Calcutta High Court (Appellete Side)
Mithun @ Akhtar Ali vs Sk. Aziz Haque & Ors on 24 November, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
(Appellate Side)
PRESENT:
The Hon'ble Justice Mir Dara Sheko.
C.O. No. 1332 of 2016
Mithun @ Akhtar Ali
-Versus-
Sk. Aziz Haque & Ors.
For the Petitioner : Mr. Somnath Roy Chowdhury
For the Opposite Parties : Mr. Sanjib Seth
Heard on : 31.10.2017 & 02.11.2017.
Judgment on : 24.11.2017.
Mir Dara Sheko, J. : 1. The application under Section 7(2) of the W.B.P.T. Act
initially was disposed of by Learned Trial Court on March 7, 2014 directing the
petitioner herein to deposit the rent fell in arrear up to January 2014 with
statutory interest at a time with as usual further direction to go on depositing the
sum equivalent to current monthly rent.
2. At the instance of the petitioner/defendant/tenant in an application under
Article 227, Constitution of India being C.O. 1612 of 2014 period of default only
was modified holding that the petitioner was in default from January 2011 till
January 2014 i.e. for 157 months instead of 168 months as erroneously
calculated by learned Trial Court, and said amount would have to be deposited
by 15th February, 2015.
3. The petitioner contended that though said calculated amount of arrear with
statutory interest was deposited by challan on February 7, 2015, but did not take
steps in respect of depositing the sum equivalent to the rent for current months
till receipt of the certified copy of the disposal order of C.O. 1612 of 2012 lying
with his Advocate of High Court.
4. The petitioner on receipt of copy of said order filed an application under
Section 5 of the Limitation Act praying for condonation of delay in depositing the
sum said to be the current rents from February 2014 to January 2015 on 7th
February 2015.
5. Learned Trial Court took note of the plea of the petitioner as the petitioner
allegedly was under impression that in view of pendency of C.O. 1612 of 2012 he
was not required to deposit the current rent from February 2014 onwards.
However learned Trial Court rejected the application dated 7.2.2015 filed by the
petitioner under Section 5 of the Limitation Act holding that the causes shown by
the petitioner to condone the delay were insufficient and observed as follows:-
"It is settled principle that 'ignorance of law' is not an excuse. It
appears from the order sheet that the Defendant has filed hazira
during the period of January 2014 till March 2014. Subsequently
since April 2014 till November 2014 did not take any steps and
ultimately appeared again through a new Advocate on 19.01.15.
There is no explanation or sufficient causes in the instant petition
as to what deterred the Defendant from filing rent deposit
challans for the current period of January 2014 till March 2014
while he took part in hearing of the application U/S 7(2) of
W.B.P.T. Act on 09.01.14 till it was disposed on 07.03.14."
6. Mr. Chowdhury submitted that bona fide conduct of the petitioner should have
to be taken into consideration, and protection under Section 7(4) of the Act should
be granted by extending time in exercise of judicial discretion as the unintentional
default after final settlement took place only once within a period of twelve months.
7. Mr. Chowdhury learned counsel for the petitioner to apprise the Court submitted
that application under Section 5 is applicable in condoning the delay to the
discretion of the Court in extending time to even the current rents. Mr. Chowdhury
relied upon the following cases:-
(a) M/s. B.P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick & Anr.
reported in AIR 1987 SC 1010.
(b)Ashok Kumar Bhagnani Vs. Mansur Ahmed reported in 2015(4) CHN
(CAL) 699.
(c) Bal Gopal Maheshwari & Ors. Vs. Sanjeev Kumar Gupta, Civil Appeal
No. 7279 of 2013 unreported.
8. Mr. Sanjib Seth per contra submitted that applicability of Section 5 of the
Limitation Act for condonation of delayed deposit would not be available under the
Act since it is a special statute. Alternatively argued that when the opportunity
once was allowed to the petitioner to make payment of delayed deposit by settling
the period and amount of default in respect of the rented premises, and, while
again the petitioner fell in default for 3 months in succession protection under
Section 7(4) would no more be available to the petitioner and defence against
delivery of possession would be struck off by operation of law. Relying upon the
following cases Mr. Seth thereby submitted to dismiss the application under Article
227 of the Constitution of India.
