Calcutta High Court (Appellete Side)
Ludhiana Calcutta Road Ways vs Sri Bimal Kumar Bazaz on 28 February, 2023
28.02.
g.b. 2023 C. O. 1264 of 2020
Ct. No.652
15
Ludhiana Calcutta Road Ways
Vs
Sri Bimal Kumar Bazaz
Mr. Probal Kumar Mukherjee, Sr. Advocae
Mr. Gupta Nath Prasad
.......For the Petitioner
Mr. Rupak Ghosh
Mr. Pradip Kr. Sarawagi
......For the Opposite Party
Being aggrieved by and dissatisfied with the
impugned order dated 18.01.2020 passed by the
learned Civil Judge (Senior Division), Sealdah in
Ejectment Suit No. 3 of 2019, the present application
under Article 227 of the Constitution of India has
been preferred.
The main ground for preferring this
application is, court below while disposing petitioner's
application under section 7(2) of the Act was pleased
to held that the defendant is a defaulter in payment of
monthly rent though defendant has paid the entire
arrear rent at the time of filing application under
Section 7(2) of the West Bengal Premises Tenancy Act,
1997.
Petitioner herein/defendant is a monthly
tenant under opposite party/plaintiff in respect of
suit premises at a monthly rent of Rs. 6,483/-
payable according to English calendar month.
2
Petitioner states that the plaintiff/opposite
party had previously filed one eviction suit being
Ejectment Suit No. 7 of 2015 in the court of learned
Civil Judge (Senior Division), Sealdah against
defendant/petitioner on the ground of default in
payment of rent. On receipt of writ of summons and
copy of plaint in that suit, the defendant entered
appearance in the said suit and filed applications
under Section 7(1) and 7(2) of the said Act of 1997
and deposited arrear monthly rent in the said suit up
to the month of May, 2018. Both the petitions of the
petitioner herein were allowed and it was held by the
learned court that the defendant was not a defaulter
in payment of rent. After contested hearing the said
suit was ultimately dismissed on contest but without
any order as to costs by judgement and decree dated
07.05.2018
. After dismissal of the said suit the
defendant requested the plaintiff to accept the
monthly rent of Rs.6,483 for the month of June, 2018
but the plaintiff declined to accept the said rent on
the plea that he was proposing to file appeal against
the said Judgement and Decree dated 07.05.2018.
On hearing so, the defendant filed a caveat before this
court and continued depositing the said monthly rent
of Rs.6,483/- in the said suit before the learned
court and has deposited such rent upto the month of
October, 2018.
The petitioner further submits that since more
than six months had passed away from the date of
Judgement and Decree dated 07.05.2018 passed in
the said Ejectment Suit No. 7 of 2015, the plaintiff did
not file any appeal against the said Judgment and
Decree, the defendant/ petitioner herein through its
constituted attorney tendered the said monthly rent
for the month of November, 2018 on 14.11.2018 to
the above named plaintiff personally but he refused
to receive the same for the reason best known to him.
As such the defendant sent the rent for the month of
November, 2018 through money order and the money
order was returned to the defendant on 07.12.2018
with the remarks "refused". The defendant states
that in the meantime the defendant had remitted the
monthly rent for the month of December, 2018 to the
plaintiff by money order again but the plaintiff
refused to accept the same. In view of refusal to
accept the rent sent through money order, the
tenant/defendant took steps for depositing the
monthly rent in the office of the learned Rent
Controller but the Rent Controller did not give
permission to the defendant to deposit the rent for the
reason that arrear rent for the months of June, 2018
to October, 2018 had not been personally tendered
and remitted to the landlord and opined that deposits
of monthly rent made by the defendant in the said
suit from the month of May, 2018 till the month of
October, 2018 are invalid deposits.
Subsequently, the plaintiff/ landlord had
filed the present second Ejectment Suit where
petitioner as defendant had filed petition under
Section 7(2) of the said Act of 1997. Plaintiff did not
file any written objection to the said petition filed by
defendant under section 7(2) and said petition was
heard by the court below and the court below was
pleased to held that the tenant/ defendant is not a
defaulter in payment of rent for the month of June
2018 to January, 2019 but no previous rent is due
and thus the petition under Section 7(2) of the said
Act is disposed of on contest.
The petitioner submits that learned court
below while passing the impugned order has
completely disregarded the deposit of monthly rent
made by the defendant for the month of June 2018
till the month of October, 2018 in earlier Ejectment
Suit No. 7 of 2015 as noted and there is no room for
doubt that the defendant had not defaulted in
payment of rent for the months that is from June
2018 to January, 2019 and there is no arrear rent at
present payable to the defendant. Aforesaid
observation of the trial court that the defendant is a
defaulter, though no previous rent is due has caused
the petitioner aggrieved to prefer this application. The
petitioner has specifically pleaded that learned judge
while making said observation did not consider the
refusal of the plaintiff to accept the monthly rent for
the relevant period.
Learned counsel appearing on behalf of the
opposite party submits that the court below was quite
justified in making the said observation in view of the
proviso as laid down in Section 7(4) of the West
Bengal Premises Tenancy Act, 1997 which provides
that the tenant shall not be entitled to get protection
against eviction under Section 7(4) of the said Act if
having obtained such relief once in respect of the
premises, he again makes default within a period of
12 months.
Considered submissions made by both the
parties.
The present application under Article 227 of
the Constitution of India has arisen out of
applications under Section 7(1) and 7(2) of the West
Bengal Premises Tenancy Act, 1997 which deals with
mandatory deposit of admitted area rent at the time of
appearance with the concerned Civil Judge calculated
at which it was last paid and up to the end of month
of previous to that in which the payment is made,
together with interest @ 10 percent per annum. There
is no obligation under section 7(1) on the civil judge to
adjudicate or determine as to the correctness of the
amount deposited by way of rent or to make any
observation about correctness in respect thereof.
Such an order is purely a formal order without any
adjudication as to the validity of the deposit, which
the tenant makes at his risk.
Court below rightly observed that the word
"again" in proviso to 7(4) of the Act of 1997 means
another time. So the mischief of the proviso will be
attracted when the tenant has again made default at
least four months for the second time. In the present
case such issue has been kept open for adjudication
by the court below at the time of final adjudication of
suit. Accordingly I do not find any merit in such
application. I made it clear that I have not gone into
the correctness or validly of the deposits of rent in
question by the petitioner, which shall be kept open
for adjudication, without being influenced by any
observation made herein.
C.O. 1264 of 2020 is accordingly disposed
of without interfering the order impugned .
Urgent photostat certified copy of this
order, if applied for, be given to the parties upon
compliance of all requisite formalities.
(Ajoy Kumar Mukherjee, J.)
