GUNWANTRAI T KAMDAR Vs. SATYANARAYAN JHUNJHNUNWALLA
LAWS(CAL)-1970-2-3
HIGH COURT OF CALCUTTA
Decided on February 09,1970

GUNWANTRAI T KAMDAR Appellant
VERSUS
SATYANARAYAN JHUNJHNUNWALLA Respondents

JUDGEMENT

- (1.) THIS Rule arises out of a suit for ejectment. The petitioner before us was the tenant and the instant Rule, obtained by him, is directed against an order of the learned trial Judge, rejecting, in substance, (petitioner's) his prayer for treating his application, purported to have been made under section 17 (1) of the West Bengal Premises tenancy Act, 1956, as one under section 17 (2) of the said Act, and for passing appropriate orders thereon. The impugned order also purports to deal with two other applications of the tenant, one for relief under the ordinance of 1967 and the other for extension of time or condonation of delay in the matter of deposit of interest under section 17 (1) of the above Act under Section 5 of the Limitation Act. The prayer under the Ordinance was refused upon the ground that there was no compliance in this case with inter alia the provisions of Section 17 (2)of the above Act. The prayer under section 5 of the Limitation Act was refused, first on the ground that the said section would not apply for condoanation of delay or extension of time in the matter of making deposit of interest under Section 17 (1), and, secondly, on the merits, as the learned trial Judge was not satisfied with the tenant petitioner's explanation on the point. In the above state of things, the rejection of the prayer under the Ordinance and also the prayer under Section 5 of the Limitation Act would not be challengeable before us as, in our view, the learned trial Judge made the correct approach on the said points, provided of course, his view on the question under Section 17 (2) of West Bengal Premises Tenancy Act, 1956, is correct. The real question, therefore, is whether the tenant's prayer for treating his purported application under Section 17 (1) of the above Act as an application under section 17 (2), either on his specific application, made for the said purpose or otherwise, should have been allowed. It is clear that, if the application under Section 17 (1) could be treated as an application under Section 17 (2), the tenant's prayer should be granted irrespective of any specific application, made for treating the said application under Section 17 (1) as an application under Section 17 (2 ). The point, therefore, is, whether the tenant's aforesaid purported application under Section 17 (1) can be treated, in the facts of the instant case, as an application under Section 17 (2 ). For this purpose, it is necessary to set out the contents of the said application: "application under Section 17 (1) of the west Bengal Premises Tenancy Act 1956. The humble petition of the defendant above named most respectfully sheweth : 1. That the summons in the above suit was served on 8. 8. 1966.
(2.) THAT your petitioner has deposited rents of the suit premises in the office of the Rent Controller, Calcutta, upto the month of July 1966.
(3.) THAT your petititioner submits that it is necessary that your petitioner should deposit in the above suit the rent of the suit premises for August 1966 and all future rents month by month according to English Calendar month. In the circumstances it is prayed that your petitioner may be allowed to deposit in Court in the above suit rents of the suit premises for August 1966 and all future rents month by month at the rate of Rs. 330/- per month according to English calendar month under Section 17 (1)of the West Bengal Premises Tenancy act 1956. And your petitioner as in duty bound shall ever pray. " it will appear from the above that this application, whatever else it might contain, was really an application for permission to make a deposit. There was no other prayer, not even the usual omnibus prayer "such other or further orders may be passed as to the court may seem fit and proper. " Section 17 (2) of the West Bengal Premises tenancy Act, as we read it, contains certain requirements, namely, (i) that there must be a dispute raised as to the amount of rent payable; (ii) that the tenant must, for purposes of the said sec. , make deposit of all the admitted arrears within the statutory period; and (iii) and this is very important,-that the said deposit, if any, must he made along with an application, praying for determination of the (amount of) rent payable. In our view, this third element is an integral and essential part of the Section and, unless this is present, either expressly or, at least, impliedly, which may be in the form of the usual omnibus prayer, indicated hereinbefore, the requirement of the section would not be satisfied. This view of ours would be fully and directly supported by the decision of this court in the case of (1) Adalat Singh v. T. P. Busu, Appeal from Original decree No. 664 of 1962, decided on november 27, 1968 by A. C. Sen J. and myself. The same view would also be supported by the earlier decision of this court in the case of (2) Sm. Parameswari Debi and ors. v. Nandalal Sharaf and ors. , Civil Revision Case No. 3340 of 1966, decided on February 20, 19)57 by A. C. Sen and A. N. Chakrabarti JJ. , as, on a close reading of the said decision, it is clear that the same was based on the above reasoning. Our attention, however, has been drawn by Mr. Chakraborty, appearing on behalf of the petitioner,and, later on his said submission was reiterated and supported by Mr. Bakshi, who argued the matter in reply,to the decision of this Court, in the case of (3)Amiya Kumar Banerjee v. Bimalendu bose, Civil Revision Case No. 2322 of 1963, decided on January 7, 1965 in which Chatterjee and Gupta JJ. were stated to have taken a different view. We have examined this last-mentioned decision and we do not find, on a close reading of the same that this was really a firm decision on the point. As a matter of fact, their Lordships even did not find, on the materials before them, that there was a dispute regarding the amount of rent payable between the parties, but they remitted the matter to the court below for the purpose of finding out that dispute from certain materials, to be placed on the record by the parties, and then considering the matter, if necessary, under Section 17 (2) of the above Act along with the plaintiff's pending application under section 17 (3 ). As a matter of fact, their Lordships were making observations in their judgment that when the matter would go back and a dispute would be raised, the court might have to decide the matter in accordance with the provisions of Section 17 (2 ). As we have stated above, we do not treat this decision as a firm decision on the point that a mere application for deposit under Section 17 (1) of the above Act would have to be treated by the court, irrespective of other circumstances, as an application under Section 17 (2 ). That, in our opinion, would be ignoring the section altogether and making it infructuous and we do not think that their Lordships, in their above judgment, intended to go so far. We do not, therefore, feel oppressed in the instant case by the said decision. We were also referred to certain decisions of this Court by learned Judges, sitting singly. But, as we have considered the matter on the terms of the section itself, and as we have agreed with the view, expressed by the Division Bench in (1) Adalat Singh v. T. P. Basu, Appeal from Original Decree No. 664 of 1962, referred to above, we would, with respect, differ from the contrary view, if any, expressed in the said single Bench decisions. In the premises, this Rule will fail and it will be discharged. There will be no order for costs, either in this Court or in the court below.;


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