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High Court Of Calcutta
Mitra, J.
Dwarkadas Raghiubir Prosad Choudhuri
Vs.
State
Decided On : May 20, 1987
WEST BENGAL PREMISES TENANCY ACT - SECTION 17 (1), 17 (2), 17 (2A), 17 (2B) - APPLICABILITY - ARREARS OF RENT - CALCULATION - TIME FOR DEPOSIT - EXTENSION - SECTION 151 OF THE CODE OF CIVIL PROCEDURE - APPLICABILITY - LIMITATION ACT, SECTION 5 - APPLICABILITY - DISPUTE AS TO AMOUNT OF RENT - ADJUSTMENT OF RENT - SCOPE - EFFECT OF DISMISSAL OF APPLICATION UNDER SECTION 17 (2) ON APPLICATION UNDER SECTION 17 (2A) - REVISION - SCOPE OF JUDICIAL REVIEW - ERRONEOUS ORDER - SETTING ASIDE - REMAND - CALCULATION OF ARREARS OF RENT BY COURT.
Fact of the Case:
Tenant filed applications under Sections 17(2) and 17(2A) of the West Bengal Premises Tenancy Act, 1956, seeking determination of arrears of rent and extension of time for payment. The Munsif determined the arrears of rent without considering the period of default subsequent to the filing of the applications and without determining the entire arrears of rent payable up to the date of the order. The tenant subsequently filed an application under Section 17(1) for depositing the arrears of rent from October 1978 to September 1986, which was rejected by the Munsif. The tenant challenged both orders in revision.
Finding of the Court:
1. The tenant is required to deposit the entire amount of arrears of rent, as admitted by him, along with his application under Section 17(2) and also with his application under Section 17(2A). 2. The time for making such deposit can be extended under Section 17(2A)(a) subject to the provisions of Section 17(2B) and Section 5 of the Limitation Act. 3. Section 151 of the Code of Civil Procedure cannot be invoked to extend the time for depositing arrears of rent under Section 17(1) or under Section 17(2) because of the specific period of limitation provided under Section 17(2B). 4. The delay in making such deposit of arrears of amount under the first part of Section 17(1) or under Section 17(2) as well as in paying the installments under Section 17(2A)(b) or in depositing the current rent under the second part of Section 17(1) can be condoned under Section 5 of the Limitation Act by extending the time, provided sufficient grounds are made out in the application for condonation of such delay. 5. Once the applications under Sections 17(2) and 17(2A) are disposed of, the tenant cannot take recourse to Section 17(1) in paying the arrears of rent accruing prior to the institution of the suit or fallen due subsequent to the filing of the ejectment suit till the date of such payment is made even invoking Section 5 of the Limitation Act. 6. The expression "amount" in Section 17(2A)(b) comprises all sums which the tenant would be otherwise required to deposit or pay under sub-section (1) of Section 17 but for raising a dispute under sub-section (2) thereof. 7. A tenant may raise a dispute within the prescribed time as to the amount of rent payable by him and until the determination of the said dispute a tenant obviously is not liable to deposit the amount of rent in dispute. 8. When the tenant-defendant makes applications both under Section 17(2) and under Section 17(2A), no matter whether the application under Section 17(2) is dismissed on merit or for default, the court is bound to dispose of the application under Section 17(2A) separately in accordance with law.
Issues: 1. Whether the tenant is required to deposit the entire amount of arrears of rent, as admitted by him, along with his application under Section 17(2) and also with his application under Section 17(2A)? 2. Whether the time for making such deposit can be extended under Section 17(2A)(a) subject to the provisions of Section 17(2B) and Section 5 of the Limitation Act? 3. Whether Section 151 of the Code of Civil Procedure can be invoked to extend the time for depositing arrears of rent under Section 17(1) or under Section 17(2)? 4. Whether the delay in making such deposit of arrears of amount under the first part of Section 17(1) or under Section 17(2) as well as in paying the installments under Section 17(2A)(b) or in depositing the current rent under the second part of Section 17(1) can be condoned under Section 5 of the Limitation Act by extending the time? 5. Whether once the applications under Sections 17(2) and 17(2A) are disposed of, the tenant can take recourse to Section 17(1) in paying the arrears of rent accruing prior to the institution of the suit or fallen due subsequent to the filing of the ejectment suit till the date of such payment is made even invoking Section 5 of the Limitation Act? 6. What is the meaning of the expression "amount" in Section 17(2A)(b)? 7. Whether a tenant may raise a dispute within the prescribed time as to the amount of rent payable by him and until the determination of the said dispute a tenant obviously is not liable to deposit the amount of rent in dispute? 8. Whether when the tenant-defendant makes applications both under Section 17(2) and under Section 17(2A), no matter whether the application under Section 17(2) is dismissed on merit or for default, the court is bound to dispose of the application under Section 17(2A) separately in accordance with law?
