Calcutta High Court (Appellete Side)
Smt. Manjushree Mandal And ... vs Sri Jagannath Prasad Ghosh And ... on 28 June, 2021
AD. 46.
June 28, 2021.
MNS.
C. O. No. 1162 of 2021
(Via video conference)
Smt. Manjushree Mandal and another
Vs.
Sri Jagannath Prasad Ghosh and others
Mr. Debdutta Sen,
Ms. Suchismita Chatterjee,
Mr. Malay Kumar Seal,
Mr. Prasun Ghosh
... for the petitioners.
Mr. Sanjoy Bose,
Mr. Priyankar Basu Mallick,
Mr. Koushim Chowdhury
...for the plaintiffs/opposite parties.
Affidavit-of-service filed in Court today be
taken on record.
Both the contesting parties are
represented through learned counsel.
Learned senior counsel appearing for the
petitioners contends that the learned trial judge
proceeded on a basic misconception of Section 7
of the West Bengal Premises Tenancy Act, 1997
(hereinafter referred to as 1997 Act), as well as
the judgments cited before the said court, in
deeming the restriction governing Section 7(1) to
be amenable to Section 5 of the Limitation Act,
1963 (hereinafter referred to as the" Act of
1963").
Learned senior counsel argues, although
Section 40 of the 1997 Act stipulates that
applicability of Section 5 of the Act of 1963 is
subject to the other provisions of the 1997 Act,
since there is no specific stipulation in Section
7(3), which is the penal clause in the section, as
to the time limit under Section 7(1) being
mandatory and in view of the trial court having
taken up the applications both under Section 7(2)
as well as 7(1) of the 1997 Act, the court
proceeded on an erroneous legal footing in
holding that Section 5 of the Act of 1963 was not
applicable even to Section 7(1) of the 1997 Act.
Learned counsel appearing for the
plaintiffs-opposite parties controverts such
submissions and argues that the specific
language of Section 7(1) is itself clear as regards
the mandatory nature of the said sub-section.
That apart, upon placing reliance on the
judgments cited before the trial court, learned
counsel further argues that the Supreme Court
specifically found such time limit to be mandatory,
not being amenable to Section 5 of the Act of
1963.
A conjoint reading of the various sub-
sections of Section 7 of the 1997 Act makes it
very clear that Section 7(1) of the 1997 Act pales
into insignificance once a dispute/determination is
raised/sought under sub-section (2) of Section 7
of the 1997 Act by the tenant. Even the language
of Section 7(1) makes it clear that the same is
subject to the provisions of sub-section (2).
That apart, the question of applicability of
Section 7(1) comes into play only if the tenant
does not dispute the arrears of rent.
Once the arrears are disputed, sub-section
(2) of Section 7 comes into play and the scope of
Section 7(1) loses its force and merges into the
adjudication under Section 7(2) of the 1997 Act.
Although generally applications are filed
accompanying deposits under Section 7(1) as
well, such applications are mere formalities and
not contemplated by the statute at all. The same
is for administrative convenience and is not even
envisaged by Section 7(1) of the 1997 Act.
Rather, Section 7(1) contemplates only a deposit
and does not even speak about any
accompanying application for Section 5 of the Act
of 1963 to be or not to be applicable thereto.
In the present case, although both the
applications under Section 7(1) and 7(2) of the
1997 Act were taken up for adjudication, no
adjudication as such is required within the ambit
of Section 7(1). The question of determination
comes only when a dispute is raised under
Section 7(2) of the 1997 Act. In the present case,
since a determination was sought under Section
7(2) the time limit for deposit, as confirmed by the
Supreme Court report, was mandatorily one
month from the date of receipt of summons.
It may be clarified in this context that the
two references to sub-section (1) in sub-section
(2) of Section 7 of the 1997 Act pertain only to the
respective proceedings and time specified in the
prior sub-section, in order to avoid unnecessary
multiplicity of language. The "proceeding" referred
to in sub-section (1) is, obviously, a proceeding
under Section 6 of the 1997 Act and the time
specified in sub-section (1) is, patently, one
month from the date of receipt of summons (as in
the present case). As such, any application
under sub-section (1) is not a precondition, from
any perspective, for adjudication under Section
7(2) of the 1997 Act. The latter sub-section
stands on an independent footing once a
challenge is taken out to the arrears.
Hence, since the tenant jumped the
stipulated time as specified in sub-section (2) of
Section 7, which merely refers to sub-section (1)
in that limited context, the trial judge was
absolutely justified in rejecting the applications of
the petitioners.
Hence, there is no scope for interference
with the impugned order.
Accordingly, C. O. No. 1162 of 2021 is
dismissed on contest, however, without any order
as to costs.
Urgent photostat certified copies of this
order, if applied for, be made available to the
parties upon compliance with the requisite
formalities.
(Sabyasachi Bhattacharyya, J.)
