BASUDEV PANIGRAHI,J. - (1.)THIS is a revisional application against the order passed by the Munsif, Ist Court, Contai dated 3rd March, 1987 in Title Suit 77 of 1983 rejecting the application filed by the revision petitioner under Section 17-2(A) of the West Bengal Premises Tenancy Act. The opposite party, who is the plaintiff in above suit prayed for ejectment of the revision petitioner on the ground of reasonable requirement and default of rent. During the pendency of the suit it appears that the original plaintiff has transferred the suit property to a stranger who has been added in the trial court. During the pendency of the suit the revisionist filed an application under Sections 17(2) and 17-2(A) of the West Bengal Premises Tenancy Act for determination of rent and granting instalments. The opposite party also is said to have filed an application under section 17(3) of the West Bengal Premises Tenancy Act for striking out the defence of the revision petitioner. All those petitions were taken up together and the learned trial court has rejected the petitions filed by the revision petitioner. Being aggrieved by such order the defendant has filed this revision.
(2.)MR . Bhattacharya, learned counsel appearing for the petitioner at the outset has invited any attention that the Court below did not consider the points raised by the tenant properly and mechanically rejected the application treating the same to have been filed under Section 17(2) of the West Bengal Premises Tenancy Act. Despite such rejection the learned trial Court should have considered independently the application filed by the tenant for granting him instalment regarding the arrears of rent payable by him.
Mr. Roy Chowdhury, learned counsel appearing for the plaintiff/opposite party while supporting the order has strenuously urged that the learned trial court had rightly rejected the application of the tenant, specially when he did not deposit the admitted rent as required under sub- section (1) of Section 20 of the West Bengal Premises Tenancy Act. The trial Court, therefore, has justifiably rejected the application of the tenant. Mr. Roy Chowdhury also submitted that as per sub-section (1) it is sine-qua- non for the defendant to deposit the admitted rent and all other rent payable by him with interest, if any, and further go on depositing the same before 15th of succeeding month. He can further raise a dispute if there is any such determination required to made under Section 17(2) of the Act. If he did not comply with the requirement under sub-section (1) of Section 17 of the West Bengal Premises Tenancy Act, then the trial Court had no other option than reject the same. In this connection he has relied upon a decision reported in (1974) 78 Cal WN 579, (1975) Cal WN 1017, (1972) Cal WN 862, (1972) 2 Cal LJ 594. Though the aforementioned decisions support the contention of Mr. Roy Chowdhury that Court could not grant instalment if the defendant has prayed for determination of rent and payment of the same by instalment in a composite application. But subsequently in another decision of this Court reported in (1981) 85 Cal WN 840 in the case of Lakshmi Narayan Saha v. Durgapada Karmakar it has been held that "the learned Munsif was patently wrong when he held that as the defendants tenant's prayer under Section 17(2) could not be entertained his other prayer under Section 17(2A)(b) of the West Bengal Premises Tenancy Act must also fail. As already observed, it is now conceded by the plaintiff opposite party that the application of the defendant tenant under Section 17(2) and (2A) was in fact filed within the time specified in sub-section (1) of Section 17 of the said Act. The sub-section (2A) of Section 17 provides, inter alia "notwithstanding anything contained in sub-section (1) or sub-section (2) on the application of the tenant, the Court may order" (a) extend the time for deposit or payment of any amount referred to in sub-section (1) or sub-section (2) of Section 17; and (b) permit the tenant to deposit or pay such amount in such instalments and by such dates as the court may fix. In other words irrespective of the provisions of sub-sections (1) and (2) of Section 17 a defendant tenant may apply either for extension of the time specified in sub- section (1) or sub-section (2) of Section 17 for deposit or payment of the amount referred to or pray for instalments of the total sum required to be deposited or paid under sub-section (1) of Section 17. The Section 17(2B) only prescribed the time limit for making application under clauses (a) and (b) of Section 17(2A) of the Act. Thus sub-section (2A) of Section 17 overrides the provisions of sub-sections (1) and (2) relating to the time specified for making deposits or payments. When an application under Section 17(2) is not entertained on the ground that the defendant tenant did not deposit the amount admitted by him to be due on other prayer under Section 17(2A)(b) of the Act cannot be automatically dismissed. When such a prayer under Section 17(2A)(b) has been made within the time specified in Section 17(2B) the Court is required to consider the circumstances of the tenant and also of the landlord and the total sum inclusive of interest required to be deposited or paid under sub-section (1) on account of default in payment of rent and by such dates as the court may fix, when the trial court permits the tenant to pay by instalments the Court under the proviso to clause (b) of Section 17(2A) is required to make the calculations of the amount payable upto the month previous to that in which the order under Section 17(2A) is made. Therefore, until the court under Section 17(2A)(b) calculates the total amount to be deposited there could be no question of the tenant deposting or paying the arrears rent admitted by him to be due."

(3.)IN another decision reported in (1983) 87 Cal WN 868 in the case of Radheshyam Saha v. Ramani Mohan Chakraborty, 1983(2) RCR 503(Cal.) it is held:
"It has been contended on behalf of the plaintiff/opposite party that a the defendant/petitioner in his application before the trial Court prayed for permission to deposit by instalments the amount to be determined after adjudication under Section 17(2) of the Act this his prayer for relief under Section 17(2A)(b) of the Act was not maintainable and the trial Court has rightly rejected it. But I am unable to accept this contention. Where the tenant's application under Section 17(2) is found to be not maintainable for failure to deposit the admitted amount of arrears due from him alongwith the application, there is no determination after adjudication under Section 17(2) of the Act of the amount payable by him so as to preclude the tenant from getting the benefit of Section 17(2A)(b) of the Act in respect of the arrears payable under Section 17(1) of the Act. Where the tenant makes a composite application under section 17(2) and (2A)(b) of the Act and the application under section 17(2) is not maintainable the Court has to deal with the application as one under Section 17(2A)(b) of the Act. No doubt the prayer in the composite application in the present case has not been happily worded as the Court for reasons already stated cannot permit payment of the amount determined under Section 17(2) by instalments contemplated in Section 17(2A)(b) of the Act. But a party should not be deprived of the relief of which he is entitled merely because he has not couched his prayer for such relief in appropriate words. Genuine claims should not be defeated by looking at the form and overlooking the substance of the relief sought for. In the present case the defendant in his composite application also prayed for such necessary orders as the Court would deem fit and proper. In my view trial court should not have rejected the defendant's prayer for relief under section 17(2A)(b) of the Act merely because the application under section 17(2) is not maintainable. It has been observed by the learned Judge Chittatosh Mookerjee, J. sitting singly in Laxmi Narayan v. Durgapada Kurmakar, AIR 1981 Calcutta 352 and 354 as follows :- "When an application under section 17(2) is not entertained on the ground that the defendant tenant did not deposit the amount admitted by him to de due, his other prayer under Section 17(2A)(b) of the Act cannot be automatically dismissed. In the event such prayer under Section 17(2A)(b) has been made within the time as specified in Section 17(2B), the Court is under a statutory duty to consider the circumstances of the tenant and also that of the landlord and the total sum inclusive of interest required to be deposited or paid under sub-section (1) on account of default in payment of rent and to permit the tenant to pay or deposit the total sum of such dates as the Court may fix".

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