(i) 2013 (3) CLJ (CAL) 556 (Arup Kumar Atta v. Susanta
Kumar Ghosh).
(ii) 2012 (3) CHN (CAL) 423 (Subrata Mukherjee v. Bishakha
Das).
(iii) C.O. 3571 of 2013 (Sri. Loknath Dhal v. Smt. Gita Rani
Roy).
(iv) C.O. 801 of 2014 (M/s. Venus Drug Centre v.
Dinabandhu Hajra & Ors.).
(v) 1987(2) CLJ 297 (Krishna Gopal Ghosal Vs. Mihir Baran
Nandy).
9. Perused the decisions cited at Bar, consulted the provisions of the West Bengal
Premises Tenancy Act, 1997 which has been substituted The West Bengal Premises
Tenancy Act, 1956.
10. In the case on hand judicial review is required to answer on the following
questions:-
1.Whether the impugned order in not condoning delay in depositing current rent beyond stipulated period suffers from perversity or illegality?
2. Whether rejection of prayer of the petitioner/tenant in declining to accept the delayed deposit by condoning the delay with the aid of application under Section 5 of the Limitation Act suffers from any illegality?
3. Whether the impugned order suffers from perversity causing unforeseen hardship and injustice to the petitioner forcing him to face the consequential provision under Section 7(3) of the Act in disallowing scope of Section 7(4) of the W.B.P.T. Act 1997?
11. It is obvious that attempt always will remain open to the parties to take aid of the judge-made law favouring the plea of judicial precedent. Therefore, to settle for good, and not to allow in rendering vacillating view to unsettle again if it is already settled, it would mean giving opportunity to the litigant to abuse process of law than to use it for what purpose it was pronounced by interpreting the law. Primarily one is to follow the statute, which is interpreted by the Court in the discharge of judicial junction. But such interpretation shall not be de hors the statute unless the same is ever declared ultra vires.
12. In the case on hand, after modification by this court in the Trial Court's order passed under Section 7(2) of the Act the petitioner was directed to deposit the settled arrears with statutory interest upto January 2014. The petitioner however did not deposit or continue to deposit the sum equivalent to current rent for which he took the alibis, viz, (i) due to reason of pendency of Revision he was under
impression that he was not supposed to pay any rent from February 2014 onwards,
(ii) he was not so advised by his erstwhile Advocate, and, (iii) being now advised by his newly appointed advocate he intended to deposit the current rents from the period from February 2014 to January 2015 on the 7th February 2015 accompanying by an application under Section 5 of the Limitation Act.
13. The case of Krishna Gopal Ghosal Vs. Mihir Baran Nandy & Ors. was of a Special Bench decision pronounced on a reference which is set out hereunder:-
"A Division Bench of this Court referred a revision case to the Special Bench for answering the question whether or not poverty would be a ground for condonation of the delay in depositing monthly rents in terms of section 17(1) of the West Bengal Premises Tenancy Act, 1956, and whether court can entertain such a ground for condonation of delay and for extension of time as prayed for."
Their Lordships had taken note of paragraph 15 from the case of M/s. B.P. Khemka Private Limited Vs. Birendra Kumar Bhowmick (supra) reported in AIR 1987 S.C. 1010 which is reproduced:-
"Once the word 'shall' used in section 17(3) is read as 'may' and consequently the provision for striking out of the defence, is to be read as directory and not mandatory then it follows that the court is vested with discretion to order either striking out of the defence or not depending upon the circumstances of the case and the interests of justice. This court has consistently taken the view that if the court has the discretion not to strike out the defence of the tenant committing default in payment or deposit of rent as required by a provision in any Rent Restriction Act, then the court surely has the further discretion to condone the default and extend the time for payment or deposit and such a discretion is a necessary implication of the discretion not to strike out the defence."
Their Lordships however in the case of Krishna Gopal Vs. Mihir Baran Nandy (supra) observed in paragraph 6 that the Supreme Court in the case of M/s. B.P. Khemka Private Limited. Vs. Birendra Kumar Bhowmick (supra), the Supreme Court did not indicate whether also in exercise of its inherent powers, the court can condone a default in payment of rent or extend the time to deposit rent prescribed by sub- section (1) of section 17 of the West Bengal Premises Tenancy Act.
