Pradip Kumar Mukherjee vs Binay Chowdhury & Ors
2023 Latest Caselaw 3520 Cal

18.5.2023
     8
Ct. no. 652
    sb
                                 C.O. 793 of 2019


                               Pradip Kumar Mukherjee
                                       Vs.
                                Binay Chowdhury & Ors.


                    Ms. Tarak Nath Halder
                    Mr. Raja Biswas
                    Mr. Abhijit Sarkar         ...for the Petitioner

                    Mr. Prosenjit Mukherjee
                    Mr. Saptarshi Chakraborty
                    Mr. Aslam Parvez      ...for the Opposite parties



                    Being aggrieved and dissatisfied with the order

              dated 14.1.2019 passed by learned Civil Judge (Junior

              Division), 5th Court, Alipore, South 24 parganas in

              Ejectment Suit no. 1 of 2015, the present application

              under Article 227 of the Constitution of India has been

              preferred.

                    The petitioner contended that the plaintiff duly

              instituted aforesaid suit against the defendant/opposite

              parties for recovery of Khas possession along with other

              reliefs. The defendant/opposite parties appeared in the

              said suit and filed applications under Section 7(1) & 7(2)

              of West Bengal Premises Tenancy Act (Act of 1997) before

              the trial court. The trial court after hearing the said

              applications under Section 7(1) & 7(2) of the Act of 1997

              was pleased to dispose of the said application under

              Section 7(1) and 7(2)   of the Act of 1997 on 4.5.2016
                   2




wherein the trial court held that the defendants are

defaulter in payment of rent for total 11 months and is

liable to pay arrear rent along with statutory interest for

the said months, a total amount of Rs. 15,534/- and

directed to deposit the said amount by 6.5.2016.

positively.

        Being   aggrieved      by     the     said    order,   the

defendant/opposite          parties     preferred       revisional

application before this court being C.O. 2194 of 2016 but

this court while disposing of the said application, was

pleased to observe that there seems to be no ground for

interference with the findings of the trial judge arrived at

while   passing       the   impugned        order    whereby   the

application under Section 7(2) of the Act of 1997 was

disposed of and that the defendant/opposite parties were

directed to pay arrear rent in accordance with law. It was

however, observed by this court that the trial court dealt

with the point urged by the petitioner in details and

arrived at a conclusion that all deposits made with the

controller for the period subsequent to October, 2013

were bad deposits and as such this court did not incline

to interfere with the said factual findings of the trial court

arrived at upon just consideration of the materials on

record and as a result, the said revisional application was

dismissed.

        However, subsequently, the defendant/opposite

parties filed an application under Section 151 of the Code
                    3




of Civil Procedure before the court below for acceptance of

the deposited arrear rent on 22.12.2017 with a prayer for

recalling the aforesaid order dated 04.05.2016. Before

that, the plaintiff filed an application under Section 7(3)

of the Act of 1997 praying for striking out the defence on

25.01.2018

.

Learned court below heard both the applications

i.e. defendant's application under Section 151 of the Code

dated 6.3.2018 and the plaintiff's application under

Section 7(3) of the Act of 1997 dated 25.1.2018 and

passed the impugned order by which the court below

allowed the defendant's application under Section 151 of

the Code and rejected the plaintiff's application under

Section 7(3) of the Act of 1997.

Being aggrieved by the said order, learned counsel

for the petitioner submits that the impugned order is

perverse and the court below acted illegally by allowing

the said application under Section 151 of the Code.

Learned court below failed to appreciate that there is no

scope for condoning the delay as the direction was clear

and specific and there was no stay order granted by this

court and as such there was no impediment for the

defendants to deposit the rent month by month.

Accordingly, the petitioner has prayed for setting aside

the impugned order.

In this context he relied upon judgments of

Satyadhyan Ghosal and others vs. Smt. Deorajin

Debi and another reported in AIR 1960 SC 941 and

another judgment of the Apex court passed in Bijay

Kumar Singh & Others vs. Amit Kumar Chamariya

and others being Civil Appeal no. 7849 of 2019 with

Civil Appeal no. 7850 of 2019 and another judgment of

this court passed in Smt. Bina Devi Binani vs. Ramesh

Kumar Gupta reported in (2015) 3 CAL LT 384 (HC).

