Pushpa Madan & Ors vs M/S. Jagadish Caterar Pvt. Ltd
2023 Latest Caselaw 5091 Cal

                IN THE HIGH COURT AT CALCUTTA
                 CIVIL REVISIONAL JURISDICTION
                         APPELLATE SIDE

PRESENT:

THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE

                             C.O. 449 of 2019
                          Pushpa Madan & Ors.
                                   Vs.
                      M/S. Jagadish Caterar Pvt. Ltd.


For the petitioners                  :       Mr. Tanmoy Mukherjee
                                             Mr. Souvik Das
                                             Mr. K.R. Ahmed
                                             Mr. Rudranil Das


For the opposite parties             :       Mr. Aniruddha Chatterjee
                                             Mr. Sib Sankar Das


Heard on                             :       08.08.2023

Judgment on                          :       17.08.2023




Ajoy Kumar Mukherjee, J.

1. Order dated 29th November, 2018 passed by the Learned Civil Judge

(Senior Division) 2nd Court, Alipore in Ejectment Suit No. 353 of 2009

(subsequently renumbered as Ejectment Suit No. 6201 of 2014) has been

assailed by filing the present application under Article 227 of the

Constitution of India. Plaintiff/ opposite party herein being land lord filed

aforesaid suit for Ejectment of premises tenant against the petitioner herein.

The petitioners appeared in the said suit on 06.06.2014 and also filed their

written statement. The petitioner further submits that as per the advice of

the learned Advocate for the petitioner the petitioners were depositing rent

regularly before the Rent Controller at Alipore till January 2016. Thereafter

the petitioner changed their previous Advocate and only then they were

advised by the new advocate to deposit rent of June, 2014 to January 2016

before the court below and as per the said advice the petitioners again

deposited the total rent for the said period with statutory interest before the

court below and thereafter has been depositing the current rent up to date

before the court below. The petitioner had no intentional latches in

depositing the rent for the said period before the Rent Controller and for

which the petitioner also filed an application under section 5 of the

Limitation Act 1963 read with section 151 of the Code of Civil Procedure for

condonation of delay in filing the applications under section 7(1) and 7(2) of

the Act of 1997. The aforesaid applications filed under section 5 of the

limitation Act for condonation of delay along with applications under section

7(1) and 7(2) of West Bengal Premises Tenancy Act 1997 were heard by the

court below on 29.11.2019, but the court below rejected the

tenant/defendant's application under section 5 of the Limitation Act and

has been pleased to record that since the prayer for condonation of delay

has been rejected, as a consequence the petition under section 7(1) and 7(2)

which was filed beyond stipulated period, have also become redundant and

thereby rejected.

2. Mr. Tanmoy Mukherjee learned counsel appearing on behalf of the

petitioner submits that a common litigant totally goes by the advice and

guidelines of the learned advocate and in the instant case the non-deposit of

the rent before the learned court below by the defendant/petitioner was not

due to negligence or malafide intention of the petitioner but due to the

inadvertence/wrong advice or bonafide mistake on the part of the learned

advocate for which the petitioner cannot be made to suffer. The learned

court below in fact failed to appreciate that the petitioner had deposited rent

from May 2007 to July 2016 before the Rent Controller Kolkata and

thereafter before the Additional Rent Controller at Alipore. Learned court

below further failed to appreciate that the plaintiff had with an ulterior

motive to evict the defendant/petitioner, had refused to accept the rent

personally and also the rent which was sent through money order. Petitioner

thereafter is depositing rent before the court continuously. Accordingly the

court below ought to have considered that the bonafide mistake of counsel is

"sufficient cause" under section 5 of the Limitation Act of 1963 and as such

the delay in filing application under section 7(1) and 7(2) in the instant case

should have been condoned. In support of his contention the petitioner has

relied upon the Division Bench judgment of this court in Subrata

Mukherjee Vs. Bishal Das reported in 2002 (3) CHN (cal) 423 and another

unreported judgment of Co-ordinate Bench of this court in Bahadur Singh

Khaturia Vs. Smt. Purbi Basu being C.O. 2575 of 2022.

3. Mr. Anirudha Chatterjee learned counsel appearing on behalf of the

opposite party vehemently opposed the said prayer and contended that the

judgment passed in C.O. 2575 of 2022 is per incuriam and cannot be relied

in the present context. He further contended that admitted position in the

present case is that the defendant have appeared in the suit on 06.06.2014

and they have filed application under section 7(1) and 7(2) of the West

Bengal Premises Tenancy Act 1997 after about 1 ½ year i.e. on 13.01.2016

in gross violation of the mandatory time schedule which is within one month

from the date of service of summon upon the defendant, or where the

summon has not been served upon the defendant within one month from

the date of appearance. In this context Mr. Chatterjee has relied upon

Paragraph 21 of the judgment passed by the Apex Court in Bijay Kumar

Singh and others Vs. Amit Kumar Chamariya and another reported in

(2019) 10 SCC 660.

