MURARI MOHAN MITRA Vs. INDRA NARAYAN KUNDU

JUDGEMENT

(1.) This appeal by the tenant defendant is directed against the judgment and decree passed by the Judge, 10th Bench, City Civil Court. Calcutta decreeing the plaintiff-respondent's suit for ejectment of the defendant-appellant. The respondent sued the appellant for eviction from premises No. 53, Mahatma Gandhi Road, Calcutta-9 on the ground of default in the matter of payment of rent as also for subletting a portion of the premises without the prior consent of the landlord, after service of a notice to quit. The plaintiff alleged that the defendant had failed or neglected to comply with the said notice served On him on September 26, 1966 and accordingly the suit was instituted on March 28, 1967- In the said suit the defendant entered appearance on May 17, 1967 and filed his written statement disputing the default and denying the alleged subletting. On May 23, 1967 the defendant filed an application under Section 17 (1) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as 'the Act') for permission to deposit rent for the month of April and May 1967 and also for subsequent months. On the said permission being granted, the defendant deposited the rent for those months in court. On May 24, 1967 the defendant filed another application under Section 17 (2) of the Act raising a dispute as to the amount of rent in arrears and further contended that he had already over-paid a certain sum to the plaintiff. The plaintiff duly filed his objection against the defendant's application under Section 17 (2) of the Act OD June 13, 1967 and simultaneously the plaintiff filed another application under Section 17 (3) of the Act for striking out the defence against delivery of possession. On September 25, 1967 the defendant filed an application under the provisions of the West Bengal Ordinance VI of 1967 inter alia praying that if the court finds any amount payable by the defendant as arrears of rent, the defendant prayed for payment of the said sum by instalments. To this application the plaintiff also filed his objection on January 27, 1968. On July 13, 1968 the defendant filed an application under Section 5 of the Limitation Act for condonation of delay in filing the application under Section 17 (2) of the Act and an objection thereto was filed by the plaintiff on August 19, 1968. On September 6, 1968 the court below heard the application under Section 17 (2) of the said Act read with Section 5 of the Limitation Act and after hearing the learned Advocates of the parties rejected the application on the ground that Section 5 was not attracted to the facts of the instant case and besides the defendant had not been able to satisfactorily explain the delay in filing the application. On the same date, the court passed an order under Section 17 (3) of the Act striking out the defence of the defendant against ejectment and thereafter the suit was beard and decreed ex parte on February 11, 1969, Against this decision the defendant preferred the instant appeal.

(2.) Mr. Mukherjee, learned Advocate appearing for the appellants in this appeal, has contended before us that the learned Judge was in error in rejecting the defence application under Section 17 (2) on the ground that it was barred by limitation. His contention was that the provisions of Section 5 of the Limitation Act should have been made applicable by the learned trial Judge and in the circumstances explained on behalf of his client, delay of two days in preferring the application under Section 17 (2) of the Act, should have been condoned. In the next place, Mr. Mukherjee contended that assuming that the tenant was a defaulter in the matter of payment of rent, he not having obtained any such relief in respect of the premises on an earlier occasion, is entitled to the benefit of the proviso to Sub-section (4) of Section 17 of the Act and the decree pass- ed in the instant suit cannot, therefore, be sustained. Lastly, Mr. Mukherjee challenged the notice of ejectment which according to him did not specify anything about the termination of the tenancy of the defendant.

(3.) Mr. Tandon appearing for the respondent in this appeal joined issue on all the three points canvassed by Mr. Mukherjee before us and took us through the relevant materials on record. Mr. Tandon contends that even assuming that Section 5 of the Limitation Act is applicable to an application under Section 17 (2) of the Act, the tenant defendant would not be entitled to any relief inasmuch as his initial application for making deposit under Section 17 (1) of the Act was also barred by limitation and the subsequent deposit of rent for the month of April 1968 made by him on 18-5-1968 was also beyond time. Consequently, the tenant defendant was not entitled to claim the benefit of the proviso to Sub-section (4) of Section 17 of the Act.