonable requirement for his own use and occupation and default in payment of rent. The trial court dismissed the suit, finding that the plaintiff had not proved the grounds of reasonable requirement and default in payment of rent. On appeal, the lower appellate court allowed the appeal and decreed the suit, holding that there had been a violation of the provision of Section 17(1) of the West Bengal Premises Tenancy Act, 1956, as the defendant had deposited the rent for the month of June, 1971, beyond the 15th of the following month.
Finding of the Court:
The High Court held that the plaintiff had waived his right to have the defence struck out under Section 17(3) of the West Bengal Premises Tenancy Act, 1956, for non-deposit or invalid deposit of an amount equivalent to rent for the month of June, 1971, during the pendency of the suit under Section 17(1). The Court further held that the appellate court below erred in law by striking out the defence of the defendant against delivery of possession, as the plaintiff could not succeed in his case on the ground of default if the arrears of rent as contemplated in Section 13 of the West Bengal Premises Tenancy Act, 1956, were not proved.
Issues: 1. Whether the plaintiff had waived his right to have the defence struck out under Section 17(3) of the West Bengal Premises Tenancy Act, 1956, for non-deposit or invalid deposit of an amount equivalent to rent for the month of June, 1971, during the pendency of the suit under Section 17(1)? 2. Whether the appellate court below erred in law by striking out the defence of the defendant against delivery of possession?
Ratio Decidendi: 1. The Court held that the plaintiff had waived his right to have the defence struck out under Section 17(3) of the West Bengal Premises Tenancy Act, 1956, as he had not exercised his right before the starting of the hearing of the suit or before the defendant started leading evidence at the time of trial or at any point of time before the judgment was delivered. The Court further held that the plaintiff's inaction to exercise his right or his gross carelessness or absence of diligence in the matter of taking action under Section 17(3), even if there (sic) would amount to waiver when by such conduct the defendant has gained some advantage in his favour and when judgment had gone against the plaintiff. 2. The Court held that the appellate court below erred in law by striking out the defence of the defendant against delivery of possession, as the plaintiff could not succeed in his case on the ground of default if the arrears of rent as contemplated in Section 13 of the West Bengal Premises Tenancy Act, 1956, were not proved. The Court further held that the procedures referred to in Section 17 of the Premises Tenancy Act are to be followed and complied with in the trial court where the suit is pending for hearing and decision and that the plaintiff-landlord, if willing to exercise his right under Sub-section (3) for getting the defence struck out, must do so in the trial court and not in the appellate court where the appeal awaits decision.
Final Decision: The appeal was allowed, the judgment and decree of the lower appellate court were set aside, and the judgment and decree of the trial court were restored.
( 1 ) THIS second appeal by the defendant is against the decision of the Additional District Judge, Baraset reversing the judgment and the decree passed by the Munsif dismissing the suit of the plaintiff for ejectment against the defendant.
( 2 ) THE plaintiff Ram Golam Shaw brought the suit against the defendant Ramdas Chotelal, a monthly tenant in respect of the suit premises at a rental of Rs. 23 payable according to English Calendar month. The allegations made in the plaint are that he has been carrying on a cloth business at a rented house. Due to the business at the rented house, the plaintiff is suffering inconvenience and wastage of money in spite of his having a house of his own. Moreover, the suit premises is very much suitable for his business. His landlord is demanding excessive rent for the room where he is carrying on business He asked the defendant to vacate the premises but his request has been fruitless. The plaintiff, moreover, requires the suit premises for building and rebuilding as the house has become old and dilapidated. It has further been alleged that the defendant has been a defaulter in payment of rents from the month of October, 1970 to April, 1971. The plaintiff after service of notice of ejectment on the defendant filed the suit for eviction on the ground that he requires the suit premises for his own use and occupation and for building and rebuilding and also on the ground that the defendant has been in arrears of rent for seven months.
( 3 ) THE defendant filed a written statement stating that he has been wrongly described as Ramdas Chotelal Shaw, his name is Chotelal Shaw. The defendant has denied the allegation about nonpayment of rent and challenged the correctness of the allegations that the plaintiff requires the suit premises either for reasonable requirement for his own use and occupation or for the purpose of building and rebuilding.
( 4 ) THE learned Munsif upon consideration of the evidence came to the finding that in a previous suit the defendant signed his name as Ramdas Chotelal end that deposits of rents were made by the defendant describing himself as Ramdas Chotelal. He found that the defendant was correctly described. Regarding the arrears of rent, the learned Munsif found that the defendant duly deposited the rents for the alleged period of default and on hearing the parties upon an application filed under Section 17 (2) of the West Bengal Premises Tenancy Act, he was satisfied that there was no amount due to be deposited towards any alleged default and that the current rents were being deposited by the defendant month by month. The learned Munsif, therefore, found that there was no necessity for the defendant to deposit anything towards arrears of rent. On the question of reasonable requirement for the plaintiff's own use and occupation of the suit premises, the learned Munsif did not find any requirement as alleged by the plaintiff. There was a detailed discussion on the question of requirement and the plaintiff's plea was rejected. The issue relating to requirement of the suit premises for building and rebuilding was abandoned by the plaintiff in the trial court and not pressed. The suit of the plaintiff was, therefore, dismissed.
( 5 ) AGAINST the dismissal of the suit by the trial court an appeal was taken by the plaintiff before the District Judge and the same was disposed of by the Additional District Judge, Baraset Regarding the misdescription of the defendant, the learned Additional District Judge held that the defendant had been correctly described. Regarding the question of reasonable requirement of the plaintiff for use and occupation, the learned Judge concurred with the trial court that the plaintiff had not been able to make out a case for reasonable requirement for use and occupation. As for the ground of default in payment of rent, the learned Judge held that as during the pendency of the suit the defendant deposited the amount at the r
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