4. In Bijay Kumar Singh and others (Supra) the Apex Court was

pleased to observe in paragraph 21 as follows:-

"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 [B.P. Khemka (P) Ltd. v. Birendra Kumar Bhowmick, (1987) 2 SCC 407] . 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 circumscribed 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."

5. Learned Trial Court after considering the submission of the parties

came to a finding that on perusal of the record it appears that defendant

appeared in the suit by filing the Vokalatnama on06.06.2014 and they have

filed their written statement on 09.07.2015 and filed the application under

section 7(1) and 7(2) on 13.01.2016. He further observed that application

under section 5 of the Limitation Act would be allowed only when sufficient

reasons shown, but in this case defendant had hopelessly failed to prove

that there are sufficient reason for filing the petitions under section 7 (1)

and 7(2) after almost 1 ½ years from the date of appearance in the suit.

Learned court below further held that it is not acceptable that learned

advocate had given him wrong advice for which he deposited rent before the

Rent Controller, even after appearing in the suit through a lawyer. Learned

court further noticed even after appearing in the suit the defendant got

several opportunities for filing the petition but they failed to do so and

accordingly court below observed that the plea of ignorance of law is of no

excuse and when the statue is very specific about the time within which the

petition under section 7(1) and 7(2) of the Act of 1997 is to be filed then

there is no option before the court below but to follow the same and

accordingly the court below rejected all the aforesaid three applications

including application seeking condonation of delay.

6. Having considered facts and circumstances of the case it appears that

observation of the court below, in view of law laid down by Apex Court in the

judgment of Bijay Kumar Singh Case (Supra) cannot be said to be perverse

nor it can be said that the observation made by the court below that

ignorance of law is of no excuse is against the law.

7. In a catena of judgments it has been reiterated that jurisdiction under

Article 227 of the Constitution of India cannot be taken as a right of appeal

to the aggrieved party and the order of the Trial Court cannot be interfered

as a matter of routine . There is no dispute in the proposition of law that

section 7(1) and 7(2) provides that the tenant shall subject to the provisions

of the sub-section (2) of section 7 pay to the landlord or deposit with the civil

judge all arrears of rent calculated at the rate which it was last paid together

with interest at the rate of 10% per annum and the tenant shall thereafter

continue to pay to the landlord or deposits with the court month by month

by the 15th of each succeeding month a sum equivalent to the rent at that

rate. Now if the defendant fails to comply the said provision for whatever

reason including the reason that his Advocate's alleged wrong advice, if any,

for which the court declared such deposits as invalid deposit, such finding

cannot be said to be perverse.

8. The power of High Court under Article 227 of the Constitution of India

is supervisory in nature and it is intended to ensure that court below

confirms to law when he passed the order or in other words High Court

while exercising supervisory jurisdiction must confine itself to the limited

sphere that the order of the court below is in accordance with law i.e.

whether any illegality has been committed in passing the order impugned. It

is not permissible for the High Court in that exercise to come to a different

fact finding unless the finding arrived at by the court below on the facts is

so unreasonable that no court should have reached such a finding on the

materials available.

9. It is not in dispute here that defendant/tenant appeared in the suit on

06.06.2014 and filed application under Section 7(1) and 7(2) on 13.01.2016.

there was a delay of nearly 1 ½ years in filing the applications in

compliance with mandatory statutory provision as laid down in section 7. It

was argued by the counsel for the petitioners that it happened due to a

wrong advice given by previous counsel. Arguments are also addressed by

Mr. Mukherjee that High Court while exercising it's power of

superintendence under Article 227 of the constitution of India can, condone

in such case, where grave injustice has caused to the party.

10. In view of statutory mandate laid down in section 7 and following ratio

laid down by Apex Court in Bijay Kumar Sing (supra) case, I do not agree

with the submissions made by Mr. Mukherjee, firstly because the

justification given by the petitioners about wrong advice does not help the

case of the petitioners in view of nature of the case in hand. Secondly the

long delay occurred in compliance of section 7(1) & (2) of the Act is a serious

matter, which cannot be condoned in routine manner as compared to other

civil cases, otherwise the very purpose of provisions of the Act would be

frustrated. Accordingly I find no error in ultimate conclusion of the court

below as it does not reflect any perversity or overstepping of jurisdiction.

11. In such view of the matter the ultimate conclusion of the trial court

does not call for any interference, since by no means such observation can

be called as perverse and the statue has given him power to deal with the

applications under section 7 in accordance with the mandate of the statute

and for which it cannot be said that he has exceeded his jurisdiction.

12. In view of above C.O. 449 of 2019 is dismissed.

There will be no order as to the costs.

Urgent Photostat certified copy of this judgment, if applied for, be supplied

to the parties upon compliance with all requisite formalities.

(AJOY KUMAR MUKHERJEE, J.)