SOUMEN SEN,J. - (1.) THIS revisional application is arising out of an order No. 71 dated 02.01.2007 allowing an application filed under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956.
(2.) THE petitioner is a defendant in an eviction suit instituted by one Santosh Kumar Mondal being Title Suit No.228 of 1994. The petitioner received the summons on 8th July, 1994 and entered appearance on 25th July, 1994. Subsequently, a written statement was submitted on 24th July, 1996. It is alleged by the petitioner that the original plaintiff continued to accept rent till his death that is upto December, 2003, either by cash or through money order and his wife being the opposite party No.1 used to issue rent receipts and the money order receipts on behalf of her husband. It is contended that she was receiving rents in respect of both the tenancies since 8th March, 1994 and after the death of the original plaintiff, the opposite parties, namely, present landlords proceeded with the suit. However, one Soma Mondal, claiming to be the daughter-in-law, being wife of the predeceased son of the original plaintiff, started demanding the rent from the petitioner claiming herself as owner of the property, although, she was never made a party to the suit. All of a sudden the opposite parties filed an application under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 on December 14, 2004 praying for striking out of the defence against delivery of possession of the petitioner alleging non-compliance of provisions of Sections 17(1) and 17(2) of the West Bengal Premises Tenancy Act, 1956. The petitioner contested such proceeding by filing written objection on 28th April, 2006 in which was contended that the rent had been paid all along to the original plaintiff till his death i.e. 26th December, 2003. The opposite parties failed to establish themselves as heirs of the original plaintiff and, accordingly, not entitled to receive any rent. On 2nd January, 2007 it was contended that the said application was heard by the learned Court below on the points of law and the matter was adjourned but on the next date, the learned Advocate for the petitioner was surprised to find from the cause list that the application filed under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 had been rejected and the suit was fixed for preemptory hearing. However, from the certified copy of the said order on the following date it was found that the petition under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 was allowed on contest and the defence of the petitioner had been struck out under Section 17(3) of the West Bengal Premises Tenancy Act. In the aforesaid circumstances, this civil revisional application was filed challenging the Order No.71, dated 2nd January, 2007.
(3.) UNDER the old Tenancy Act certain protections were given to the tenant, one of which was that such tenant would be required to tender rent month by month during the pendency of the proceeding initiated by the plaintiff/landlord as mentioned under Section 17. Such protection is given to the tenant under Section 17 of the West Bengal Premises Tenancy Act, 1956. In order to appreciate such contentions reference may be made to Section 17(1), 17(2) and 17(3) of the said Act, relevant portions whereof are set out hereinbelow:- "17(1). On a suit or proceeding being instituted by the landlord or any of the grounds referred to in Section 13, the tenant [shall, subject to the provisions of sub-section (2), within one month] of the service of the writ of summons on him, [or where he appears in the suit or proceeding without the writ of summons being served on him, within one month of his appearance] [deposit in court or with the Controller or pay to the landlord] an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have mae default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate or eight and one-third percent, per annum from the date when any such amount was payable up to the date of deposit, and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate. 17(2). If in any suit or proceeding referred to in sub-section (1) there is any dispute as to the amount of rent payable by the tenant, the tenant shall within the time specified in sub-section (1), deposit in court the amount admitted by him to be due from him together with an application to the Court for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. 17(3). If a tenant fails to deposit, or pay any amount referred to in sub-section (1) or sub-section (2) within the time specified therein or within such extended time as may be allowed under clause (a) of sub- section (2A), or fails to deposit or pay any instalment permitted under clause (b) of sub-section (2A) within the time fixed therefor, the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit." ;