- (1.) Sharashibala Roy Chowdhury, who is the Petitioner in C.R. No. 864 of 1977, has brought Title Suit No. 88 of 1972 against M/s. Jewan Ram Sheoduttaraj and Satyanarayan Prosad (who are the Petitioners in C.R. No. 1817 of 1977) for ejectment from the ground-floor of premises No. P-11/2, C.I.T. Road, now No. 92, Dr. Sundari Mohan Avenue, on the ground that the Defendants had stopped paying rent since January 1971, the tenants have damaged the premises and that they were using the premises for a purpose other than for which the same had been let out. The Defendant-tenants are contesting the said suit by filing a written statement.
(2.) On April 10, 1973, the Defendants filed an application under Section 17(2) of the West Bengal Premises Tenancy Act, inter alia, stating that they were tenants under the Plaintiff under a deed of lease at a rent of Rs. 500 per month. They alleged that on January 18, 1971, the Plaintiff had refused to allow the Defendants to keep their motor car in the space provided under the lease for parking of the Defendants' car. The Plaintiff had also refused the Defendants to use the servants' quarters as stipulated in the said deed of lease. Since January 19, 1971, the Defendants were forced and compelled to keep their car in a garage and to take on rent accommodation for residence of their servants. The Defendants had been paying monthly rents of Rs. 40 for the garage and Rs. 60 for providing their servants with quarters. Therefore, they were entitled to deduction of Rs. 100 from the monthly rent of Rs. 500. The Defendants, further, alleged that the Plaintiff had failed to make necessary repairs to the suit premises and the Defendants with the consent of the Plaintiff had undertaken necessary repairs. The Defendants had incurred Rs. 2,500 for carrying out the said repairs and they claimed reimbursement of the said sum. Although the Defendants in their application under Section 17(2) expressed their willingness to deposit monthly rent, but they claimed abatement and/or suspension of the rent to the extent of Rs. 100 per month and also adjustment of Rs. 2,500 allegedly spent by them for repairs of the suit premises. They prayed that the dispute as to the amount of rent payable by the Defendant may be settled.
(3.) The Defendants simultaneously filed another application under Section 17(2A) of the West Bengal Premises Tenancy Act stating that they were in financial difficulties in carrying out their business and they were not in a position to pay the entire amount of arrears and current rent. They prayed that they may be allowed to pay the settled and ascertained amount of arrears of rent by way of easy instalments of Rs. 100. The Plaintiff landlord filed objections to the aforesaid two applications under Section 17(2) and (2A) of the West Bengal Premises Tenancy Act filed by the Defendant-tenants. She denied that the Defendant-tenants were entitled to abatement of the rent or to get reimbursement for the repairs of the suit premises allegedly carried out by the Defendants. The Defendants aforesaid applications under Sub-sections (2) and (2A) of Section 17 were dismissed for default but were subsequently restored. The Plaintiff had raised a preliminary objection to the maintainability of the said two applications. The Plaintiff had contended that the Defendants could not pray for granting instalments to pay arrear rent determined under Section 17(2). The learned Munsif relied upon the decision of Rule Bhattacharya J. in Kazi Abul Hossain v. Fazlur Rahaman and Bros.,1974 78 CalWN 579 and upheld the maintainability of the two applications filed by the Defendants. The learned Munsif held that the Court after determination of arrears of rent can grant instalment. There-after, the learned Munsif after allowing the parties to adduce evidence disposed of the aforesaid two applications under Sub-sections (2) and (2A) of Section 17 of the West Bengal Premises Tenancy Act. The learned Munsif found that the Defendants were in arrears amounting to Rs. 10,740 up to October 1976 and the rate of rent from February 1971 would be Rs. 460 per month. The learned Munsif held that the Defendants were entitled to abatement of the contractual rent by Rs. 40 per month on the ground that the Defendants were deprived of the use of the parking space for their car since January 1971. The learned Munsif directed the Defendants to deposit Rs. 10,740 by monthly instalment of Rs. 1,000 each commencing from December 1976. 3. Mr. Banerjee, learned Advocate for the Plaintiff-Petitioner in C.R. No. 864 of 1977, has submitted that the learned Munsif should have dismissed the application of the Defendant-tenants under Section 17(2) of the West Bengal Premises Tenancy Act because of their failure to deposit admitted arrears at the rate of Rs. 400 per month in terms of Section 17(2) of the West Bengal Premises Tenancy Act. The Defendant-tenants failed to comply with the said provisions which required that the tenant should within the time specified in Sub-section (1) deposit in Court the amount admitted by him to be due from him together with an application to the Court for the determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. In the instant case, the Defendants had admitted in their application under Section 17(2) that the contractual rate of rent was Rs. 500 per month and that rent since January 1971 was in arrear. The Defendants' case under Section 17(2) was that since January 1971 they were entitled to abatement of rent and to pay at the rate of Rs. 400 per month because of landlord wrongfully depriving the Defendants of the use of the parking space and of the accommodation in the servants' quarters. The Defendants also claimed reimbursement of a sum of Rs. 2,500 on account of repairs carried out by them. But the Defendants did not deposit the balance amount of arrear rent calculated at the rate claimed by them for the period from January 1971 upto the date of their appearance in the trial Court. The Defendants having failed to deposit the amount of arrear rent which was admitted by them to be due, they contravened the mandatory provisions of Section 17(2) of the West Bengal Premises Tenancy Act. Accordingly, their application under Section 17(2) was not maintainable. Only in case they had deposited the amount admitted by them to be due together with their application under Section 17(2) of the Act, the disputes raised by them regarding abatement of rent and adjustment of costs of repairs could be adjudicated by the trial Court. The Defendants not having deposited the admitted arrears, their application under Section 17(2) of the Act was liable to be summarily dismissed.;