- (1.) This appeal is at the instance of a tenant against a judgment of affirmance. The trial court decreed an eviction suit against the appellant on the ground of default and the first appellate court affirmed the same. Both the Courts below held that since the appellant obtained the protection of Section 17 (4) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as "the 1956 Act") in a previous eviction suit between the same parties, the appellant was not entitled to similar protection under Section 7 (4) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as "the 1997 Act") on his second default in view of the bar stipulated in the proviso to Section 7 (4) of the 1997 Act.
(2.) The appellant urges that the default, if any, committed by the appellant in the previous suit was at best of a technical nature, being one not of non-payment but of delayed payment of rent. It is further argued that since the appellant had not sought any protection under Section 17 (4) of the 1956 Act but the court had afforded the appellant such protection of its own in the previous suit, it cannot be said that the appellant had availed of such protection.
(3.) It appears from the materials placed before this Court that in a previous eviction suit between the parties, numbered as Ejectment Suit No. 1838 of 2000, it was held as follows: " It transpires on perusal of the record that the defendant has deposited all the rents regularly up to date, only some of the said deposits are beyond time. It is crystal clear from the record that the default in this case is not one of non-payment of arrears of rent but of delayed payments. Therefore the default is in the technical sense and not in the real sense. In the circumstances, I am inclined to hold that as the defendant has already deposited all the current as well as arrear rents up to date, this court, in its discretion, can condone the said delay for ends of substantive justice (AIR 1987 S.C 1010). Accordingly, the petitioner filed by the defendant is allowed on contest and the delay in depositing certain rents by the defendant is condoned for ends of justice. As a result, the defendant is entitled to get protection under Section 17 (4) of the W.B.P.T. Act. Thus this issue is disposed of accordingly. ";