S.K. Mookherjee, J.@mdashThe present Revisional application is directed against an order dated 8th December, 1986 passed by Sri A.K. Dutta, learned Judge, 9th Bench, City Civil Court-, Calcutta in Ejectment Suit No. 421 of 1975. The defendants are the petitioners. By the impugned order, the learned Judge rejected the defendants application u/s 17(2A)(b) of the West Bengal Premises Tenancy Act, praying, inter alia, for installments. On behalf of the defendants/petitioners, it has been urged, by Mr. Mrinal Kanti Das, that the learned Judge rejected the application as not maintainable only for default of the defendants/petitioners in making deposit of current rent month by month in terms of the latter part of Sub-section 1 of Section 17 of the said Act, overlooking the pendency of the application under Section17(2A)(b) and overlooking also the legal position that'' till the disposal of such application the defendants had no obligation to comply with any part of Section 17(1) of the West Bengal Premises Tenancy Act. According to Mr. Das the proviso to Section 17(2A)(b) as also the non obstante clause with which the said sub-section (2A) commences unequivocally confirm the aforesaid legal position by expressly making the current rents upto month previous to that in which the order in terms of the said sub-section is passed a part of the ''sum'' which the court may permit to be paid by installments notwithstanding the prayer for installments having been restricted to the months of November 1983 February 1985. In consequence, as urged, the defendants had no liability to deposit till the disposal of the said application u/s 17(2A)(of the West Bengal Premises Tenancy Act.
2. Mr. Monoranjan Das, appearing on behalf of the plaintiffs/opposite parties, has contested the propriety and correctness of the submission made on behalf of the defendants-petitioners. He has relied upon the averments in the application u/s 17(2A)(b) as referred to above to show that the defendants restricted the scope of the relief to be granted by Court to the arrears relating to the months of November, 1983 to February, 1985 and in that situation there was no reason for them for non compliance with the requirements of Section 17(1) of the aforesaid Act which is mandatory in nature. Mr. Monoranjan Das has, on the aforesaid basis, submitted that the court below was fully justified in refusing to entertain the application of the defendants/ petitioners and rejecting the same by the impugned order.
3. The submissions made on behalf of the opposite parties are apparently attractive but upon a closer scrutiny of the language used by the Legislature including that of the proviso to Section 17(2A)(b) of the West Bengal Premises Tenancy Act, the said argument is unacceptable. Section 17(2A)(b) in its first part indicates that ''such sum'' will include the arrears but in the following proviso the coverage of the said term has been extended to include not only the arrears but also rents or amounts equivalent thereto upto the month preceding the month in which the order in terms of the said sub-section is passed. In other words, expressly even the current rents accruing after the making of the application for installments in terms of Section 17(2A)(b) are also to form a part of the amount of the installment to be granted by Court. In that view of the matter, I accept the correctness of the contention made on behalf of the petitioner by Mr. Mrinal Kanti Das and hold that the court below acted with material irregularity in the exercise of its jurisdiction and/or failed to exercise a jurisdiction veted in it by law by refusing to entertain the petitioners'' application u/s 17(2A)(b) of the West Bengal Premises Tenancy Act for failure of the petitioners to continue to deposit amount equivalent to current rent for the period subsequent to the date of making the application. This position is confirmed if the non-obstante clause prefacing sub-section (2A) of Section 17 is taken into consideration.
4. In the result, the Revisional application succeeds. The impugned order is set aside and the court below is directed to reconsider the application filed on 4.3.85 as referred to in the impugned order on merit and dispose of the same as expeditiously as possible to prevent prejudice being caused to either of the parties preferably within a period one month from the date of communication of this order to the court below. In fixing the installment amount, the court below may take into consideration the absence of any prayer for installments with regard to current rents since March 1985 in the application of the tenants/petitioners. I keep it on record that except the point, which has been dealt with by me hereinabove, all other points raised by the contesting parties remain open for consideration on merit on the lines of my observations above. There will be no order as to cost.
Let the order passed today be communicated to the court below forthwith.
