Sm. Susama Sinha vs Sm. Kamala Bala Dutt

P.N. Mookerjee, J.—This Rule arises out of a proceeding u/s 17(5) of the West Bengal Premises Tenancy Act, 1956.

The Petitioner before me was the tenant in respect of the suit premises. In the suit for ejectment, which was brought by the landlord opposite party against the present Petitioner, an application was made by the said Plaintiff for an order u/s 17(3) of the above Act. That application appears to have been dismissed by the learned trial Judge on January 3, 1958, upon the finding, -and that was the admitted position in the case,-that all rents up to date had been duly deposited in time with the Rent Controller. The Plaintiff''s contention that the deposit with the Rent Controller after service of summons of the suit could not be accepted as valid deposit was rejected by the court on that occasion and his application u/s 17(3) was eventually dismissed, as aforesaid.

It is to be noted that, at or about the time, when the above order was passed by the trial court, one, at least, of the prevailing rulings on the point in dispute, was the decision of Renupada Mukherjee, J. in the case of Gokul Bala Roy v. Sarat Chandra Ghosal (1957 ) 61 C.W.N. 890 and the order of the trial court, rejecting the. Plaintiff''s application u/s 17(3) as aforesaid, was in full conformity with the said decision. True, no doubt, a different view had also been taken by this Court, by another; learned Judge (Guha Ray, J.) sitting singly, in the case of Ganesh Chandra Ganguly v. Mahabir Prasad (1957) 61 C.W.N. 893, which, later on was preferred by the Division Bench in the case of Abdul Majid v. Dr. Samiruddin (1858) 02 C.W.N. 535, and on which, that Bench put its final seal of approval. That, however, as I shall presently show, does not and cannot effect the instant case.

After the above Bench decision, the Plaintiff applied for re-consideration of the order of the trial court, rejecting his application u/s 17(3), as aforesaid. This application for re-consideration came up before the learned Judge who had, in the meantime, succeeded the learned trial Judge, who rejected the Plaintiff''s application originally, and the application for reconsideration, which was made u/s 151 of the Code of Civil Procedure, was allowed by this learned Judge upon the view that, having regard to the law, as explained by the above (Bench decision, the Plaintiff''s application u/s 17(3) should succeed. He, accordingly, vacated the previous order of his predecessor and allowed the Plaintiff''s said application. It is against this order that the present Rule was obtained by the tenant Petitioner.

In my view, this Rule should succeed. Whatever be the true view, in law, of the position u/s 17(3) with regard to deposits with the Rent Controller after service of summons of the suit, and, on this point, undoubtedly, the Bench decision (supra) must prevail,-there can be little doubt that the powers u/s 151 of the Code can be exercised by the court only for ends of justice, or for preventing abuse of the process of the court. This is stated in express terms in the section itself and, except for the above purposes, the power u/s 151 of the Code cannot be exercised. However defective the deposits with the Rent Controller might have been from the point of view of Section 17(1) of the West Bengal Premises Tenancy Act, 1956, in view of the Bench decision, referred to above, it is difficult to hold that, for ends of justice, in the circumstances of this case, the previous decision of the trial court, rejecting the Plaintiff''s application under the said Section 17(3), should have been altered or required any alteration or modification.

There is also no question here of any abuse of the process of the court, for prevention whereof the exercise of powers u/s 151 of the Code was necessary.

In the above view, I hold that the learned successor Judge, in setting aside and vacating the order of his predecessor u/s 151 of the Code of Civil Procedure, exercised a jurisdiction, which was not vested in him by law. This Rule, accordingly, will succeed and the order, challenged herein, will be set aside.

Let the hearing of the suit in the trial Court be expedited as much as possible.

In the circumstances of this case, I would direct the parties to bear their own costs in this Court.