14. It is obvious that the provisions of the West Bengal Premises Tenancy Act, 1956, substituted by new West Bengal Premises Tenancy Act, 1997, is the special statute for determination of tenancy wherever it is applicable. Purpose is not to evict a lawful tenant by his landlord from the tenanted premises without due process of law, and a tenant is liable to be evicted subject to proof of the ground(s) of eviction urged in the suit following the provisions indicated in the Act. The Act as has provided sufficient protections to be enjoyed by the tenant before or during any eviction suit, till its finality, similarly the tenant in the status of statutory tenant shall have to discharge also the statutory obligations to get statutory protection. In the case on hand deposit of the arrears with statutory interest along with continuation of the sum equivalent to monthly rent within 15th of each succeeding month as indicated under Section 17(2), 17(1) of the Old Act or under Section 7(2), 7(1) of New Act would be one of such statutory obligations which are to be discharged to avoid becoming victimization of Section 17(3) of the Old Act or under Section 7(3) of the New Act.
15. However, judicial discretion is vested to the Court for its exercise in any appropriate case and circumstance for the interest of justice. Again the phraseology "interest of justice" cannot be one sided. Therefore the Court is to take care that to do justice in exercising judicial discretion in one's favour the other side may not be prejudiced. To explicit myself let me explain. In the present nature of case there are some statutory obligations to be maintained by the landlord and tenant respectively. As the landlord pursuant to the provisions provided in the West Bengal Premises Tenancy Act would not be entitled to evict his tenant without due process of law, and that too subject to proof of ground(s) of eviction, similarly for statutory violation in respect of the obligations to be discharged by the tenant, if any right accrues in favour of the landlord, the tenant would be bound to surrender to such right. If any such right is accrued in favour of the landlord due to statutory violation by the tenant, then by operation of law due to such violation, the legal right within such act, if any is accrued in favour of the landlord the same should not be robbed away in exercise of judicial discretion in the name of interest of justice by condoning the fault or statutory violation of the tenant. Therefore, violation of the statutory obligations to be performed by the tenant incurs invoking of the provision under Section 17(3) of the Old Act or Section 7(3) of the New Act. The right of striking out of defence against delivery of possession in respect of the suit premises springs up by operation of law if the statutory tenant pursuant to the order of the court, or by otherwise, violates the provision under Section 17(1) (2) of the Old Act, or, Section 7(1) (2) of the New Act. In the name of interest of justice judicial discretion is exercised to condone the delay in making the statutory deposit(s) by applying some legal tests. Their Lordships in the case of Krishna Gopal Ghosal Vs. Mihir Baran Nandy & Ors. (supra) have cited some possible circumstances under which delay in deposit or payment of rent as is occurred may be condoned under Section 17(1) of the Old Act or Section 7(1) of the New Act and the same is set out:-
" It is neither possible nor desirable to exhaustively mention the circumstances under which delay in deposit or payment of rent as required by section 17(1) of the said Act may be condoned. Obviously, when such a delay occurs because of any mistake or error on the part of the court itself, the same ought to be condoned. There may also other circumstances beyond the control of the defendant which may result in causing delay in deposit or payment of rent under section 17(1) of the Act, viz., civil commotion, general strike, natural clamity, etc. Some of these unforeseen circumstances were mentioned by the Division Bench in the case of (3) Silala Devi v. Roy Bahadur, 76 CWN 435 at page 443. Financial or economic position of a tenant also is not totally irrelevant for the purpose of deciding whether in a particular case circumstance exist for condoning delay or extending the time for deposit of rent."
Taking the ratio decidendi their Lordships in the case of Krishna Gopal Ghosal Vs. Mihir Baran Nandy & Ors. further held as follows:-
"Whenever a tenant applies for condoning the delay in deposit of rent he must establish that there were extraordinary circumstances which caused the tenant to involuntarily commit a breach of sub-section(1) of section 17 of the West Bengal Premises Tenancy Act and to deposit the rent for the month in or months in question beyond the prescribed time. When voluntarily and by his own laches a tenant deposits the rent or pays rents beyond the time fixed by section 17(1) of the said Act, the court would certainly refuse to exercise its discretion in favour of such a defaulting tenant, and would reject his prayer for condonation of delay in making the deposit."
