Decided on May 07,1976



- (1.)THIS rule was obtained against order no. 13 dated 21. 1. 74 passed by the learned Judge, 10th Bench City Civil court, Calcutta dismissing the two applications filed by the defendant tenant under Sections 17 (2) and 17 (2a) (b)of the West Bengal Premises Tenancy act, 1956. The suit was instituted by the plaintiff opposite party for recovery of possession of the said premises on eviction of the defendant petitioner there from on the ground of default in payment of rent. Admittedly, provisions of the West Bengal Premises tenancy Act, 1956 are applicable to the facts of the case. In the application under section 17 (2) of the Act it was stated that the defendant remitted the rents for four months, August to november, 1972 but the same was refused and it was further stated that the defendant was willing to deposit the amount after proper adjudication of the amount due and payable. In the application under section 17 (2a) of the act, it was stated that the amount as would be found due by the court should be permitted to be deposited by instalments at the rate of Rs. 10/- per month as the defendant was an old man and a pension holder. The learned Judge relying on the decision in the case of s. K. Mukherjee v. Saila Bala Sein. reported in 77 C. W. N. 492 held that the defendant was not entitled to the relief without depositing the amount admitted by him to be due and in that view both the applications were dismissed.
(2.)MR. Khastagir, learned advocate appearing in support of the petition has submitted that the decision relied on by the learned Judge has been dissented from by a Division Bench subsequently and it appears to be so in respect of amount admitted to be due with reference to sub-section (2) of Section 17 as will appear from the decision in the case of Maliram Agarwala v. B. Agarwala, reported in 78 C. W. N. 901. Accordingly, it was submitted the impugned order cannot be sustained. Mr. Chatterjee, learned advocate appearing for the plaintiff opposite party, has submitted that the defendant tried to raise a dispute when admittedly the rent for the months of August, 1972 to november, 1972 was due and payable by the defendant to the plaintiff. As the application under section 17 (2)was not maintainable in the absence of any dispute, the application under section 17 (2a) was also not maintainable as it depended on the adjudication of the dispute which was non-existent. He has further submitted that in view of the conduct of the defendant, the court should not exercise the discretion in favour of the tenant.
(3.)UNDER the provisions of sub-section (2a) of section 17 of the Act, any amount admittedly due under the provision of Sub-section (1) or (2) of section 17 may be paid by such instalments and by such date as the court may think fit having regard to the attending circumstances. The existence of a dispute as to the amount of rent payable by the tenant is not a condition precedent for making an application under sub-section (2a) as its provisions apply notwithstanding anything contained in Sub-section (1) apart from Sub-section (2) of Section 17. Accordingly, even if there is no dispute, it cannot be said that the application under this subsection is not maintainable in law as contended.

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