Salil Kumar Datta, J. - (1.) This Rule is directed against Order No. 59 dated 7 9.76 passed by the learned Judge, 9th Bench of the City Civil Court, Calcutta, directing hearing of the defendant-tenanta application under Sections 17(2) and 17(2A) and 17(2B) of the West Bengal Premises Tenancy Act in Ejectment Suit No. 146 of 1973.
(2.) It appears that the petitioner has been a tenant under the opposite p ies in respect of the suit premises. He tiled a suit, being Title Suit No. 49 of 1973 on 12th January, 1973, claiming an amount of Rs. 3905/- paid by him for certain agreed repairs and for owners and occupiers shares of municipal taxes. This suit is pending. Thereafter the connected suit was filed on 10th February, 1973 by the opposite parties for recovery of possession of the suit premises on ground of default in payment of rent. In this suit, the defendant filed an application under Section 17(2) and 17(2A) and (2B) of the said Act. It appears that the plaintiff filed an application for hearing of these applications and the defendant also filed a petition under Section 10 of the Code of Civil Procedure on 15.6.76 It may be mentioned that by an earlier order these two suits were directed to be heard analogously after transfer of the Ejectment Suit to the 9th Bench of the City Civil Court where Title Suit No. 49 of 1973 was pending.
(3.) The learned Judge was of the opinion that.in view of the nature of the two suits, the tenants suit should be heard first, as there should be a decision therein as to the amount of rent payable by the tenant. After such decision, there should be an order in this suit under Section 17(2) and 17(2A) and (2B) Even so, the learned Judge was of the opinion further that in view of the provisions of Section 17(2)of the Act, the court has no option in the matter, as under the provisions of section 17(2)of the Act, the court has to make a preliminary order within a period of one year pending final decision specifying the amount due, if any, from the tenant to enable the tenant to deposit the amount within a month from the date of the preliminary order and, thereafter, the final order is to b.e passed as soon as possible. Now, the exact wording of the said section is. as follows:- "17(2). If in any suit or proceeding referred to in sub-section (1) there is any dispute as to the amount of rent payable by the tenant, the tenant shall, 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 determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. On receipt of such application, the court shall - (a) having regard to the rate at which rent was last paid, and period for which default may have been made, by the tenant, make, as soon as possible within a period not exceeding one year, a preliminary order, pending final decision of the dispute, specifying the amount, if any, due from the tenant and thereupon the tenant shall, within one month of the date of such preliminary order, deposit in court or pay to the landlord the amount so specified in the preliminary order ; and .........";