Sahidullah Munshi, J. - (1.) This revisional application, at the instance of the defendant, is directed against Order No.11 dated 30th January, 2016, passed by the learned 3rd Judge, Small Causes Court at Calcutta in Ejectment Suit No.6550 of 2014. The opposite parties/plaintiffs filed a suit for recovery of possession against the defendant/petitioner on the ground of default, change of mode of user of the suit premises and reasonable requirement. The defendant/petitioner entered appearance in the suit and filed an application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997. Petitioner also filed a written statement denying all allegations made in the plaint. In the application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997, the petitioner prayed for determination of the disputes regarding rate of rent and amount of arrears of rent payable by the defendant, if any, in respect of the suit premises. While making such prayer in the said suit, the defendant asserted that he paid rent on behalf of the said company to Sushila Devi Bhatter up to the month of March, 2002 against rent receipts. It has been contended by the defendant/petitioner that he paid a total sum of Rs.16,277/- (Rupees Sixteen Thousand Two Hundred Seventy Seven) only, vide one banker's cheque of State Bank of India issued on 20th March, 2004 for a sum of Rs.5,379/- (Rupees Five Thousand Three Hundred Seventy Nine) only, vide one demand draft of State Bank of India issued on 27th March, 2004 for a sum of Rs.5,469/- (Rupees Five Thousand Four Hundred Sixty Nine) only, and another banker's cheque of State Bank of India issued on 13th May, 2004 for a sum of Rs.5,429/- (Rupees Five Thousand Four Hundred Twenty Nine) only. It has been stated by the petitioner that said banker's cheque and demand draft were duly encashed by the said Sushila Devi Bhatter and deposited the same at Punjab National Bank, Clive Row Branch, Kolkata. The said Sushila Devi Bhatter illegally and wrongfully did not issue subsequent rent receipts for the period from April, 2002 to December, 2005. It has been stated by the petitioner that from the month of April, 2002 till December, 2005, the rent for 45 months @ Rs.357/- (Rupees Three Hundred Fifty Seven) only, amounts to Rs.16,065/- (Rupees Sixteen Thousand Sixty Five) only, and the said Sushila Devi Bhatter already received the said rent but did not issue receipts therefor. It has been contended by the petitioner that an Ejectment Suit being No.538 of 2005 was filed by the said Sushila Devi Bhatter. Sushila Devi Bhater died during the pendency of the suit and the present plaintiffs were substituted as plaintiffs in the said suit. The substituted plaintiffs withdrew the said suit without obtaining any leave from the learned Court and has filed the present suit. The plaintiffs have filed a written objection to the petitioner's application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 and a copy of which has been annexed at page 38 of the revisional application. The plaintiffs have dealt with the defendant/petitioner's averment under paragraph 6 of his application under Section 7(2) of the aforesaid Act with regard to payment of rent amounting to Rs.16,277/- (Rupees Sixteen Thousand Two Hundred Seventy Seven) only. Save and except saying that such averment is denied as false, the plaintiffs have not made any specific averment that they have not received such banker's cheque, demand draft and that they have not encashed those banker's cheque and demand draft in Punjab National Bank.
(2.) Appearing for the petitioner Mr. Rakshit, learned Counsel, submitted that the order impugned cannot be sustained on the ground that the learned Court below has failed to appreciate that rent was duly paid by the defendant/petitioner through demand draft and banker's cheque but no receipt was granted by the plaintiffs. The learned Court below ought to have disbelieved the denial of the plaintiffs with regard to payment of the said amount by the defendant/petitioner. Mr. Rakshit submitted that the learned Court below has failed to take into account that while on the question of default since January, 1994, a suit was previously instituted and such suit having been withdrawn without leave of the Court to file afresh, the default for which the earlier suit was instituted cannot be a ground in the present suit. Mr. Rakshit has further submitted that when the default of rent was claimed by the landlords in the earlier Act, such default cannot be carried forward in the new Act of 1997. According to Mr. Rakshit, since rent receipt has been granted up to March, 2002 there cannot be any default prior to the said period. It is only from April 2002 to December, 2005, the arrear can be claimed but according to him, there is no default for the said period inasmuch as payment has been made by the defendant/tenant in respect of which no receipt has been granted by the landlord. Therefore, according to Mr. Rakshit, learned Court below ought not to have passed the order impugned holding that the defendant is a defaulter for a period from January, 1994 to December, 2015 and the learned Court below has exercised a jurisdiction not vested with him under the law and the order impugned should be set aside.
(3.) In support of his aforesaid submission Mr. Rakshit has relied on the following judgments in the case of - • Rani Bala Debi v. Kamal Krishna Nath reported in 69 CWN 511. • Biraj Mohan Bhattacharjee v. Ajit Kumar Basu reported in 75 CWN 156. • Ghanshyam Das Gupta v. Devilal & Ors., reported in (1990) 1 SCC 465. ;