Decided on January 28,1983



- (1.) These two Rules were obtained by two different tenants of the landlord-opposite party and involve an identical point of law. As such they have been heard together and this order shall govern both of them.
(2.) C.R. No. 2618 of 1981 arises out of Ejectment Suit No. 700 of 1979 now pending in the 5th Bench of the City Civil court at Calcutta and C. R. No. 2663 of 1981 arises out of Ejectment Suit No. 701 of 1979 pending in the same court. Both these suits were suits for eviction on the ground, inter alia, that the defendants (petitioners herein) were defaulters in the payment of rent. In Suit No. 700 of 1979 the allegation was of default in payment of rent at the rate of Rs. 50/- per month from March, 1978. In the other suit the allegation was of default since July,1978. In both these cases the petitioners filed applications under Section 17(2) of the West Bengal Premises Tenancy Act, stating that they were made liable to pay certain sums of money on account of Corporation taxes payable by the landlord pursuant to distress warrants issued at the instance of the Corporation. The petitioners claimed that the amounts which they were thus compelled to pay were liable to be adjusted against the rent. The learned Judge overruled the petitioners' contentions claiming adjustment of rent and observed that the tenants may at the most be entitled to be reimbursed in appropriate proceedings but that it is not open to a tenant to unilaterally adjust a payment made by him on behalf of the landlord but without his consent. Taking such a view of the matter the learned Judge determined the amount which the defendant was liable to pay by way of arrears of rent and directed the same to be paid or deposited in court within one month from the date of the order. Incidentally it may be mentioned that the learned Judge while determining the amount did not include the interest thereon.
(3.) The petitioners' contention now before me is that the amount which the petitioners' claim should be adjusted against the rent, was paid by the petitioners on account of owners' share of Corporation rates pursuant to distress warrants, and that this being not a voluntary payment made by the tenants on account of the landlord is liable to be adjusted against the rent. In support of this contention Mr. Chatterjee appearing for the petitioners in the first place referred to a decision (Ganesh Chandra vs, Bhargabi Debi, 69 C. W. N. 641). This was a case where the tenant paid certain sums of money on account of the occupier's share of municipal rates. It was observed that in view of the provisions of the Calcutta Municipal Act, 1951 that primarily, or in the absence of any agreement to the contrary, the occupier's share of municipal rates would be payable by the tenant or occupier and therefore in order to find the plaintiffs' liability for the said rates there should be such an agreement to the contrary. The case proceeded on the footing that the existence of an agreement to the contrary had not been proved and as such the liability for the occupiers share of rates would be on the defendant and not on the plaintiffs, and the dependant would not be entitled to get any adjustment against rent payable by him, by reason of discharge of such liability on his part. On facts it was found that even assuming that there was an agreement, the defendant on his own materials was only entitled to a deduction of only an amount of Rs. 15.75 N. P. and there would yet remain arrears for some more months even after adjustment of the amount. Therefore on both grounds the defence contention was overruled. On a parity of reasoning it seems that where the agreement is established the defendant tenant is entitled to claim adjustment, even though such a view has not been specifically expressed in the decision. But nonetheless such a view can be spelt out from the judgment itself.;

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