Calcutta High Court (Appellete Side)
Uttam Kayal vs Sunil Pal on 28 April, 2023
S/L 14
28.04.2023
Court. No. 12
Sourav
CO 2957 of 2011
Uttam Kayal
Vs.
Sunil Pal
Mr. Sourav Sen
Mr. Adrisnata Chakraborty
... for the petitioner.
Mr. Gautam Lahiri
... for the Opposite Party Nos. 1(b), 1(c).
1.
Both the petitioner and the opposite parties are
represented by their learned advocates.
2. In this revisional application as filed under Article
227 of the Constitution of India, the Order No. 77
dated 12.07.2011 as passed in Title Suit No. 222 of
2005 by the learned Civil Judge (Junior Division),
First Court, Serampore, Hooghly has been assailed.
3. By the impugned order, learned Trial Court allowed
the defendant's application for modification of the
Order No. 70 dated 11.03.2011 in part and at the
same time held that since the defendant of the said
suit failed to make deposit as directed vide Order No.
70 dated 11.03.2011, the deposit so made by the
defendant is invalid deposit holding further that the
defendant is still held to be a defaulter.
4. For effective disposal of the instant revisional
application, the facts giving rise to the instant
revisional application is required to be dealt with in a
nutshell.
5. Originally, the Title Suit No. 222 of 2005 was filed by
the plaintiff before the learned Trial Court for
eviction of the defendant under the provisions of
Transfer of Property Act. Subsequently, for some
reasons or other, it has been directed by the learned
Trial Court that the said Title Suit No. 222 of 2005
would be proceeded under the provisions of West
Bengal Premises Tenancy Act, 1997 and accordingly,
the defendant who is the petitioner before this Court
filed the application under Section 7(2) of the West
Bengal Premises Tenancy Act, 1997 which was
disposed of by the learned Trial Court vide Order No.
70 dated 11.03.2011 holding that the present
defendant/petitioner is defaulter in payment of rent
for the month of September 2008, November 2008
and December 2008. Vide order No. 70 dated
11.03.2011, learned Trial Court further directed the
defendant to deposit the said arrears of rent totaling
Rs. 1,050/- together with 10 per cent interest of the
said amount i.e., in total Rs. 1,155/- within one
month from the date of passing of the said order i.e.,
on 11.03.2011.
6. Immediately, thereafter, the defendant/revisionist
filed an application before the learned Trial Court
under Section 152 read with Section 151 of the Code
of Civil Procedure praying for modification of the
Order No. 70 dated 11.03.2011 on the ground that for
the month of September 2008, the
defendant/revisionist has already paid the said rent
on 15.09.2008 in hand and for the month of
November 2008 and December 2008, the rent has
been deposited in Court in the said suit on April 4,
2009 under cover of a challan in view of the earlier
order as passed by the learned Trial Court.
7. Mr. Sen, learned advocate for the
defendant/revisionist submits before this Court that
while passing the impugned order, learned Trial
Court has failed to visualize that for the alleged
default period i.e., September 2008, November 2008
and December 2008, the defendant/petitioner had
paid rent for the month of September 2008 in hand
to the plaintiff and the same was duly received by the
learned advocate for the plaintiff by issuing a money
receipt and further much prior to passing of the
Order No. 70 dated 11.03.2011, the defendant on
April 4, 2009 has already deposited the rent of
November 2008 and December 2008 along with
other months by way of challan in the Trial Court. It
is thus submitted that learned Trial Court committed
serious error of law by not allowing the defendant's
application for modification.
8. Learned advocate for the plaintiff/opposite party,
however, opposes such prayer. It is contended by him
that nothing has been produced before this Court to
substantiate that the order as passed by the learned
Trial Court is incorrect.
9. On perusal of the entire materials as placed before
this Court and after hearing the learned advocates for
both sides, it reveals that at the time of disposal of
the application under Section 7(2) of the West Bengal
Premises Tenancy Act, 1997, the learned Trial Court
vide its Order No. 70 dated 11.03.2011 found that the
defendant/revisionist was defaulter in payment of
rent for the month of September 2008, November
2008 and December 2008 and thus, by the self-same
order, directed the defendant/revisionist herein to
pay the arrears of three months rent together with 10
per cent interest totaling Rs. 1,155/- within one
month from the date of passing of Order No. 70 dated
11.03.2011.
10. Sufficient materials have been placed before this
Court that for the aforesaid three months, the
defendant/revisionist has paid rent either within
time or before time.
11. In view of such, this Court considers that there is
sufficient ground for interference with the impugned
order in exercise of this Court's plenary power under
Article 227 of the Constitution of India.
12. In view of the discussion made hereinabove and in
view of the fact that the defendant/revisionist has
already paid and/or deposited rent for the month of
September, November and December 2008 at the
rate of Rs. 350/- there cannot be any justification to
hold that the defendant is defaulter in paying rent for
the aforesaid three months.
13. In view of such, both the impugned Order No. 77
dated 11.03.2011 as passed by the learned Trial Court
in Title Suit No. 222 of 2005 are hereby modified
holding that the present defendant/revisionist is not
defaulter for the month of September, November and
December 2008 at the rate of Rs. 350/-.
14. With the aforementioned observation, the instant
revisional application being CO 2957 of 2011 is
hereby allowed on contest.
15. Considering the fact that the suit is of the year of
2005 and it is stated to have been reached at the
preemptory stage, the learned Trial Court is hereby
directed to dispose of Title Suit No. 222 of 2005
within a period of three months from the date of
communication of this order without granting
unnecessary adjournment to either of the parties. It is
further directed that learned Trial Court shall
proceed with the Title Suit No. 222 of 2005 in de-die-
in-diem manner.
16. It is, however, made clear that the observation as
made hereinabove is purely limited for the disposal of
the instant revisional application and same will have
no bearing in the decision of the learned Trial Court
when learned Trial Court will pass his judgment in
Title Suit No. 222 of 2005.
17. Urgent photostat certified copy of this order, if
applied for, be given to the parties, upon compliance
of necessary formalities.
(Partha Sarathi Sen, J.)
