Calcutta High Court (Appellete Side)
Samir Natwarlal Lathia & Anr vs Debajyoti Chatterjee on 19 February, 2019
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
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19.02.2019
Item No.33
Court No.16
AP
SAT 360 of 2018
With
CAN 7006 of 2018
Samir Natwarlal Lathia & Anr.
Vs.
Debajyoti Chatterjee
Mr. P. Ghosh, Advocate
Mr. Maniklal Podder, Advocate
... ... For the Appellants
Mr. Sanjoy Kumar Ghosh, Advocate
... ... For the Respondent
No question of any substance or importance or relevance is raised in the proposed second appeal. The second appeal is proposed against a judgment and order dated June 13, 2018 by which a decree for eviction has been upheld.
Apart from the fact that the first appeal judgment itself indicates that no case against default had been made out by the appellants, the admitted position is such that there is no question of the second appeal being entertained.
It is the admitted position that despite the suit for eviction being filed in a case governed by the West Bengal Premises Tenancy Act, 1997, the appellants herein did not attempt to deposit the amount claimed to be in default nor did 2 the appellants herein apply under Section 7(2) of the Act of 1997 to contest the quantum of default as may have been alleged by the plaintiff.
The sole contention of the appellants appears to be that if there is default in making payment of any amount liable to be paid under Section 7(1) of the Act of 1997 or of any other sum under Section 7(2) thereof, the Suit Court may only strike out the defence, but can do no more. According to the appellants the striking out of the defence has to be a formal order, whereupon the defendant has a chance to make good the deficit before the suit proceeds to the final stage.
Clearly, the scheme of Section 7 of the Act of 1997 does not conceive of such a situation. It also does not appear that any formal order requires to be passed for striking out the defence. In this case, the Trial Court proceeded to decree the suit thereafter; and such course of action is neither illegal nor irregular.
Even the protection under Section 7(4) of the Act of 1997 may not be available to a tenant unless the tenant makes the deposit or payment as required by sub-section (1) or sub- section (2) of Section 7 of the Act. Section 7(4) of the Act of 1997 worded as follows:
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"(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:
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."
The delivery of possession of the suit premises on the ground of default in payment of rent cannot be directed, as Section 7(4) of the Act of 1997 instructs, if the tenant deposits or pays as required under sub-section (1) or sub-section (2) of Section 7 of the Act. If the tenant does not make any deposit or payment at all, as is the admitted case here, the protection under Section 7(4) of the Act does not come into play. Thus, the contention of the appellants here, that in the Trial Court failing to pass an order striking out the defence there was any grave prejudice occasioned to the appellants, cannot be accepted. The appellants made no attempt to make good the deficit or even tender the occupation charges during the 4 pendency of the suit. The appellants did not question the rate of rent as claimed by the plaintiff.
For the reasons aforesaid, no grounds have been made out for the present second appeal be admitted. Accordingly, SAT 360 of 2018 along with CAN 7006 of 2018 stand dismissed. There will be no order as to costs.
(Sanjib Banerjee, J.) (Suvra Ghosh, J.)