16. In the case on hand no such possible circumstance arose which had prevented the petitioner from complying those statutory obligation which would require condonation. This act of condonation however is in exercise of judicial discretion and not in consideration of any application under Section 5 of the Limitation Act, 1963. In the case of M/s. B.P. Khemka Private Limited Vs. Birendra Kumar Bhowmick (supra) though it was held that the Court has jurisdiction to condone the delay or to extend the time for deposit or payment of the sum equivalent to the rent for the suit premises under Section 17(1) of the Old Act and eventually also under Section 7(1) of the New Act, but Their Lordships did not answer the lis as to whether with the aid of Section 5 of the Limitation Act the delay should have to be considered or not in exercise of judicial discretion.
17. On the contrary, whether the provision of Section 5 of the Limitation Act, 1963 would be applicable or not in condoning the delay in presentation of a time barred application under Section 7 (2) there was a reference from this Court presumably due to divergent opinion on the point.
18. This Special Bench of this Court in the case of M/s. B.P. Khemka Private Limited Vs. Birendra Kumar Bhowmick (supra) though decided it as a unnecessary pursue about applicability of Section 5 of the Limitation Act to extend the time for deposit, under Section 17(1) & (2) of the Old Act as was held by Single Bench of this court in the case of M/s. Darka Das Vs. Raghu Prasad reported in 1987(1) CLJ 479, however, the Division Bench of this Court in the referential case of Subrata Mukherjee Vs. Bisakha Das (supra) answered in paragraphs 46 and 47 which are set out:-
Paragraph 46:- The matter may be examined from another angle. The deposit by the tenant within 15 days is not an application within the meaning of Section 5 of the Limitation Act, 1963. Since the deposit does not require any application, therefore, the provisions of section 5 cannot be extended where the default takes place in complying with an Order under sub-section (4) of section 13 of the Act.
Paragraph 47:- The provisions of section 5 of the Limitation Act must be construed having regard to section 3 thereof. For filing an application after the expiry of the period prescribed under the Limitation Act or any other special statute, a cause of action must arise. Compliance with an order passed by a Court of law in terms of a statutory provision does not give rise to a cause of action. On failure to comply with an order passed by a Court of law, instant consequences are provided for under the statute. The Court can condone the default only when the statute confers such a power on the Court and not otherwise. In that view of the matter we have no other option but to hold that section 5 of the Limitation, 1963 has no application in the instant case."
19. Further unreported case of Sri Loknath Dhal Vs. Smt.Gita Rani Bhar (C.O. No. 3571 of 2013), of course, relying upon a Special Bench decision of the Supreme Court Nasiruddin and Ors. Vs. Sita Ram Aggarwal reiterated the same principle that Section 5 of the Limitation Act, 1963 is not applicable where there is a default in depositing the rent by the statutory tenant who was supposed to deposit the sum, be it admitted arrears or equivalent to monthly rent within the time provided in the Act, or otherwise directed. In another unreported case of M/s. Venus Drug Centre Vs. Dinabandhu Hazra & Ors. (C.O. 801 of 2014) this Court taking note of different citations, as also cited at the Bar remained with the same view that the Court has no scope to entertain any application under Section 5 of the Limitation Act for extension of time.
20. It is obvious that submission of application under Section 5 of the Limitation Act, 1963 along with the main may arise in case of preferring any appeal or any application which are liable to be admitted by the Court where some order passed by the Court subordinate to it was assailed. In other way in the original matters in respect of filing of suits or case some period is also prescribed within which legal steps are supposed to be taken subject to having cause of action. The provision of Section 17(2) of the Old Act vis-a-vis Section 7(2) have provided opportunity to the tenant to deposit the admitted arrear rent if any within the stipulated period after his/her first appearance, and, thereafter the compliance under provision under sub-section (1) if would be continued towards depositing the sum equivalent to current rent month by month, then question of striking out of defence under sub- section (3) would not arise. Rather protection is available under sub-section (4). That apart, further protection has been provided in the Act that even after obtaining the relief under sub-section (2) of the Act if again the statutory tenant would make default in making deposit of the sum equivalent to the rent "for four months within a period of twelve months" or, "for three successive rental periods when rent is not payable monthly" the said protection would no more be available to the tenant. Meaning thereby, the provision under sub-section (3) of either Section 17(3) of the Old Act or Section 7(3) of the New Act would come into play by operation of law for which even no application is mandatory. Rather it would be the court's duty to record appropriate order if the violation of provision caused by the statutory tenant is brought to the notice of the Court.
