Jyotirmay Bhattacharya, J.@mdashThe plaintiffs'' suit for eviction was decree on contest on the ground of default in payment of rent. The defendant was aggrieved by the said decree passed by the learned Trial Judge. Hence he preferred an appeal being Title Appeal No. 11 of 2007. The landlords/opposite parties also filed a cross-objection in the said appeal. The tenant also filed an application under Order 41 Rule 27 of the CPC for adducing additional evidence in the said appeal. The said appeal was ultimately allowed on 29th May, 2009. The cross-examination which was filed by the landlord/respondents was rejected. The suit was remanded back to the learned Trial Judge for a limited purpose as indicated in the body of the said judgment.
2. While disposing of the said appeal by passing the said order of remand, the defendant was directed to deposit all arrear amount equivalent to the rent last paid in the Trial Court positively within one month from the date of the judgment passed in the said appeal. The defendant was also directed to go on depositing the current amount equivalent to rent in the Trial Court month-by-month in terms of the provision contained in section 17 of the West Bengal Premises Tenancy Act, 1956. The learned Trial Judge was also directed to consider as to whether the defendant is entitled to get the relief u/s 17(4) of the said Act.
3. Admittedly, the defendant (tenant) did not deposit the arrear rent as well as the rent for the current months within the time, which was fixed by the learned Appeal Court while disposing of the said appeal. The defendant deposited the arrear rent as well as the rent for the month of July, 2009 on 4th August, 2009.
4. Since such deposit was not made within he time fixed by the learned Appeal Court, the plaintiffs/opposite parties filed an application u/s 17(3) of the said Act for striking out the defence of the defendant. The defendant contested the plaintiffs'' said application by filing objection. The reasons for the delay in depositing such rent was explained by the defendant in his said objection. It was stated therein that since the exact contents of the said order of remand passed by the learned Appeal Court and particularly the direction regarding deposit of such arrear rent was not known to the defendant earlier, the defendant could not comply with such direction of the learned Appeal Court. It was further stated therein that it is only after obtaining the certified copy of the judgment of the learned Appeal Court, the petitioner came to know about the direction passed by the learned Appeal Court regarding deposit of arrear rent and the current rent and immediately after coming to know about such direction, the defendant deposited the current as well as the arrear rents.
5. The learned Advocate appearing on behalf of the petitioner submits that since there was no mala fide on the part of his client for the delay in depositing such arrear rent, such deposit should have been accepted by the learned Trial Judge and the learned Trial Judge ought not to have struck out the defence of the defendant against delivery of possession by treating those deposits as invalid deposits.
6. This Court cannot agree with such submission of the learned Advocate appearing on behalf of the petitioner for the following reasons:
When the learned Appeal Court fixed time limit for deposit of rent within a particular time, the learned Trial Court cannot extend the time for deposit of such arrear rent inasmuch as grant of such extension by the learned Trial Court would amount to modification and/or variation of the order of the appeal Court. Since the Trial Court cannot sit in appeal over the order the appeal court and further since the Trial Court is bound by the order of remand, the learned Trial Judge, in my view, had no option but to strike out the defence of the defendant by treating those deposits as invalid deposits.
7. That apart, fact remains that the defendant has neither prayed for extension of time for depositing such arrear rent before the learned Appeal Court nor he has prayed for acceptance of such deposit after condonation of such delay. In my view, the only course which was left open to the defendant, under these circumstances, was to approach the learned Appeal Court itself for extension of time for such deposit by explaining the reasons for such default.
8. Since this Court is of the view that the deposit which was made by the defendant beyond the time which was given to him by the learned Appeal Court, is invalid deposit, this Court holds that the learned Trial Judge did not commit any illegality in striking out the defence of the defendant against eviction in the said suit u/s 17(3) of the said Acts.
9. The revisional application, thus, deserves no merit for consideration and the same stands rejected.
