Calcutta High Court (Appellete Side)
Smt. Suvra Mitra vs Sri Arun Kumar Das & Anr on 4 December, 2023
Author: Shampa Sarkar
Bench: Shampa Sarkar
04.12.2023
Item no.12
CP/GB
C.O. No. 240 of 2023
Smt. Suvra Mitra
Vs.
Sri Arun Kumar Das & anr.
Mr. Abhilash Chatterjee
.......for the petitioner.
The petitioner is the defendant/tenant in
Ejectment Suit No. 130 of 2017. The petitioner is
aggrieved by the order dated September 21, 2022,
passed by the learned Civil Judge (Junior Division),
3rd Court, Alipore, South 24 Parganas. By the order
impugned, the learned court rejected an application
filed by the petitioner praying for modification of the
order dated November 12, 2018, under Section 151
of the Code of Civil Procedure. The petitioner prayed
that the order should be modified to the extent that
the question of default should be adjudicated by the
learned court.
The plaintiffs/opposite parties filed a written
objection to the said application, inter alia, stating
that the order dated November 12, 2018 by which
the application under Section 7(2) of the West Bengal
Premises Tenancy Act, 1997 (hereinafter referred to
as 'the said Act') was rejected, had been challenged
by the petitioner in a revision before the learned
Additional District Judge, 11th Court at Alipore. The
said revisional application was dismissed with liberty
to the petitioner to approach the correct forum.
Instead of challenging the order dated November 12,
2018 passed under Section 7(2) of the said Act before
this court, the petitioner filed an application under
Section 151 of the Code of Civil Procedure, praying
for modification of the order dated November 12,
2018.
Upon hearing the learned advocate for the
respective parties, the learned court held that the
proper course of action for the petitioner would have
been to challenge the order passed on November 12,
2018, before the appropriate forum. Secondly, the
application suffered from suppression. The fact that
the petitioner had approached the revisional court
under Section 115A of the Code of Civil Procedure
and an order was passed therein, rejecting such
application, had been suppressed by the petitioner in
the application for modification of the order.
The Court was of the view that the order dated
November 12, 2018 ought to have been challenged
before the appropriate forum by way of revision,
which was not done. The modification application
was filed as an afterthought. The modification
application was thus, rejected.
Mr. Chatterjee, learned advocate for the
petitioner submits that the present case was a
changed brief and the erstwhile learned advocate did
not conduct the case properly. Further, the issue of
default ought to have been decided by the learned
court below, while adjudicating the application under
Section 7(2) of the said Act. Instead of deciding
whether arrear rents were payable, the trial judge
rejected the application under Section 7(2) of the said
Act, in a mechanical manner. Reliance has been
placed on a decision of a learned coordinate Bench of
this Court in the matter of Sunil Kumar Mishra
versus Shatrughna Prasad Singh reported in
2015 ICC (4) CAL 668. Mr. Chatterjee vehemently
urges the Court to follow the said judgment and
direct re-adjudication of the application for
modification of the order dated November 12, 2018.
Reliance has been placed on paragraphs 19 to 22 of
the said decision. The petitioner also relies on the
decision of this Court in the matter of Lal Bahadur
Singh versus Sri Amit Kumar Chamaria & Anr.
reported in 2018 CHN (CAL) 689
The facts of the case, in a nutshell are that the
opposite parties filed a suit for eviction under Section
6 of the West Bengal Premises Tenancy Act, 1997.
The plaintiffs averred that the tenancy was
determined by a notice to quit and the plaintiffs were
entitled to a decree of recovery of khas possession
and mesne profit. That the defendant was in
wrongful possession of the premises on and from
May 1, 2017.
The defendant/petitioner filed a written
statement and contested the proceedings. The
defendant also filed applications under Sections 7(1)
and 7(2) of the said Act.
In the application under Section 7(1) of the
said Act, it was categorically stated that the
defendant/petitioner had already filed an application
under Section 7(2), praying for suspension of the rent
till the filtered water connection was restored. That
the defendant/petitioner intended to deposit the
monthly rent only after the application under Section
7(2) of the said Act was disposed of. Further, it was
contended that rents payable from April 2017 and
May 2017, had been deposited before the learned
Rent Controller. The petitioner prayed for permission
to deposit the rent from June 2017, month by month
every month, but only after the application under
Section 7(2) of the said Act was disposed of. The
application under Section 7(2) of the said Act was
filed before the learned court below, with a prayer to
allow the petitioner to deposit the arrear rent, till the
filtered water connection was restored by the
landlord.
The said application under Section 7(2) was
rejected by the learned court below on the ground
that a prayer of such nature could not be allowed in
the said application, as the law under Section 7 of
the West Bengal Premises Tenancy Act mandated
that the defendant could seek protection from
eviction, only upon compliance of the provisions of
Sections 7(1) and 7(2) of the said Act.
According to the learned trial court, neither
any dispute with regard to the relationship between
landlord and tenant nor any dispute with regard to
the amount of rent, had been raised.
The said order was subject to revision by the
High Court, but the petitioner, in spite of having
been granted that liberty by the learned Additional
District Judge, 11th Court at Alipore, in Civil Revision
No.01 of 2019, by order dated March 9, 2021, did not
avail of such procedure. Instead, an application
under Section 151 of the Code of Civil Procedure was
filed on April 7, 2021 for modification of the order by
which the application under Section 7(2) of the said
Act was rejected. Thereafter, the petitioner filed an
application for modification of the order dated
November 12, 2018.
