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       In      Radeshyam        Saha      Vs.   Ramani       Mohan

Chakraborty         reported in 87 CWN 868 it was held as

follows:

"It has been contended on behalf of the plaintiff/opposite party that as the defendant/petitioner in his application before the trial court prayed for permission to deposit by instalments the amount to be determined after adjudication under section 17(2) of the Act his prayer for relief under section 17(2A) (b) of the Act was not maintainable and the trial court has rightly rejected it. But I am unable to accept this contention. Where the tenant's application under section 17(2) is found to be not maintainable for failure to deposit the admitted amount of arrears due from him along with the application, there is no determination after adjudication under section 17(2) of the Act of the amount payable by him so as to preclude the tenant from getting the benefit of section 17 (2A) (b) of the Act in respect of the arrears payable under section 17(1) of the Act. Where the tenant makes a composite application under section 17(2) and (2A) (b) of the Act and the application under section 17(2) is not maintainable the court has to deal with the application as one under section 17(2A) (b) of the Act. No doubt the prayer in the composite application in the present case has not been happily worded as the court for reasons already stated cannot permit payment of the amount determined under section 17(2) by instalments contemplated in section 17(2A) (b) of the Act. But a party should not be deprived of the relief to which he is entitled merely because he has not couched his prayer for such relief in appropriate words. Genuine claims should not be defeated by looking at the form and overlooking the substance of the relief sought for. In the present case the defendant in his composite application also prayed for such necessary orders as the court would deem fit and proper. In my view the trial court should not have rejected the defendant's prayer for relief under section 17(2A) (b) of the Act merely because the application under section 17(2) is not maintainable. It has been observed by the learned judge Chittatosh Mookerjee J. sitting singly in Laxmi Narayan Vs. Durga pada Karmakar AIR 1981 Calcutta 352 at page 354 as follows:

Where the tenant makes a composite application under Section 17(2) and 2A(b) of the Act and court finds that Section 17(2) is to maintainable, the court can still deal with application as one under Section 17(2A)(b) of the Act. The fact that the prayer in the composite application has not been happily worded the court cannot refuse payment by installment and a party should not be deprived of the relief to which he is entitled merely because he has not couched the prayer for such relief in appropriate words. Therefore, when the defendant in his composite application prays for such necessary orders as the court would deem fit and proper the court is not bound to reject defendant's prayer for relief under Section 17(2A) (b) merely because the application under Section 17(b) is not maintainable.