Learned counsel for the opposite parties submits

that the application under Section 7(2) of the Act of 1997

was disposed of twice on 29.01.2016 and 4.5.2016 and

on the first occasion i.e. on 29.01.2016, the said petition

was disposed of under presumption that the same was

not filed within time as prescribed by law and as such

after determination of defaulting period, the same left

open for another date or clarification and on the date of

clarification i.e. on 4.5.2016 the order regarding

application under Section 7(2) of the Act of 1997 was

passed. Furthermore, granting only two days time is also

to some extent seems to be not reasonable. Having regard

to the circumstances of the case, the opposite parties

prayed for extension of time. He further submits that law

has not been enacted to cause suffering of the litigants

but to aid and assist them if they are just and proper. He

further submits that one should not suffer for causes of

the court. Furthermore, from the facts and circumstances

of the case, it is apparent that there is no intentional

latches on the part of the defendants in making the

aforesaid deposit and as such the court below was

justified and passed a reasoned order, which does not call

for any interference. In this context, judgment of a

Division Bench of this court passed in C.O. 3443 of 2010

with C.O. 3054 of 2011 has been referred and contended

that the time limit for demand or deposit of admitted

amount of rent as mentioned in Section 7(1) and 7(2) of

the Act of 1997 is not mandatory. Relying upon said

judgment he further contended that legislature

sometimes uses the word "shall" that does not make the

provision mandatory and sometimes it means directory

and as such the present revisional application is liable to

be dismissed.

I have considered the submissions made by both

the parties. On perusal of the order dated 4.5.2016, it

appears that the trial court duly considered the

defendant's application under Section 7(1) and 7(2) of the

Act of 1997 and found that the landlord-tenant

relationship herein is not in dispute. After considering the

contention and the documents including money order

receipt and rent control challans, the court below came to

a conclusion that since November, 2013, the defendant is

a defaulter for the payment of rent in respect of suit

property. Accordingly, the court below directed to deposit

the arrear rent for 17 months which is amounting to Rs.

15,534/- and by that order, a specific direction was also

made that the defendants must deposit the current rent

regularly before the court till the disposal of the same.

However, the defendants/opposite parties without

complying said order regarding deposit of rent challenged

the said order and preferred the aforesaid revisional

application before this court being C.O. 2194 of 2016. It

appears that in the said revisional application vide order

dated 24.7.2019, this court had clearly held that the

pendency of the application will not stand in the way of

the trial court expeditiously disposing of the matter before

it. Accordingly, this court has not granted any stay in

respect of the proceeding pending before the court below.

However, the defendant/opposite parties choose not to

make deposit before the court below in terms of that

specific order dated 4.5.2016 and waited till the disposal

of their revisional application.

However, ultimately the said revisional application

was dismissed with the observation as stated above, and

the order dated 4.5.2016, passed by the court below, was

affirmed by this court. Accordingly the court below did

not have any scope to recall or review the said order dated

04.05.2016 which was affirmed by this court in the said

revisional application.

Law in this context is well settled in Bijay Kumar

Singh & others Vs. Amit Kumar Chamariya and

another reported in (2019) 10 SCC 660 and paragraph

21 of said judgment runs 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.

In this context, it is also to be mentioned that

Section 7(2) of the Act of 1997 is specific and mandatory.

It provides that if in any suit, there is any dispute as to

the amount of rent payable by the tenant, the tenant

shall within the time specified, shall deposit the amount

admitted by him to be due together with an application

for determination of the rent payable. It is further

provided in the said section that having regard to the

circumstances of the case an extension of time may be

granted by the court only once and the period of such

extension shall not exceed two months.

Though learned counsel for the opposite parties

referred Section 40 of the Act of 1997 and contended that

the provision of the Limitation Act shall apply to all

proceedings under the said Act including the proceeding

is laid down under the provision of Section 7 of the Act of

1997, but I find no substance in the said contention

made by opposite parties in view of observation made by

Apex Court in Bijay Kumar Singh's case (supra).

In view of aforesaid discussion, it is quite clear that

once this court has affirmed the order passed by the

court below dated 4.5.2016, the subsequent order i.e. the

impugned order is clearly barred by res judicata and the

court below exceeded it's jurisdiction in making review of

the order which has been affirmed by this court.

Furthermore, even though there was no order of stay,

granted by the High Court, the defendant has defaulted in

payment of rent more than once violating the mandatory

proviso to Section 7(2) of the Act of 1997 and as such the

order impugned is perverse and is liable to be set aside.

It is also to be mentioned, when the defendant has

defaulted in making payment of rent in violation of the

provision of Section 7(1) and 7(2) of the Act of 1997, and

has failed to make deposit before the court within the

time specified and not entitled to be protected by proviso

to section 7(2) and not even complied section 7(1) through

there was no impedement to deposit in terms of order, the

provision under Section 7(3) of the Act of 1997 attracts

automatically even in the absence of any formal

application made by the plaintiff. However, in the present

case, the plaintiff made application under Section 7(3) of

the Act of 1997 before filing of the defendant's application

under Section 151 of the Code.

In view of above, C.O. 793 of 2019 is allowed. The

order impugned dated 14.1.2019 is hereby set aside. The

plaintiff/petitioner's application under Section 7(3) of the

Act of 1997 is allowed and the defendants defence against

delivery of possession is struck out. The court below is

directed to proceed with the hearing of the suit and shall

make every endeavour for expeditious disposal of the suit

and to conclude the entire proceeding of the suit

preferably within a period of ten months from the date of

communication of the order.

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.)