Jyotirmoyee Nag, J. - - (1.) The only point raised by the appellant is whether an application under section 17(2) of the West Bengal Premises Tenancy Act 1956 can be disposed of on compromise between the parties and if any breach is committed of the terms of the compromise "whether that would amount to default and in that event whether the court can take action under section 17(3) of the Act by striking out the defence against delivery of possession".
(2.) The facts of the case are as follows : The plaintiff filed an Ejectment Suit against his tenant, the present appellant Prova Sundari Debi in respect of the suit premises u/s 13 of the West Bengal Premises Tenancy Act, 1956 on the ground of default in payment of rent u/s 13 of the Premises Tenancy Act. The defendant appeared and filed an application u/ss 17(2) & 17(2) (A) of the West Bengal Premises Tenancy Act challenging the rate of rent and denying the arrears of rent as alleged by the plaintiff. When the matter u/s 17(2) & 17(2) (A) came up for hearing the learned Munsif on a consideration of a joint petition of compromise filed by the parties, wherein the tenant admitted the rate of rent stated by the plaintiff in the plaint as correct and the arrear of rent was also admitted and further both the parties agreed that/the rental amounts should be deposited month by month by the defendant within 15th of the following month for which it became due and that the arrears of rent would be deposited by instalment as mentioned therein within the 15th of the following month. It was also agreed by the parties that in case of default in payment of rental amounts and the arrears, the plaintiff would be entitled to file an application u/s 17(3) of the West Bengal Premises Tenancy Act. The learned Munsif disposed of the matter as per terms of compromise between the parties as mentioned above. Subsequently an application u/s 17(3) of the West Bengal Premises Tenancy Act was filed by the plaintiff (respondent) on the allegation that the defendant (tenant) did not deposit the rental amounts from the month of September, 1970 and the arrears of rent, within time and a prayer for striking out the defendant's defence against delivery of possession was made by the plaintiff. The application u/s 17(3) was heard by the learned Munsif and he found that the rent for November, 1970 and' also the instalments in respect of the arrears of rent were not deposited within the 15th of the month of December, 1970 as per terms of the compromise petition but the same was deposited two days' later. The learned Munsif found that the defendant had committed default in making deposits. He, however, accepted the argument of the lawyer for the defendant that as the plaintiff withdrew the amount in default, from the Court, the said act of the plaintiff a mounted to waiver. Although it was pointed out to the learned Munsif that section 24 of the West Bengal Premises Tenancy Act regarding waiver by acceptance of the rent was not applicable as the ejectment suit was pending. The learned Munsif was of the view that as the plaintiff withdrew the amount which was in fact deposited beyond time, his conduct amounted to waiver, and he rejected the plaintiff's application u/s 17(3) of the WB PT Act. against the order of the learned Munsif rejecting the application u/s 17(3) of the landlord plaintiff, the present landlord respondent came up in revision u/s 115 of the Code of Civil Procedure, the same being Civil Rule No. 1473 of 1974. At the time of hearing of this Civil Revision case, it was argued by the Advocate for the tenant defendant that the compromise petition on the basis of which the application u/s 17(2) of the West Bengal Premises Tenancy Act was disposed of was a new agreement between the parties and hence an order u/s 17(2) could not be made on the basis of the same and, therefore there was no question of violation of the provisions of section 17(2) of the West Bengal Premises Tenancy Act, if there was any violation it was of the agreement between the parties. It was held by His Lordship Mr. Justice R. Bhattacharya that that was not so as "From the order sheet it appears that the learned Munsif considered the joint petition of compromise and obviously being satisfied with the terms which appeared to him as reasonable, he passed order that the application u/s 17(2) be disposed of in terms of the joint petition of compromise filled by the parties. There can be no doubt that the Court did apply its mind to the terms of the compromise petition and accepting them to be reasonable disposed of the defendant's application in terms of the joint application. I cannot say that there was no valid order u/s 17(2) passed by the Ld. Munsif. In this connection, it has been argued by Mr. Mukherjee that application u/s 27(2) (A) of the West Bengal Premises Tenancy Act is still pending. From the reading of the terms regarding the instalments, it is quite clear that practically speaking the terms of compromise covered both the applications u/ss 17(2) & 17(2) (A) of the West Bengal Premises Tenancy Act. The matter was disposed of by the learned Munsif and it was accepted by the parties that is why subsequently there was no objection from the defendant that the application u/s 17(2) (A) was pending. This argument of Mr. Mukherjee is not accepted". The question that requires decision in this Second Appeal was specifically agitated in revision before His Lordship Mr. Justice Bhattacharya as will appear from the extract given above of the judgment of His Lordship in that case.
(3.) Mr. Pramatha Mitra, learned Advocate, however, submitted that whether an application u/s 17(2) can be disposed of in terms of compromise is a question of jurisdiction and he submits that His Lordship Mr. Justice R. Bhattacharya acted beyond his powers in holding that an order u/s 17(2) could be made in terms of compromise between the parties to the suit and that further. His Lordship Mr. Justice Bhattacharya acted beyond jurisdiction in holding that since the terms of compromise had been violated the defence of the appellant against delivery of possession can be struck-off. Accordingly the judgment of His Lordship Mr. Justice Bhattacharya being without jurisdiction is null and void and can be interfered with by me although I have only co-ordinate jurisdiction with His Lordship. This point raised in this appeal has been specifically decided by His Lordship by finding fa) that the order u/s 17(2) was a valid order based on terms of compromise between the parties, (b) Violation of the terms of compromise would entitle the learned Munsif to pass an order u/s 17(3) of the Act. On the basis of this decision of His Lordship the learned Munsif struck off the defence of the appellant against delivery of possession and decreed the eviction suit. On appeal the judgment and decree of the learned Munsif was affirmed. This decision by his Lordship Mr. Justice Bhattacharya is binding upon me. Since no appeal was preferred against the same, it has become final and (he same question cannot be re-agitated in this Second Appeal.;