Chittatosh Mookerjee, J. - (1.) The apposite p y has instituted an ejectment suit against the petitioner in the Third Court of Munsif Alipore, inter alia, on the allegation that the petitioner was a monthly tenant under him at a rent of Rs.100/-per month and that he was a defaulter since March, 1971. The opposite partys further case is that he reasonably required the suit premises for his own use and occupation. The present petitioner after being served with the summons of the said ejectment suit appeared in the trial court and made an application under sec. 17(2A) (b) of the West Bengal Premises Tenancy Act. The learned Munsif, Third Court, Alipore after considering the said petition under section 17(2A) and the objection filed by the plaintiff, by his order No. 30 dated 12th May, 1976, disposed of the said petition of the defendant. The learned Munsif recorded in his order that the defendant was in arrears from March, 1971 to September, 1974 amounting to Rs. 4300/- and sum of Rs. 1194.44 p. was due as statutory interest. The learned Munsif directed the defendant to deposit the said arrear rent and the interest due in monthly instalments of Rs. 100/-beginning from the month of June, 1976 until he deposited the full amount. The last or the 55th instalment was to be of Rs. 94.44 p. only.
(2.) It is undisputed that the petitioner in terms of the said order under sec. 17(2A) dated 12th May, 1976 had been regularly depositing both current rent/damages and also the instalment due for each month, it is also no longer disputed that the defendant-tenant had failed to deposit under lection 17(1) of the West Bengal Premises Tenancy Act the sum equivalent to rent due from July, 1975 to January, 76. But the said fact of non-deposit from July 75 to January. 76 was not obviously drawn to the notice of the trial court when it had disposed of the defendants petition under sec. 17(2A) by the aforesaid order No. 30 dated the 12th May, 1976. When the said fact of non-deposit was detected the plaintiff had filed an application under section 17(3) of the Act for striking out the defence of the defendant-tenant. The defendant-tenant had also made a petition 'under sub section (1) and sub-section (4) of section 17 of the Act. The learned Munsif, by his order dated the 7th December, 1977 rejected the defendants said petition and allowed the plaintiffs petition under section 17(3) and struck out the defence against delivery of possession of the defendant. The defendant-petitioner thereafter obtained the present rule.
(3.) In my view, the defendants petition under sub-sections (1) and (4) of section 17 was misconceived inasmuch as neither of the two subsections contemplated the filing of any application of the present nature. Secondly, the court at the stage of the passing of the decree has to consider under sub-sec. (4) whether the defendant-tenant had complied with sub-sections (1), (2), or (2A) of sec. 17 and whether a decree under section 13(1) (i) could be passed against him. That stage has not yet reached. But there is another fundamental reason why this Rule should succeed in the manner set out hereinafter. Sub-section (2A) of section 17 starts with the non obstante expression "notwithstanding anything contained in sub-section (1) or sub-section (2)..." In other words, sub-section (2A) engrafts an exception to the provisions of sub-section (1) and sub-sec. (2) to the extent contained in sub sec. (2A). Further, the proviso to clause (b) of sub-section (2A) lays down that where payment is permitted by instalments such sum shall include all amounts calculated at the rate of rent for the period of default including the period subsequent thereto upto the end of the month previous to that in which the order under this sub-section is to be made with interest on any such amount calculated at the rate specified in sub-section (1) from the date when the amount was payable upto the date of such order. Therefore, it is clear that the court in making an order under sub-sec. (2A) (b) shall include the total amount due upto the end of the month previous to the month in which the said order was being made. In the instant case the defendant-tenant had failed to deposit the sum equivalent to rent from July, 1975 to January, 1976 while his application under section 17(2A) was still pending. The court below was under a statutory obligation to include in its order under section 17(2A) (b) all arrears subsequent to the filing of the suit and upto the end of the month previous to that in which he made its said order. In this case obviously the said fact of non-deposit for the aforesaid period, July, 75 to January, 76 was not within the knowledge of the trial court and the trial court, therefore, in its order under section 17(2A) had omitted to make any direction for payment of the aforesaid arrear rent.;