S.K. Mokherjee, J.@mdashThe instant Second Appeal is. directed against a judgment of affirmance. The tenant-defendant is the Appellant before this Court. The suit was on the ground of default on the part of the defendant for five months, namely, October 1974 to February, 1975. The monthly rental was Rs. 50/-.
2. The suit which was initiated in the year, 1975 has certain special features. In the suit the defendant made an application u/s 17(2AXb) of the West Bengal Premises Tenancy Act (hereinafter referred to as the Act) admitting that he was a defaulter for five months and praying for instalments of Rs. 20 per month The said application stood dismissed for default. An application u/s 17(3) of Act by the landlord stood allowed ex parte. The defendant, therefater made an application u/s 151 of the Code of Civil Procedure, inter alia, pleading, in substance, a gap of communication as ground of his absence on the aforesaid two dates of hearing of the two applications. The Court directed defendant to deposit the entire amount of arrears upto the date of making of the application as a precondition to the entertainment of such application for restoration and reheairing. The defendant deposited the entire arrears and on consideration of the same the Court allowed the application u/s 151 of the CPC and therafter allowed also the application u/s 17(2A)(b) of the Act holding that in view of the deposit by the defendant the mischief arising out of the alleged default stood cured u/s 17(4) of the Act and dismissed the suit (vide order no. 35 dated 5/6/1979). On appeal (Title Appeal No. 935 of 1979) by the plaintiff, the lower appellate court, by its judgment dated 31/3/1980 set aside all the above orders passed by the trial court and remanded the suit for fresh hearing and fresh trial according to law after hearing out the application u/s 151 of the Code of Civil Procedure, giving opportunities to both the contesting parties, and disposing of the same with reasons. The trial court by its order no. 48 dated 5/8/1981 rejected the Section 151 application with costs on the reason that the procedure adopted by the petitioner amounted to abuse of the process of law. It is pertinent to note at this stage that in that order, none of the pleas taken by the petitioner for his absence on the dates the applications made by him and the plaintiff had been disposed of, was considered on merit. Since defendant failed to deposit the cost imposed by order no. 48 dated 5/8/1981 passed by the learned Munsif, the defendant was debarred from appearing in the suit and on 2/9/1981 the suit was taken up for ex parte hearing with an observation that the defendant takes no further steps and decreed as above. On an appeal being taken the appeal stood dismissed as stated hereinabove. In the Second Appeal before this Court none appeared on behalf of the respondent.
3. Upon hearing Mr. Dhar, in support of the appeal, and considering the materials on record, I am of the view that the instant decree for eviction on the ground of default for five months cannot be sustained. The trial court was under a statutory obligation to consider and dispose of the defendant''s application u/s 151 of the CPC in accordance with law and with reasons. The order by which the same was disposed of did not contain any reason on merit of the defendant''s pleas. It is now well-settled by the decision of the highest judiciary of the country that the provisions of Section 17(3) of the Act are not mandatory but directory and court has a discretion, in appropriate circumstances, not to thrust the mischief arising therefrom on the tenant. In the instant case, the defendant appears to have continued to pay rents to his landlord regularly for almost two decades except for the disputed five months the reason for non-payment of which had been pleaded in the Written Statement. It would be too hasty to conclude, without considering the same on merit, that such default was not bona fide. The rejection of Section 151 application by the Trial court in the manner it was done rendered the defendant''s prayer for instalments u/s 17(2A)(b) of the Act virtually infructuous and such rejection had greater bearing on the validity of the decree passed by the trial court. The reasons of the lower appellate court in affirmation of the said orders of rejection do not also stand scrutiny and appear to have been vitiated by a completely wrong approach. Ail such lacunse, as pointed out by me unequivocally establish that the courts below have failed to exercise their discretion (in the matter of application of the provisions of Sections 17(2A)(b) and 17(3) of the Act is was required to be done by them on the basis of the principles laid down in the cases of
In the facts of the case, each party will bear his own costs. Since the suit is considerably old, it is desirable that the disposal thereof must be expedited as far as possible and preferably be completed within one year from the date of communication of this order to the concerned court.
