Calcutta High Court (Appellete Side)
Subhas Ghosh vs Aloka Ghosh on 15 December, 2022
15.12.2022
SL No.15
Court No.8
(gc)
SA 69 of 2019
CAN 1 of 2022
CAN 2 of 2022
CAN 3 of 2022
Subhas Ghosh
Vs.
Aloka Ghosh
Mr. Debasis Kar,
...for the Appellant.
Mr. Sourav Sen,
Ms. Adrisnata Chakraborty,
...for the Respondent.
Re: CAN 1 of 2022
With
CAN 3 of 2022
Sufficient cause being shown for non-appearance on
13th December, 2019 when the second appeal was dismissed
for default and sufficient explanation has been offered for
not being able to file the application for restoration within
the period of limitation.
We allow the application for condonation of delay and
restore the second appeal to its original file and number.
Accordingly, both the applications stand disposed of.
Re: CAN 2 of 2022
This is an application for substitution of the legal heir
of the original appellant who died on 20.04.2020. The
applicants claimed to be the sons of the appellant. It is
stated that the applicants are major, sui juris and sound
mind.
Accordingly, the substitution application is allowed
and disposed of.
We direct the department to record the death of the
original appellant and substitute the applicants in place and
stead of the original appellant in the memorandum of
appeal.
Re: SA 69 of 2019
We now propose to hear the second appeal which can
be admitted provided there is a substantial question of law
involved. It is an admitted position and not disputed from
the bar that the arrears amounts have not been deposited in
terms of the order passed by the learned Trial Court in
connection with the application filed under Section 7(2) of
the West Bengal Premises Tenancy Act, 1997. It was
contended before the Trial Court as well as the Appellate
Court that the original appellant had deposited amount with
his Advocate who had failed to deposit the said amount in
the Court. It appears from record that on 13th February,
2009 the plaintiff filed a petition under Section 7(3) of the
West Bengal Premises Tenancy Act, 1997 and on the next
date, that is, on 26th March, 2009, the defendant prayed for
adjournment which was allowed as last chance. Thereafter
on 18th May, 2009, the defendant did not take any step and
ultimately on 6th July, 2009, the defence of the defendant
was struck off as none had appeared on behalf of the
defendant on that date. The plaintiff was examined on
different dates and his examination was closed on 16th
March, 2010. Admittedly, there is a non-compliance of the
order dated 5th April, 2007 by which the application under
Section 7(2) of the West Bengal Premises Tenancy Act was
allowed. The time stipulations mentioned under Section 7(2)
read with Section 7(3) of the West Bengal Premises Tenancy
Act are held to be mandatory in the judgment in Vijay
Kumar Singh & Ors. Vs. Amit Kumar Chamariya & Anr.
reported at 2019 (10) SCC 660. It has been specifically
stated that Section 7(2) is mandatory in nature and Court
lacks the power to extend such time.
It is now well settled that the one month time for
deposit of arrear rent along with interest, at the rate at
which it was last paid, as envisaged in section 7(1)(b) of West
Bengal Premises Tenancy Act is mandatory and the tenant
will not be able to take recourse of Limitation act or any
other act to deposit said arrear rent beyond that period. In
this context reliance has been placed upon paragraph 21 of
the Hon'ble Apex Court judgment in Bijay Kumar Singh
And Ors. Vs. Amit Kumar Chamaria & Anr. reported at
(2019) 10 SCC 660.
"21. Sub-Section (3) provides for consequences of non-
payment of rent i.e. striking off the defence against the
delivery of the possession and to proceed with the hearing of
the suit. Such provision is materially different from sub-
sections (2-A) and (2-B) which was being examined by this
Court in B.P. Khemka. Sub-sections (2-A) and (2-B) of Section
17 of the 1956 Act confer unfettered power on the Court to
extend the period of deposit of rent, which is circumscribe by
the proviso to Section 7(2) and sub-section (3) of Section 7 of
the Act. Therefore, the provisions of sub-section (2) are
mandatory and required to be scrupulously followed by the
tenant, if the tenant has to avoid the eviction on account of
non-payment of arrears of rent under Section 6 of the Act.
There is an outer limit for extension of time to deposit of
arrears of rent in terms of the proviso to sub-section (2) of
Section 7 of the Act. The consequences flowing from non-
deposit of rent are contemplated under sub-section (3) of
Section 7 of the Act. Therefore, if the tenant fails to deposit
admitted arrears of rent within one month of receipt of
summons or within one month of appearance without
summons and also fails to make an application for
determination of the disputed amount of rate of rent and the
period of arrears and the subsequent non-payment on
determining of the arrears of rent, will entail the eviction of the
tenant. Section 7 of the Act provides for a complete
mechanism for avoiding eviction on the ground of arrears of
rent, provided that the tenant takes steps as contemplated
under sub-section (2) of Section 7 of the Act and deposits the
arrears of rent on determination of the disputed amount. The
deposit of rent along with an application for determination of
dispute is a precondition to avoid eviction on the ground of
non-payment of arrears of rent. In view thereof, tenant will not
be able to take recourse to Section 5 of the Limitation Act as it
is not an application alone which is required to be filed by the
tenant but the tenant has to deposit admitted arrears of rent
as well."
Admittedly, the appellant committed default and not
deposited the admitted amount of rents. The defence was
struck off.
We do not find any reason to admit the second appeal
as both the Courts have on correct interpretation of law
decreed the suit in favour of the plaintiff after the defence
was struck off. The plaintiff also otherwise was able to prove
his case.
Accordingly, the second appeal stands dismissed at
the admission stage.
However, there shall be no order as to costs.
(Uday Kumar, J.) (Soumen Sen, J.)
