LAKSHAN SARAN VERMA Vs. OM PRAKASH JAISWAL

JUDGEMENT

(1.) The present revisional application is at the instance of the defendant/tenant being aggrieved by an order passed on 16th December, 2011 rejecting the application filed by the tenant under Section 17(2) of the West Bengal Premises Tenancy Act, 1956. In deciding the said application, the learned Judge, 3rd Bench, Small Causes Court at Calcutta has taken into consideration the following facts:-

(2.) In that background, the learned Court considered the application filed by the defendant under Section 17(2) of the West Bengal Premises Tenancy Act on 13th April, 2007. During the pendency of the said application, by an order dated 21st May, 2009 the defence was struck off and accordingly the said application filed under Section 17(2) of the West Bengal Premises Tenancy Act became infructuous. In any event, it appears that the defendant committed default in making payment of rent for the period November 1997 to September 1998. The petitioner filed an application for deposit of rent for the aforesaid period along with a prayer for condonation of delay. The prayer for condonation of delay in depositing the said arrears of rent, although was initially allowed by the learned trial court on July 3, 2002 but the learned Chief Judge, City Civil Court, Calcutta in a revision preferred by the landlords reversed the said order and the said order was upheld by this Court on April 23, 2004 in C.O. No. 26213 of 2003. The said order was unsuccessfully challenged to the Apex Court. The Hon'ble Supreme Court also dismissed the said leave petition being Special Leave to Appeal (Civil) No. 17607/2004 on 01.05.2006 by reason thereof, the said period of delay was condoned and the petitioner confirmed to remain defaulter for the aforesaid period which itself is a ground for striking out the defence. During the pendency of the said proceeding Om Prokash Jaiswal was added as a co-plaintiff and ultimately became the sole plaintiff on April 27, 2009.

(3.) The learned advocate for the petitioner refers to a decision of this Court in Nanda Gopal Das v. Rabindra Nath De and Anr. Reported in 92 C.W.N 1 , for the proposition that the determination in respect of default and arrears of rent under Section 17(2) of the West Bengal Premises Tenancy Act would ordinarily be final for the purpose of that application only and for the purpose of main trial, unless the issue relating to default in the suit and the applications under Section 17 are heard and decided together. The attention of Court is also drawn to the observation made by the Hon'ble Division Bench in Paragraphs 5 to 8 with regard to the scope of Sections 17(1) and 17(2) of the West Bengal Premises Tenancy Act, 1956 which are reproduced herein below:-