A tenant is entitled to claim adjustment of an advance made to the landlord against future rents, pursuant to an agreement between the parties, in an application under Section 17 (2) of the West Bengal Premises Tenancy Act.

( 1 ) THIS is a revisional application at the instance of the defendant in a suit for eviction being Title Suit No. 146 of 1976 of the 6th Court of the learned Munsif at Alipore. The order impugned is one dated 8-1-80, passed by the learned Munsif disposing of the defendant's application under Section 17 (2) of the West Bengal Premises Tenancy Act.

( 2 ) THE plaintiffs-opposite parties instituted the suit for eviction on the ground amongst others of default. After appearance, the tenant-defendant filed an application under Section 17 (2) of the West Bengal Premises Tenancy Act, raising various disputes. One of the disputes raised was to the effect that there exists no relationship of landlord and tenant between the plaintiffs and the defendant. The other dispute raised was with regard to the quantum of arrears. According to the defendant, he had advanced a sum of Rs. 6,350. 00 to the landlords on a specific agreement that the said amount would be adjusted against monthly rents due and payable by the defendant on and from the month of May 1970. That amount was taken loan of by the landlords for effecting repair to the premises as they were short of funds. It was further claimed by the tenant-defendant in this application under Section 17 (2) of the Act that notwithstanding such advance the landlords effected no repairs and, as such, he himself was compelled to effect repairs at a total cost of Rs. 1,950. 00. He claimed that he is entitled to claim adjustment of the above two amounts of Rs. 6,350. 00 and Rs. 1,950. 00. He further claimed adjustment of a sum of Rupees 329. 73 towards the Corporation taxes paid by him on behalf of the landlords.

( 3 ) THIS application was strongly contested by the plaintiffs-landlords both on merits and on the technical objection that such a claim of adjustment is not admissible in an application under Section 17 (2) of the Act.

( 4 ) ON the materials before the Court, the learned Munsiff found the existence of relationship of landlord and tenant between the plaintiffs and the defendant and that dispute raised in the application under Section 17 (2) was decided in favour of the plaintiffs. On the claim of adjustment the learned Munsif took the view that the tenant-defendant cannot claim adjustment of any of the amounts as claimed since those advances were made as separate transactions and cannot be gone into in an application under Section 17 (2) of the Act. In holding as such, the learned Munsif relied on an earlier single Bench decision of this court in the case of Bhagban Shaw v. Smt. Simmi Goyal, 1978 (2) Cal LJ 254: (AIR 1978 NOC 248) (Cal ). That is the order now impugned before us in this revisional application.

( 5 ) MR. Ganguly appearing in support of this Rule has Contended that the learned Munsif failed to appreciate correctly the principles enunciated by this court in the case referred to hereinbefore. According to Mr. Ganguly, if any amount be found due by the landlord to a tenant which upon a lawful agreement between them is to be adjusted against rent payable by the latter to the former, there is no reason why the tenant in an application under Section 17 (2) of the Act is not entitled to claim adjustment of such an amount. Mr. Banerji, however, has strongly contested this point. According to Mr. Banerji, such dues of the tenant arising out of a separate transaction has to be enforced in an independent proceeding and not in an application under Section 17 (2) of the Act.

( 6 ) ON careful consideration of the rival contentions, we are of the view that there is ample substance in the contention of Mr. Ganguly. If any lawful advance which the landlord accepts from the tenant or any amount which is lawfully due from the former to the latter, be agreed between the parties to be adjusted against the rent, that certainly confers a right upon the tenant under the contract to get an adjustment against the rents actually accruing and there is no reason why the tenant can