Prasenjit Mandal, J. - (1.) CHALLENGE is to the Order No.17 dated January 18, 2011 passed by the learned Civil Judge (Junior Division), 1st Court, Contai in Other Suit No.504 of 2009 thereby allowing an application under Section 7(3) of the West Bengal Premises Tenancy Act, 1997.
(2.) THE plaintiff / opposite party herein instituted a suit being Other Suit No.504 of 2009 against the petitioner and other opposite parties for eviction, damages, mesne profits and other reliefs on the ground of, inter alia, default, reasonable requirement etc. before the learned Civil Judge (Junior Division), 1st Court, Contai. THE defendant / petitioner herein is contesting the said suit by filing a written statement controverting the material allegations contained in the plaint. THE plaintiff / opposite party filed an application under Section 7(3) of the West Bengal Premises Tenancy Act, 1997 praying for striking out the defence against delivery of possession on the ground that the defendants failed to comply with the provisions of Section 7(2) of the West Bengal Premises Tenancy Act, 1997. That application was heard by the learned Trial Judge and the same was allowed striking out the defence against delivery of possession. Being aggrieved, this application has been preferred by the defendant no.1 / petitioner herein. Now, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the plaintiff / landlord instituted the said suit for eviction on the ground of, inter alia, default reasonable requirement etc., clearly mentioning in the plaint that the defendants failed to pay rent to the plaintiff at the rate of Rs.700/- per month w.e.f. January 2005 and thus, they became defaulters. When such a contention was raised by the plaintiff in the plaint, the defendants were required to file an application under Section 7(1) and 7(2) of the West Bengal Premises Tenancy Act, 1997. In the instant case, I find from the materials on record that the defendants did not file any such application. So, the fact remains that in spite of specific allegation of default since January 2005, the defendants did not make any payment. They could not show any paper that they had ever paid the amount to the plaintiff or deposited rent with the Rent Controller. So, the fact remains that the defendants were defaulters in payment of rent since January 2005 at the rate of Rs.700/- per month. When the provisions of Section 7(1) and 7(2) of the said 1997 Act, were not complied with, the plaintiff was entitled to file an application under Section 7(3) of the said Act and he did so. The learned Trial Judge has observed that though, the defendants are contesting the suit by filing a written statement, they neither paid nor deposited the arrears of rent as claimed by the plaintiff within the time framed by the statute. Therefore, the prayer of the plaintiff under Section 7(3) of the Act is liable to be allowed. This observation of the learned Trial Judge, I hold, is correct.
(3.) AS regards the quantum of rent, Mr. Rakshit, learned advocate appearing for the petitioner submits that previously, the landlord filed a suit being the O.C. No.43 of 1998 before the learned Munsif, 1st Court, Contai against the predecessor-in-interest of the defendants on the ground of default, inter alia, and that suit ended in compromise on July 29, 1998. According to the terms of the solenama, the rent was fixed at the rate of Rs.600/- per month payable within seven days of the succeeding month and the rent was liable to be enhanced by 15 per cent after every four years w.e.f. January 2002, along with other clauses. Mr. Rakshit submits that according to the terms of the solenama after four years, that is, w.e.f. January 2002, the rent was likely to be Rs.690/- per month but the plaintiff filed the suit claiming the rent at the rate of Rs.700/- per month and so, that was not in terms of the solenama executed between the parties. The quantum of rent had, therefore, not been determined. The arrears of rent had not also been determined. Under the circumstances, Mr. Rakshit submits that according to the decision of C.O. No.2911 of 1984 and the decision of Pulin Kumar Chowdhury v. Sachindra Mohan Bose and anr. reported in 1978(1) CLJ 645, the duty is cast upon the court to determine the arrears of rent, if any, and then to direct the defendants to pay the rent, if any. If the said order is not complied with, then the court may strike out the defence against the delivery of possession. He has also contended by referring the decision of M/s. B.P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick and anr. reported in AIR 1987 SC 1010 and thus, submits that the striking out the defence against the delivery of possession is not mandatory but directory. So, the court may not exercise the discretion. So, the impugned order cannot be supported and it should be set aside.;