Calcutta High Court
Asit Kumar Dey vs Bishudhananda Chaudhury And Anr. on 8 December, 1981
Equivalent citations: AIR1982CAL55, 86CWN238, AIR 1982 CALCUTTA 55
ORDER Sudhindra Mohan Guha, J.
1. The petitioner tenant has challenged the order dated 11-8-1981 whereby Sri T. K. Paladhi, Munsif, 3rd Court, Burdwan rejected the application under Section 17 (4) of the West Bengal Premises Tenancy Act.
2. The petitioner, a practising physician was a tenant since the time of the predecessor of the opposite parties in respect of suit premises, used as chamber and Medicine shop at Memary, Dist. Burdwan at a rental of Rs. 40/- per month according to Bengali calendar. A suit for ejectment being Title Suit No. 206 of 1976 in the 3rd Court of Munsif was filed against him on ground of default in payment of rent for the month of Chaitra 1382 B. S. and Baisakh 1333 B. S.
3. On receipt of notice to quit on 4th June, 1976 the petitioner remitted the rent for those two months on 5th June. 1976 which was however refused. On June 18, 1976 the petitioner deposited the sum of Rs. 120.50 P. as rent for Chaitra 1382 B. S. and Baisakh and Jaistha, 1383 B. S. with the Bent Controller. The summons of the suit was served on 10-11-1976. On 22-12-1976 the petitioner filed an application with a prayer for permission to deposit the arrear of rent which had been earlier deposited with the Rent Controller. No order, however, was passed by the Court disposing that application.
4. On an application under Section 17 (3) of the Act the defence against ejectment was struck out on a finding that as the first challan with Rent Controller included payment of rent for three months, namely, Chaitra 1382 B. S. to Jaistha 1383 B. S. the same was not valid, having not been, deposited month by month.
5. Then the petitioner filed an application for review of the order, which was rejected on 6-10-1980 on the around of limitation.
6. Last of all the petitioner came with the application under Section 17 (4) of the Act. By the impugned order this application was rejected. It has been observed that the petition dated 22-12-1976 in support whereof there was no affidavit could not be treated as one under Section 17 (2) of the Act, and the petitioner having failed to apply under Sections 17 (1) and 17 (2) of the Act cannot get protection under Section 17 (4) of the Act.
7. Mr. Kalyanbrata Roy, the learned Advocate for the petitioner argues that the learned Munsif failed to appreciate the scope of the application dated 22-12-1976, which could be treated as one under Sections 17 (1) and 17 (2) of the Act, it is also contended that the learned Munsif committed an error in allowing the application under Section 17 (3) and rejecting the petitioner's application under Section 17 (4) of the Act without disposing of the application dated 22-12-1976 which is still pending.
8. Mr. Saktinath Mukherjee, the learned Advocate for the opposite parties contends that the learned Munsif was perfectly justified in not taking notice of the application dated 22-12-76 as it had been filed beyond the prescribed period of 30 days.
9. With reference to the decision in the case of Mahendra Krishna Nundy v. Smt. Bela Debi, reported in 1975 Cal HN 342 Mr. Mukherjee argues that Sub-section (1) of Section 17 does not contemplate filing of any application. Section 5 of the Limitation Act is not applicable in the matter of deposit to be made in terms of Sub-section (1) of Section 17. But the application date 22-12-1976 does not mention any section under which it was filed. Next it is contended by Mr. Mukherjee that this application cannot also be considered as one under Section 17 (2) as no deposit of rent in arrear was made along with the application. Reliance is made on the decision of a Division Bench of this court in the case of Gunwantrai T. Kamdar v. Satyanarayan Jhunjhunwalla, reported in (1971) 75 Cal WN 372. This was also followed by another Division Bench in the case of Hindustan Industrial Co. v. Chandi Prasad More, reported in (1977) 2 Cat LJ 508. Lastly, it is argued by Mr. Mukherjee that to treat this application as one under Section 17 (2) of the Act is misconceived. The decision of a Division Bench of this Court in the case of Jitendra Chandra Dey v. Tarak Nath Mullick, (1975) 79 Cal WN 112 is referred to. But this is not a case of conversion of an application under Section 17 (1) of the Act into one under Section 17 (2) of the Act. Moreover an order is expected to say whether the application is maintainable or not.
10. It has already been pointed out that the application dated 22-12-1976 would not show under which Sections of the Act it was filed. Certain facts of the case require mention in this connection. The suit was filed on the ground of default in payment of rent for two months. At the time of the hearing of the application under Section 17 (3) of the Act rent for the period in question was in deposit with the Rent Controller but such deposit was not valid. The application dated 22-12-1976 was drafted and filed in a mofussil Court. It did not state under what sections of the Act the application, was filed. It is the established principle of law that the Court should not be too much concerned as to the form, but look into the substance thereof. In the case of Trailakhya Nath Maity v. Bimala Sundari Dasi, reported in ILR. (1953) 2 Cal 385 it is held that in the administration of justice, the court will not refuse any application which on the merits the court can grant, simply because the applicant asked the court to exercise its admitted powers under a wrong section, The judicial procedure has been framed for the furtherance of justice and not to defeat it and the court cannot refuse to act in aid of justice merely on technical grounds, in the instant case there was no error but omission in mentioning the sections under which the relief was sought for. To my mind the same principle will apply. It cannot be conceived that the Court will not take notice of an application on such technical ground. The application dated 22-12-1976 remains un-disposed of or is still pending. It was not proper for the learned Munsif to dispose of application under Sections 17 (3) and 17 (4) of the Act without disposing of the said application. That application is first to be disposed of in accordance with law.
11. The application is thus, allowed without costs. The orders under Sections 17 (3) and 17 (4) of the Act are set aside.