Calcutta High Court
Sri Mrinmoy Sarkar vs Smt. Ram Devi on 11 April, 1989
Equivalent citations: (1990)1CALLT31(HC)
JUDGMENT S.K. Mookherjee, J.
1. The present Revisional application is directed against order No. 68 dated, 21st of August, 1985, passed by the learned Additional Munsif, 3rd Court, Alipore, in Title Suit No. 8 of 1984 disposing of .the defendant/petitioner's application under Section 17(2) of the West Bengal Premises Tenancy Act (hereinafter referred to as the Act).
2. While disposing of the said application, the learned Munsif, came to the conclusion that the agreed amount of rent was Rs. 450 per month payable on and from 1st of October, 1978 with an increase of 10'% per year from October, 1979. It was further found as a fact that the tenant/defendant agreed to pay both the shares of Corporation taxes or any increase thereof. After having determined the rate of rent in that manner and the liability of the defendant for payment of Corporation taxes, the learned Munsif directed payment of Rs. 23,000 as arrears including interest by 23 instalments of Rs. 1,000 each, the first of such instalments being payable within 10th day of October, 1985. The learned Munsif also directed the payment of current rent according to terms of tenancy and with those observations disposed of the application under Section 17(2) of the Wesf Bengal Premises Tenancy Act.
3. On behalf of the petitioner, it has been urged before this Court that the receipt, which is alleged to have disclosed the agreement to pay increased rent, having been challenged on the ground of fraud, the court could not fix up the rate of rent except on the basis of what was actually paid prior to the making of the application. Secondly, it was argued that the rate of rent as claimed in the suit being Rs. 350 per month, the alleged agreement, even if there was any, should be deemed to have been waived.
4. On behalf of the opposite party, the said contentions were met by arguing that on the date of filing of the Plaint the rent claimed was, no doubt, Rs. 350 per month as the rate of Rs. 450 per month did not become operative at that point of time but only from October, 1978. The alleged ground of fraud could not be urged, as in the evidence also, the existence of the agreement had been acknowledged.
5. Upon consideration of the said submissions, I am of the view that since the impugned order was passed under the provisions of Section 17(2) of the Act finally disposing of the application, the court was not wrong in fixing up the rate of rent at Rs. 450 on the basis of the agreement, the existence of which had been admitted in evidence by the tenant/defendant. The difference in the scope of power vested in the Courts of law under the Act as intended by legislature appears clearly upon a comparison of the language of clauses' (a) and (b) of sub-section (2) of Section 17 of the West Bengal Premises Tenancy Act. The primary requirement, on the part of the tenant, while making the application, subject to order of the court, is to deposit the Admitted amount; the preliminary order under clause (a) embodies a direction for deposit at the rate at which rent was last paid and the final order, as in the instant case, under clause (b) must embody the determination of the rate of rent having regard to the provisions of the Act (emphasis is mine). Section 4 of the said Act imposes a liability on the tenant to pay, except where fair rent has been fixed, the rent agreed upon, In other words, upto the stage of the preliminary order, the basis of fixation is substantially that rate of rent, which is acceptable to the tenant whereas the final order involves a process of adjudication of the dispute involved in the light of the statutory provisions. In the context of his findings the learned Munsif, was, therefore, not wrong in fixing up or determining the rate of rent on the basis of agreement between the parties. The said procedure followed by the learned Munsif derives justification from the decision of a Division Bench of this Court in the case of Remington Rand of India Ltd. v. Rajgharia and Others, . The other decisions cited at the bar reported in AIR 1980 Calcutta 103, and arc all distinguishable on facts. The findings of the learned Munsif, as already indicated earlier by me, which are factual findings, cannot be said to be suffering from any jurisdictional infirmity as to call for an interference under Section 115 of the Code of Civil Procedure.
6. The Revisional application, therefore, is dismissed with costs, hearing fee being assessed at 5 Gms.
7. I would like to keep it on record that no prayer has been made before me for extension of the time for complying with the order of the trial Court and no stay of operation of the said order had also been obtained during the pendency of the Revisional application.