Ratio Decidendi: 1. The cumulative effect of Sections 17(1), 17(2), and 17(2A) is that the entire amount of arrears of rent, if no dispute as to the amount of rent or the rate of rent payable by the tenant is raised under Section 17(2), is to be deposited by the tenant-defendant within the time specified under Section 17(1). 2. If such a dispute is raised under Section 17(2), then the admitted arrears are to be deposited within the time specified under Section 17(2), and the time in either case can be enlarged under Section 17(2A) subject to the provisions of Section 17(2B). 3. The provisions of Section 5 of the Limitation Act also apply in such cases but not the provisions of Section 151 of the Code of Civil Procedure. 4. Once the applications under Sections 17(2) and 17(2A) are disposed of, the tenant cannot take recourse to Section 17(1) in paying the arrears of rent accruing prior to the institution of the suit or fallen due subsequent to the filing of the ejectment suit till the date of such payment is made even invoking Section 5 of the Limitation Act. 5. The subsequent Order No. 145 dated January 19, 1987 passed by the learned Munsif rejecting the tenant-defendant's application under Section 17(1) filed subsequent to the disposal of his applications under Section 17(2) and 17, (2A) (b) is thus quite legal and valid and merits no interference by me in revision.
Final Decision: The revisional application is allowed. The Order No. 134 dated September 18, 1986 passed by the learned Munsif is set aside. The tenant is granted one month's time from the date of the order to pay up the entire arrears of rent together with interest calculated upto May, 1987 from April, 1986 at Rs. 3,723.26 p. In default, the order will stand recalled and the revisional application will stand rejected.
1. IN this revisional application under Article 227 of the Constitution of India, the petition has challenged two orders, one being Order No. 134 dated September 18, 1986 by which his application under Section 17 (2) and 17 (2a) of the West Bengal premises Tenancy Act,1956 were disposed of by the learned Munsif determining the arrears of rent as Rs. 750. 24 from April, 1976 to September, 1978 without taking into consideration the period of default subsequent to the filing of the said applications and also without determining the entire arrears of rent payable upto the date or? which the said order was made together with interest and the Order No. 145 dated January 19, 1987 by which application filed by the petitioner under Section 17 (1) of the aforesaid Act together with an application under Section 151 of the Code of Civil Procedure read,section 5 of the Limitation Act, were rejected.
2. THE opposite party instituted Title Suit No. 83 of. 1977 in the court of the learned Munsif at Purulia, subsequently re-numbered as title Suit No. 78 of 1986 Of the court of the learned Assistant district 3udge, Purulia for eviction of the petitioner from the suit premises, inter alia on the ground of default in payment of rent. The petitioner in the said suit filed applications under Section 17 (2) and section 17 (2a) of the West Bengal Premises tenancy Act. In his application under section' 17 (2) the petitioner although had not disputed the amount of rent payable by him and admitted that rent fell due since april 1976 but claimed adjustment of Rs. 1156. 15 which was due from the opposite party on account of the price of 11 bags of tobaco stalk dusts supplies by the petitioner to the opposite party and invited the court to determine the amount of rent payable after such adjustment. In his application under Section 17 (2a) the tenant prayed for extension of time and also for installments for paying the amount of rent payable by him after determining the said amount by the Court under Section 17 (2. The learned munsif by his order No. 134 dated 18th September, 1986 disposed of the petitioner's said applications by determining the arrears of rent at Rs. 75d. 24 due from April, 1976 to September, 1978 and granted three equal monthly installments of Rs. 250. 08 each to the petitioner to pay off the said amount. In calculating the said arrears, of rent the learned Munsif, however, observed inter alia that he found no reason to take into consideration the period-of default subsequent to the filing the said applications by the petitioner. From the said order it also transpires that the petitioner did not press his case, of adjustment of rent at the time of hearing of the said applications. Thereafter, on 2 9th September, 1986 the petitioner filed an application under Section 17 (1) together with an application under Section 15. 1 of the Code of Civil Procedure read with Section 5 of the Limitation act, praying for deposing the arrears of rent from October, 1978 upto the month of September, 1986 together with the statutory interest and further prayed for condonation of delay and also for extension of time in making such deposits inter alia on the allegations that he was under the impression that under Section 17 (2) and 17 (2a) the court was to determine the amount due calculating upto the month previous to which such determination was made and till such determination the tenant was under no obligation to pay any amount under Section 17 (1. The learned Munsif by his order No. 145 dated January 19, 1987 rejected the said applications holding inter alia that the application under Section 17 (1) had no legs to stand upon and it was also barred by limitation. Undoubtedly, the petitioner did not move earlier this Court in revision against the aforesaid order No. 134 dated September 18, 1986. He now seeks to challenge the said order in the present revisionai application invoking Article 22 7 of the Constitution of India. Mr. Ganguly, learned Advo
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