Sri Sarada Sangha vs Asoka Sengupta

Amiya Prasad Das, J.—This Rule was issued at the instance of the plaintiff in a suit for ejectment and is directed against an order dated the 7th December, 1970 passed by the Munsif of the Third Court at Alipore u/s 17(2) of the W. Bengal Premises Tenancy Act, 1956 (referred to hereinafter as the Act). The petitioner Sarada Sangha is a registered body registered under Act XXI of 1860 and has been running a hostel at the premises No 28/1A, Gariahat Road. P. S. Tollygunj, Calcutta. The petitioner brought the suit on February 7, 1970 in the Third Court of the Munsif, Alipore against the opposite party for ejectment and mesne profits alleging, inter alia, that the opposite party was in occupation of a seat in the said hostel at a monthly charge of Rs. 42/- with establishment charge of Rs. 28/- and fan charge of Rs. 6/- per month but she defaulted to pay the said charges since July, 1969. The opposite party appeared in the ejectment suit on the 20th March, 1970 on which date she filed an application u/s 17 (2) of the West Bengal Premises Tenancy Act, 1956 stating that the seat-rent was Rs. 42/- but the establishment charge was Rs. 26/- and fan charge was Rs. 4/- per month and denied that she was a boarder liable to pay establishment charge of Rs. 281/- and fan charge of Rs. 6/-. In the said application it is further contended that the rent does not include establishment and fan charges. There was, thus, a dispute between the parties as to the amount of rent payable by the opposite party. The learned Munsif by his order No. 18 dated 7.12.70 held that the rent payable by the opposite party in respect of the suit premises is the amount payable by her for the use and occupation of the suit premises which cannot include the establishment and fan charges and that the rate of rent is Rs. 42/- per month payable according to the English Calendar month. The learned Munsif, accordingly, directed the opposite party to deposit in court or to pay to the landlord the sum of Rs. 714/- being the arrears of rent for the period from July, 1969 to November, 1970 at the rata of Rs. 42/- per month within one month from the date of the order. Against the order the plaintiff has obtained this Rule. Mr. Samarendra Kumar Dutta appearing for the petitioner has urged before me only two points. The first point taken by him is that the application u/s 17(2) of the Act is not maintainable inasmuch as the opposite party did not deposit in court the amount admitted by her to be due while making the application. The second point urged by him is that the learned Munsif should have held that the establishment charges and fan charges also form part of the rent. With regard to the first point Mr. Dutta has drawn my attention to sub-section (2) of section 17 of the West Bengal Premises Tenancy Act. The material portion of sub-section (2) of section 17, which is relevant for our present purpose, runs thus:

(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 (sic) 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........

It appears that the application under sub-section (2) of section 17 of the Act was filed on the 20th March, 1970 within one month from the date of the service of summons which is 20th February, 1970. Sub-section (2) of section 17 lays down the procedure to be followed when there is any dispute between the landlord and the tenant as to the amount of rent payable by the tenant. The procedure prescribed in sub-section (2) says that for the purpose of getting an order of the court determining the amount of rent payable, the tenant is required to make an application for that purpose and shall also make deposit in court of the amount admitted by him to be due to the landlord; This deposit of admitted amount shall be made within the time specified in sub-section (1) of section 17 that is, within one month of the service of summons on the tenant or, where the summons was not served, within one month of his appearance in court. In the present case the application u/s 17(2) of the Act was filed within one month from the date of service of summons on the opposite party. But, at the time of making the application no amount was deposited by her. So far as the seat-rent proper is concerned, it is admitted by the opposite party that the seat-rent is Rs. 42/- per month and, according to her, the seat-rent of Rs. 42/- is the rent proper which only was payable by her. Therefore, the amount admitted by the opposite party to be due from her at the time of making the application u/s 17 (2) was the amount of arrears of seat-rent for the period from July, 1969 till the month of February, 1970 at the rate el Rs. 42/- per month. This admitted amount of arrears of seat-rent was not deposited by the opposite party along with the application under sub-section (2) of section 17. On proper construction of the opening paragraph of sub-section (2) of section 17, it appears to me that an application for determination of the rent payable by the tenant under subsection (2) must be accompanied by a deposit of any admitted amount. It also appears clear to me from the language of the opening paragraph of sub-section (2) of section 17 that when the tenant admits any amount which is due from him, in that case he is required to deposit the admitted amount within the time specified in sub-section (1) of section 17 and along with the deposit, he is also required to make the application for determination of the rent payable. In such a case, the deposit in court of the admitted amount and the filing of the application for determination of the rent payable should go pari passu. It is clear from the language of sub-section (2) of section 17 that the intention of the legislature is that when any amount is admitted by the tenant to be due from him on account of rent payable, the tenant must deposit that amount in court within the time specified in sub-section (1), if he wants determination of the rent by the Court. If the admitted amount is not deposited along with the application under sub-section (2) of section 17, the result would be that the tenant can withhold the payment of the admitted amount of rent for a longer time than what is specified in sub-section (1) of section 17. Such was not the intention of the legislature in enacting sub-section (2) of section 17. If the admitted amount is not deposited along with the application under sub-section (2) of section 17, the provision regarding making of deposit of the admitted amount in that sub-section would be rendered nugatory. Therefore, I am of the view that an application under subsection (2) of section 17 for determination of the rent payable by the tenant should be accompanied by deposit of the amount admitted by him to be due from him and if no such deposit of the admitted amount is made, the application for determination of the rent would not be maintainable.

Since the Rule succeeds on the ground that the application u/s 17(2) was not maintainable for the reasons stated above, I need not enter into and decide the question whether the establishment charge and fan charge form part of the rent.

Mr. Mrinmoy Bagchi, the learned Advocate appearing for the opposite party has raised a new point in this Rule. He contends that since the opposite party is a boarder in a hostel liable to pay for the seat-rent she is not a tenant nor is the hostel a premises within the meaning of the West Bengal Premises Tenancy Act, 1956 and that the tenancy in question is not governed by the said Act Mr. Bagchi has also contended that there is no relationship of landlord and tenant between the parties. As regards the question whether the tenancy of the opposite party is governed by the West Bengal Premises Tenancy Act or not is not relevant for the purpose of disposal of the present Rule. It was the opposite party who took resort to the provisions of sub-section (2) of section 17 of the Act. I am to decide the present Rule on the footing that the West Bengal Premises Tenancy Act applies to the case, Since the opposite party has chosen to apply for determination of rent payable by her under sub-section (2) of section 17 of the Act, it no longer lies in her mouth to say that the case is not governed by the provisions of the West Bengal Premises Tenancy Act. This, however, does not prevent the opposite party from filing an additional written statement if so advised contending that the tenancy in question is not governed by the West Bengal Premises Tenancy Act, and hence, the suit is not maintainable. In the result, the Rule is made absolute and the impugned order No. 18 dated 7th December, 1970 is set aside. In the circumstances of the case, I make no order as to costs. The opposite party''s application u/s 17(2) filed on the 20th March, 1970, is dismissed as not maintainable.