This Court finds that in the application under
Section 7(1) of the said Act, the petitioner stated that
rent had been deposited in the office of learned Rent
Controller and the petitioner was liable to pay rent
from June 2017, subject to the disposal of the
application under Section 7(2). In the application
under Section 7(2) of the said Act, the petitioner
categorically stated that there were no arrears and
the petitioner should be permitted not to deposit the
current rent before the water connection was
restored. Neither did the petitioner raise any dispute
with regard to the relationship of landlord and tenant
nor did the petitioner dispute the rate of rent. Rather,
it was the contention of the petitioner that the
current rent was not payable by the petitioner, until
restoration of the filtered water supply. There is not a
single averment that the rate of rent was disputed
and the arrears payable had to be decided by the
court. The petitioner had also not averred whether
the admitted arrears had been deposited.
In the decision of Bijay Kumar Singh & Ors.
versus Amit Kumar Chamariya & Anr. reported
in (2019) 10 SCC 660, the Hon'ble Apex Court held
as follows:-
19. Sub section (1) of Section 7 of the Act
relieves the tenant from the ejectment on the
ground of non-payment of arrears of rent if he
pays to the landlord or deposits it with the
Civil Judge all arrears of rent, calculated at
the rate at which it was last paid and up to
the end of the month previous to that in
which the payment is made together with
interest at the rate of ten per cent per annum.
Such payment or deposit shall be made
within one month of the service of summons
on the tenant or, where he appears in the suit
without the summons being served upon him,
within one month of his appearance.
20. Therefore, sub section (1) deals with the
payment of arrears of rent when there is no
dispute about the rate of rent or the period of
arrears of rent. Sub section (2) of the Act
comes into play if there is dispute as to the
amount of rent including the period of arrears
payable by the tenant. In that situation, the
tenant is obliged to apply within time as
specified in sub section (1) that is within one
month of the receipt of summons or within
one month of appearance before the court to
deposit with the Civil Judge the amount
admitted by him to be due. The tenant is also
required to file an application for
determination of the rent payable. Such
deposit is not to be accepted, unless it is
accompanied by an application for
determination of rent payable. Therefore, sub
section (2) of the Act requires two things,
deposit of arrears of rent at the rate admitted
to be due by the tenant along with an
application for determination of the rent
payable. If the two conditions are satisfied
then only the Court having regard to the rate
at which rent was last paid and for which
tenant is in default, may make an order
specifying the amount due. After such a
determination the tenant is granted one
month's time to pay to the landlord the
amount which was specified. The proviso of
the Act, limits the discretion of the court to
extend the time for deposit of arrears of rent.
The extension can be provided once and not
exceeding two months.
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 (2A) and
(2B) which was being examined by this Court
in B.P. Khemka. Sub sections (2A) and (2B) of
Section 17 of 1956 Act confer unfettered
power on the court to extend the period of
deposit of rent, which is circumscribed by the
proviso of sub sections (2) and (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 pre-condition 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."
Thus, it was incumbent on the petitioner to
deposit the admitted arrear rent, if any, along with
10% statutory deposit, which was not done. Rather,
it was the petitioner's contention that there were no
arrears. Secondly, in the application under Section
7(2), the petitioner ought to have raised a dispute
with regard to the rate of rent/arrear rent/default, if
any, by urging the court to decide such issue. Such
issue was not raised. Instead, the petitioner prayed
for an order declaring that the petitioner was not
required to pay the current rent, till the filtered water
supply was restored.
Thus, the Court rightly rejected the application
under Section 7(2), inter alia, holding that the
petitioner's application was misconceived. In terms of
the provisions of Section 7 of the said Act, the
compliance of Section 7(1) and 7(2) were mandatory
for the tenant to seek protection from eviction in a
suit filed under Section 6 of the said Act. By filing the
modification application after three years from
rejection of the application under Section 7(2), the
petitioner cannot seek determination of arrear rents,
contrary to the pleadings, as a specific stand was
taken that there were no arrears. Moreover, the
compliance of Section 7(1)(c) with regard to payment
of current rent, is also not available with the records.
The petitioner/tenant is now urging the court
to decide the question of default and pass necessary
orders. It has been judicially settled that a belated
application for determination of arrears of rent
payable by the tenant cannot be entertained.
A Division Bench in the Calcutta Gujarati
Education Society vs Sri Ajit Narayan Kapoor
decided in C.O. 175 of 2017, answered a reference
in view of conflicting decisions and held that Section
5 of the Limitation Act, could not be applied to
condone delayed deposit.
Although, the modification application has
been couched as one for modification of the order of
rejection of the application under Section 7 (2), this
Court is of the view that the question of modification
of the order would not arise in this case, as in that
event, the court would be asked to determine a
dispute to be decided in an application under Section
7(2) of the said Act which ought to have been filed
within the time prescribed by law with necessary
pleadings, upon deposit of the admitted arrears and
with 10 % statutory interest.
The decision in Sunil Kumar Mishra (supra)
will not help the petitioner, inasmuch as, in the said
case that the court failed to take into account certain
challans deposited by the defendant/tenant and held
that the defendant was a defaulter. By an application
under Section 151 of the Code of Civil Procedure, a
rectification was sought. The application was rejected
and the High Court directed the trial court to look
into those challans and decide the application for
rectification. The decision in Lal Bahadur Singh
(supra) will also not apply in this case, in view of the
decision in Amit Kumar Chamariya (supra).
The application for modification talks about
the failure on the part of the learned court below to
determine the default. Whereas, in the application
itself, there is not a single averment that the court
was required to determine the arrear rent or that the
petitioner had disputed either the relationship
between the parties or the amount of rent. Thus, the
question of modification of the order would not arise.
Under such circumstances, the order
impugned does not call for any interference.
Accordingly, the revisional application is
dismissed.
However, there will be no order as to costs.
All the parties are directed to act on the basis
of the server copy of this order.
(Shampa Sarkar, J.)