21. All the above discussions on the basis of the cases cited at the Bar this Court observes that though in exercise of judicial discretion default of the erring side may be condoned but such condonation does not come within the purview of Section 5 of the Limitation Act. If I minutely go through and read between the lines of sub- section (4) of either old Section 17 of the Old Act or Section 7 of the New West Bengal Premises Tenancy Act, then there can be no hesitation but to be ensured that one can find out that the point of limitation is inbuilt, for which there is no need to take aid of Section 5 of the Limitation Act. What is necessary, it is the deposit of the sum equivalent to the rent month by month within the period provided in the special statute in respect of the sum equivalent to monthly rent apart from determined arrear amount. Latitude is given to the statutory tenant however not to make default in making deposit or payment of such rent once again for a period more than three successive rental periods or exceeding four months within a period of twelve months. Meaning thereby, even if there was default during pendency of the suit so far as making deposit or payment in respect of the current rent that may be protected under sub-section(4) of Section 17 of the Old Act or Section 7 of the New Act, provided the other statutory applications like 17 (1) (2) (2A) of the Old or 7(1) & (2) of the New Act were filed within time. Therefore when the provision for condonation of delay apart from the scope of exercise of the judicial discretion is inbuilt within the provision of sub-section (4) of Section 17 or 7 of the respective Act, then applicability of Section 5 of the Limitation Act, 1963 can have no place as was indicated already by the Division Bench of this Court followed by other Single Bench in deciding the same, as noted above.
22. The question of application of Section 5 of the Limitation Act, 1963 could arise when any appeal or application may be admitted after the prescribed period, and the delay is condoned provided the applicant is able to satisfy the Court that he had sufficient cause for not preferring the appeal or filing the application within the prescribed time limit. But in the proceeding under the special statute deposit of the sum equivalent to the rent is necessary mandate than filing of application. To explicit myself, even after determination of the arrear of rent either under old Section 17(2) or New Section 7(2) of the West Bengal Premises Tenancy Act the very deposit within prescribed period would be suffice. Necessarily such deposit need not be accompanied with any application. Similarly, as regard payment of the sum equivalent to the current rent would be dependent upon deposit, which would not be necessarily accompanied with any application. Because such deposit is expected to be tendered by Treasury challan. Therefore, the provision of conditional condonation to get protection itself being inbuilt with the provision of latitude even after it is taken place once during the pendency of the suit, separate application under Section 5 of the Limitation Act, 1963 does not have any place.
23. Therefore, the right under Section 17(3) of the West Bengal Premises Tenancy Act, 1997 having been accrued in favour of the opposite party landlord by operation of law and when learned Trial Court having been rightly dissatisfied and rejected for not allowing to deposit the sum which was not deposited in time on lame and fake excuse, this court in the process of judicial review has no legal reason to interfere with the same since the impugned order does not suffer from any perversity and Section 5 of the Limitation Act having no applicability in such case, condonation of delay was rightly declined to invoke the provision laid down under Section 7(3) of the New Act. Meaning thereby, the impugned order No. 68 dated 1st March, 2016 passed by the Learned Civil Judge (Junior Division) 1st Court at Howrah in suit No.140 of 2010 is hereby upheld and the application being C.O. 1332 of 2016 is dismissed with cost of Rs. 5,000 payable by the petitioner before the learned Trial Court within a period of one month from this date failing which the opposite party/landlord may take legal step for its realization.
24. Certified copy of this order be supplied to the parties if applied for.
(MIR DARA SHEKO, J.)