Calcutta High Court (Appellete Side)
Smt. Anju Jain vs Ram Dev Sah on 18 April, 2019
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
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In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No. 949 of 2019
Smt. Anju Jain
Vs.
Ram Dev Sah
For the petitioner : Mr. Arup Krishna Das,
Mr. Asit Kumar Mishra,
Mr. Indrajit Chatterjee
For the opposite party : Mr. Manas Kr. Ghosh,
Ms. Susmita Dey (Basu)
Hearing concluded on : 08.04.2019
Judgment on : 18.04.2019
Sabyasachi Bhattacharyya, J.:‐
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1.The present challenge is at the behest of the plaintiff in a suit for eviction under the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as "the 1997 Act"). By virtue of the impugned order, the trial court allowed an application filed by the opposite party‐tenant, after more than five months from the passing of an order under Section 7(2) of the 1997 Act, praying for being allowed to deposit the entire amount as directed by the trial court under Section 7(2) of the 1997 Act and for depositing current amount equivalent to rent.
2. The order under Section 7(2) of the 1997 Act was passed on April 12, 2018, holding that the defendant/opposite party was a defaulter in payment of rent for 87 months at the rate of Rs.2,000/‐ per month and total arrears were calculated to be Rs.1,74,000/‐ along with statutory interest, which was directed to be deposited within one month from April 12, 2018.
3. On May 8, 2018, the opposite party filed an application under Section 151 of the Code of Civil Procedure for modification of the order dated April 12, 2018, seeking to adjust short deposits of rent made in court and for liberty to withdraw certain rent control deposits made by the opposite party.
4. The plaintiff/petitioner filed a written objection to the said application for modification on June 20, 2018.
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5. The trial court rejected the application for modification on July 16, 2018.
6. On September 20, 2018, the defendant/opposite party filed another application under Section 151 of the Code of Civil Procedure, for being allowed to deposit the amount directed by the trial court under Section 7(2) of the 1997 Act on April 12, 2018, and thereafter to make current deposits.
7. By the impugned order dated December 1, 2018, the last‐mentioned application was allowed, permitting the defendant/opposite party to deposit the said arrear of amount along with statutory interest till that date, within 30 days from the date of the order, failing which the defence of the defendant against delivery of possession was held to be liable for being struck out.
8. Learned counsel for the petitioner argues that it is well‐settled that the outer limit for making an application for condonation of delay in depositing the amount as directed under Section 7(2) of the 1997 Act, as well as for depositing such amount, is three months from the date of the order under Section 7(2) of the 1997 Act. In the present case, however, the opposite party filed the application for depositing such amount more than five months after the order under Section 7(2) was passed. As such, it is argued, the said application was not maintainable under the proviso to Section 7(2) of the 1997 Act and as such ought to have been dismissed by the trial court.
9. Learned counsel appearing for the defendant/opposite party, at the outset, argues that the amount, as directed by the impugned order, has been deposited within 4 fifteen days from such order, which goes on to show the bona fides of the opposite party.
10. It is argued that since an application under Section 151 of the Code of Civil Procedure was pending for modification of the order dated April 12, 2018, passed under Section 7(2) of the 1997 Act, the opposite party could not deposit the arrears before, since otherwise the rights and contentions of the opposite party in respect of the modification application would be adversely affected.
11. It is thus argued that the trial court was justified in allowing the opposite party to deposit the amount directed under Section 7(2) of the 1997 Act.
12. It is further argued that the discretion exercised by the trial court ought not to be interfered with under Article 227 of the Constitution of India.
13. For deciding the matter in issue, a reading of Section 7 of the West Bengal Premises Tenancy Act, 1997 is necessary. The language of the said section is set out below:
"West Bengal Premises Tenancy Act, 1997:‐ Section 7. When a tenant can get the benefit of protection against eviction. - (1) (a) On a suit being instituted by the landlord for eviction on any of the grounds referred to in section 6, the tenant shall, subject to the provisions of sub‐section (2) of this section, pay to the landlord or deposit 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.5
(b) 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.
(c) The tenant shall thereafter continue to pay to the landlord or deposit with the Civil Judge month by month by the 15th of each succeeding month, a sum equivalent to the rent at that rate.
(2) If in any suit referred to in sub‐section (1), there is any dispute as to the amount of the rent payable by the tenant, the tenant shall, within the time specified in that sub‐ section, deposit with the Civil Judge the amount admitted by him to be due from him together with an application for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. On receipt of the application, the Civil Judge shall, having regard to the rate at which rent was last paid and the period for which default may have been made by the tenant, make, as soon as possible within a period not exceeding one year, an order specifying the amount, if any, due from the tenant and, thereupon, the tenant shall, within one month of the date of such order, pay to the landlord the amount so specified in the order.
