- (1.)This is an application under Section 115 of the Code of Civil Procedure. The application was filed on 22nd May, 2002. A preliminary point was taken by the defendant-opp. party that the application is not maintainable in view of the order passed by the High Court reported in 2003 (1) C.L.J. 263 (Mrityunjay Sen v. Shrimati Sikha Sen). However, the Court was pleased to hold that the revisional application under Section 115 of the Code of Civil Procedure would be converted into an application under Article 227 of the Constitution of India by directing to pay the additional Court fees. This difficulty arose in view of certain amendment which had been directed to be caused by way of amendment of the Code of Civil Procedure, 1999 as well as in 2002. Under Section 32 (1) (i) of the Code of Civil Procedure (Amendment) Act, 1999, the provision of Section 115 of the Code of Civil Procedure, 1908 as amended by Section 12 of this Act, should not apply to or affect any proceeding in revision which had been finally disposed of. Since the learned Counsel appearing for the defendant-opp. party contended that in view of such circumstances, this application under Section 115 of the Code of Civil Procedure against the final order passed by the first appellate Court could not be maintainable.
(2.)I do not agree with such proposition of law, since the very judgment as referred above itself opined that in such circumstances, the application under Section 115 of the Code of Civil Procedure could be converted into an application under Article 227 of the Constitution of India subject to payment of Court fees.
(3.)So far as the merit is concerned, I have gone through the order impugned as well as the application filed by the defendant-opp. party in the Court below and also verious affidavits-in-connection with this application. Admittedly, the main application is made under Sections 17 (2) and 2A of the West Bengal Premises Tenancy Act, 1956 read with Section 17 (1) of the same. The prayer made in such application is restricted only in respect of determination of the month of tenancy of the defendant-opp. party and rate of rent payable, arrears of rent and adjustment of excess etc. The scope and ambit of Section 17(2) is that if in any suit or proceeding is there any dispute as to the amount of rent payable by the tenant, the tenant shall 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. On receipt of such application, the Court shall, having regard to the rate to which the rent was last paid and the period for which default may have been paid, by the tenant, make a preliminary order etc.
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