- (1.) THIS Rule is directed against an order striking off the defence of the defendant petitioner against the claim for delivery of possession of the premises in suit made by the plaintiff opposite party. The defendant petitioner was a tenant under the plaintiff opposite party in respect of one shop room at premises No. P-7 (now No. 10-C) Suhrwardy Avenue, P. S. Beniapukur, Calcutta, paying a monthly rent of Rs. 20/ -. On July 10, 1957, the plaintiff opposite party instituted a suit claiming eviction of the defendant petitioner from the said premises on the plea that the defendant was a defaulter in payment of rent since November, 1956. The tenant petitioner filed written statement in the said suit denying that he was a defaulter as alleged in the plaint. His specific defence was that he had deposited rents from month of October, 1956 to June, 1957 with the Rent Controller and thereafter he was going on depositing monthly amount calculated at the rate of rent with the trial court.
(2.) THE admitted position is that the defendant petitioner was served with summons in the case on July 17, 1957. He deposited an amount equivalent to the monthly rent for July, 1957 on August 17, 1957, another such amount for August, 1957 on September 14, 1957, and a similar amount for September, 1957 on October 28, 1957. The application under section 17 (3) of the West Bengal Premises Tenancy Act 1956 was filed by the plaintiff opposite party on November 28, 1957 praying that inasmuch as the amount equivalent to the monthly rent for the month of September, 1957 was not deposited in time the defence against delivery of possession should be struck out.
(3.) THE defendant petitioner filed a verified petition of objection to the prayer made by the plaintiff opposite party, of which the material paragraphs are set out below: "para 5. That the petitioner is an illiterate person. He had no knowledge when the courts would reopen after the Pujah holidays; moreover he had been suffering from dysentery, accompanied by fever since 23rd October, 1957, and as such there was delay of 2 days only in depositing rent for September, 1957, instead of depositing rent on the 25th October, 1957 it was deposited on the 28th October, 1957. A medical certificate is enclosed herewith. Para 6. That the delay was quite unintentional. Had he not been prevented by illness and ignorance of the date of reopening, he would have surely deposited rent for September, 1957 on 25th October, 1957. No rent up to date is due from the defendant petitioner. " The defendant petitioner prayed in the said petition that the delay may be condoned and he further prayed for being allowed to contest the claim for possession.;