Arun Kumar Bhattacharya, J.@mdashThe present revision is directed against the order being No. 64 dated 12.9.2006 passed by the learned 3rd Civil Judge (Jr. Div.), Sealdah in R.S. 169/96 disposing of the application u/s 17(2) of the W.B.P.T. Act filed by the petitioner without disposing of the application under Order 6 Rule 17 CP Code for amendment of the said application u/s 17(2).
2. The circumstances leading the present application are that the O.P./plaintiff instituted the said T.S. 169/96 for eviction on 23.4.96. The petitioner/defendant after entering appearance on 24.7.97 filed the said application u/s 17(2) and (2A)(b) of the W.B.P.T. Act, hereinafter referred to as the said Act. On 18.7.2000 the petitioner filed an application under Order 6 Rule 17 read with Section 151 C.P. Code for amendment of the said application u/s 17(2) for suspension of rent from 31.12.99 till the date of her re-entry into the disputed premises and adjustment of Rs. 20,000/- towards rents. After several adjournments, both the applications u/s 17(2) of the said Act and Order 6 Rule 17 C.P. Code were ultimately fixed for hearing on 11.7.2006 when the petitioner/defendant prayed for adjournment which was rejected and the application u/s 17(2) of the Act was heard ex parte and 3.8.2006 was fixed for order. On 3.8.2006 the petitioner filed a petition praying for fixing a date for hearing of the amendment application before hearing of the application u/s 17(2) which was fixed on 12.9.2006 for order. On that date i.e. 12.9.2006 the said petition dated 3.8.2006 of the petitioner was rejected and the application u/s 17(2) was disposed of directing the petitioner defendant to deposit the due amount.
3. Being aggrieved by and dissatisfied with the said order, the petitioner has come up before this Court.
4. Mr. Sen, learned advocate for the petitioner, on taking me through the xerox copy of the order-sheets assailed the impugned order contending that when his client could not enter into the disputed premises due to the same being kept under lock and key by the, O.P. from 31.12.99, she is not required to pay any rent from that date till her re-entry and she is entitled to adjustment of the amount towards rent, for which the said application for amendment of the application u/s 17(2) was filed, but without disposing of the said amendment application the application u/s 17(2) was disposed of, and as such the impugned order is liable to be set aside. Mr. Bhattacharya, learned advocate for the O.P., on the other hand, contended that though the application u/s 17(2) was filed as far back as on 24.07.97 and that under Order 6 Rule 17 C.P. Code on 18.7.2000 and both the applications were posted for hearing on a number of dates, the petitioner took adjournment after adjournment with a view to dragging on the case, and ultimately on 11.07.2006 the petitioner''s petition for adjournment was rejected and the application u/s 17(2) was heard ex parties followed by passing the impugned order on 12.9.2006, and so there being nothing wrong on the part of the learned Court below, the present application should be dismissed in limine.
5. Undisputedly, the learned Court below fixed both the applications u/s 17(2) of the Act and under Order 6 Rule 17 C.P. Code on 18.4.2006 when due to some cogent reason the hearing was adjourned to 11.07.2006. On that date on rejecting the prayer of the petitioner defendant for adjournment, though the application u/s 17(2) was heard ex parte, no order was passed relating to the application under Order 6 Rule 17 C.P. Code and on 12.09.2006 the impugned order disposing of the application u/s 17(2) was passed. In other words, the said application for amendment was neither heard nor disposed of, and it has still been kept pending. When the petitioner defendant filed the said application for amendment of the application u/s 17(2) of the Act, and the learned Court below fixed both the matters for hearing on a date, without disposing of the said application for amendment the learned Court below should not have disposed of the application u/s 17(2) . As such, the impugned order is not sustainable and deserves to be set aside.
6. Accordingly, the revisional application be allowed. The impugned order dated 1.2.2006 passed by the learned Court below is set aside.
7. Let a copy of this order be sent down at once to the learned Court below with a direction to dispose of the application for amendment followed by application u/s 17(2) of the said Act either on the same date or on different dates, in accordance with the law as expeditiously as possible, preferably within a period of two months from the date of communication of the order without granting unnecessary adjournment to either of the parties.
8. Urgent xerox certified copy of this order, if applied for, be supplied to the learned advocates for the parties with utmost expedition.
