Prasenjit Mandal, J. - (1.) CHALLENGE is to the order no.98 dated June 19, 2007 and order no.108 dated January 18, 2008 passed by the learned Civil Judge (Junior Division), First Additional Court, Alipore in Title Suit No.23 of 2003.
(2.) THE plaintiffs/opposite parties herein instituted a suit being Title Suit No.371 of 1992 before the learned Munsif, Sixth Court, Alipore against the predecessor-in-interest of the petitioners praying for a decree for eviction on the ground of reasonable requirement, habitual default, etc. THE defendants/petitioners are contesting the said suit by filing a written statement. THEy also filed applications under Section 17(1) and 17(2) of the West Bengal Premises Tenancy Act, 1956 and those petitions were disposed of accordingly. Owing to financial stringency, the defendants could not make payment of rent from February, 2005 to April, 2007. For that reason, they filed an application on April 25, 2007 praying for condonation of delay in depositing the rents for the said period. By the other petition dated April 25, 2007 filed by the plaintiffs, they sought for striking out defence against the delivery of possession under Section 17(3) of the 1956 Act. Both the applications were disposed of, first by the order dated June 19, 2007 whereas the application of the defendants was rejected and the application of the plaintiff was allowed. By the second order, the learned Trial Judge has rejected the application under Section 151 of the C.P.C. filed by the defendant praying for permission to deposit the arrears of rent for the aforesaid period. Being aggrieved, the defendants have come up with this revisional application. Now, the point for consideration is whether the order impugned should be sustained. Upon hearing the learned Advocate of both the sides and on perusal of the materials on record, I find that the suit was filed by the plaintiff/landlord for recovery of possession on the ground of default, reasonable requirement, etc. In that suit, the defendants filed application under Section 17(1) and 17(2) of the West Bengal Premises Tenancy Act, 1956. Both the applications were disposed of by the learned Trial Judge. The rent for the premises in suit was Rs.32/- per month payable according to English calendar month. The defendants themselves have admitted that they could not make deposit of rents for the period from February 2005 to April, 2007 owing to financial stringency and for that reason they filed an application dated April 25, 2007 praying for permission to deposit the rents for the said period and also for condonation of delay. Those petitions were rejected by the impugned order. Here, I find that the defendants have failed to comply with the provisions of Section 17(1) of the 1956 Act for a considerable period of more than 2 years continuously. The learned Trial Judge has rightly observed that financial stringency for such long period should not be taken into consideration and he has rejected the applications filed by the defendants. Mr. Chatterjee, learned Advocate appearing on behalf of the petitioner, has referred to the decision of M/s. B.P. Khemka Pvt. Ltd. Vs. Birendra Kumar Bhowmick and anr. reported in AIR 1987 SC 1010 and submits that the Court is vested with discretion to order either striking out of the defence or not depending upon the circumstances of the case and the interests of justice. If the Court has the discretion not to strike out the defence of the tenant committing default in payment or deposit of rent as required under the Act, then the Court surely has the further discretion to condone the default and extend the time for payment or deposit and such a discretion is a necessary implication of the discretion not to strike out the defence. So, I hold that it is the discretion of the Court whether defence should be struck out or not according to the situation. The learned Advocate for the petitioner has also referred to the decision of Krishna Gopal Ghosal Vs. Mihir Baran Nandy and ors. reported in 92 C.W.N. 522 and thus, he submits that the financial stringency is also to be considered at the time of consideration of the application for condonation of delay or to strike out the defence. In appropriate cases, the Court has the right to condone the delay but in the instant case, I find that the rent was very much nominal to the tune of Rs.32/- only per month but the defendants were unable to deposit such rents for a period of more than 2 years continuously.
(3.) THIS being the position, I am of the view that the learned Trial Judge has rightly rejected the application for condonation of delay and he has rightly allowed the application under Section 17(3) of the 1956 Act thereby striking out the defence against delivery of possession. The learned Trial Judge has passed a reasoned order in support of his disposal of the applications in the manner indicated above. I hold, that he has rightly disposed of the matter and in doing so he has not exceeded his jurisdiction or that he suffered from want to jurisdiction in doing so. Therefore, there is nothing to interfere with the impugned order. So, the application fails to succeed. It is, therefore, dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.;