Provided that having regard to the circumstances of the case, an extension of time may be granted by the Civil Judge only once and the period of such extension shall not exceed two months.
(3) If the tenant fails to deposit or pay any amount referred to in sub‐section (1) or sub‐section (2) within the time specified therein or within such extended time as may be granted, the Civil Judge shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit.
(4) If the tenant makes deposit or payment as required by sub‐section (1) or sub‐ section (2), no order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant, shall be made by the Civil Judge, but he may allow such cost as he may deem fit to the landlord:
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Provided that the tenant shall not be entitled to any relief under this sub‐section if, having obtained such relief once in respect of the premises, he again makes default in payment of rent for four months within a period of twelve months or for three successive rental periods where rent is not payable monthly."
14. The proviso to Section 7(2) of the 1997 Act stipulates that the Civil Judge is empowered, having regard to the circumstances of the case, to grant only one extension of time, and that the period of such extension shall not exceed two months.
15. In default, all such deposits, as contemplated in sub‐section (1) or (2) of Section 7, the consequences under Section 7(3) of the 1997 Act follows in as much as the defence of the tenant against delivery of possession would be struck out and the trial Judge shall proceed with the hearing of the suit.
16. It has been well‐settled by this court and the Supreme Court that the time‐limit for deposit of the amount directed under Section 7(2) cannot be stretched, even on extension, beyond three months from the date of passing of the said order. The said period is comprised of two components: the first period of one month commences from the date of the order under Section 7(2) and the second, comprised of two months commences upon the expiry of the aforesaid one month after the order under Section 7(2) of the 1997 Act.
17. However, in the present case, the opposite party admittedly filed the application for being allowed to deposit the amount as directed under Section 7(2) after about five months from the date of such order.
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18. The context of the present case, which has a special feature, has to be considered to construe the date of passing of the order under Section 7(2) of the 1997 Act. The special feature is, that the tenant/opposite party had taken out an application under Section 151 of the Code of Civil Procedure for modification of the order passed under Section 7(2) of the 1997 Act dated April 12, 2018, on May 8, 2018 that is within one month from the date of order under Section 7(2).
19. Ultimately the said application was rejected by the trial court on July 16, 2018. The opposite party thereafter filed the application for condonation of delay on September 20, 2018, which was about two months and four days after the rejection of the modification application.
20. The application for being allowed to deposit the Section 7(2) amount was ultimately allowed on December 1, 2018 and the opposite party deposited the amount so permitted within fifteen days thereafter.
21. Since the order under Section 7(2) of the 1997 Act was subjected to a modification application, which was sub‐judice before being rejected on July 16, 2018, the order under Section 7(2) is to be deemed to have merged with such rejection. Hence, the effective and operative date of the order under Section 7(2) of the 1997 Act was not the original date, that is, April 12, 2018, but the date on which the modification application was rejected, that is, July 16, 2018.
22. Time, as such, for depositing the amount started to run effectively from July 16, 2018 and froze again on September 20, 2018, when the opposite party filed an application under Section 151 of the Code of Civil Procedure for being permitted to deposit the 8 amount under Section 7(2), which had merged with the order dated July 16, 2018. The said application for being permitted to deposit was allowed on December 1, 2018 and was sub‐judice till then. The opposite party deposited the amount as directed within fifteen days thereafter. Therefore, the total time effectively taken by the petitioner was two months and four days (from July 16, 2018 to September 20, 2018) and thereafter fifteen days (from December 1, 2018). Hence, the total period taken for such deposit was two months and nineteen days from July 16, 2018, which was the effective date of operation of the order under Section 7(2).
23. Hence, the deposit was ultimately made within outer limit of three months from the date of order under Section 7(2) of the 1997 Act.
24. As such, the trial court was fully within its jurisdiction to allow the said application and permit the opposite party tenant to deposit the amount‐in‐question.
25. As regards the discretion exercised by the trial court is concerned, since the court below took into account the reasons shown by the opposite party in his application, this court is not inclined to interfere with such judicial exercise of discretion.
26. Accordingly, C.O. No.949 of 2019 is dismissed on contest, thereby affirming the impugned order.
27. There will be no order as to costs.
28. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
9( Sabyasachi Bhattacharyya, J. )