Calcutta High Court (Appellete Side)
Amit Kumar Chamaria & Anr vs Ram Brich Singh on 20 April, 2016
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION Present : The Hon'ble Justice Indrajit Chatterjee C.O. 1941 of 2013 Amit Kumar Chamaria & Anr.
-vs-
Ram Brich Singh
For the Petitioners : Mr. Saktinath Mukherjee
Mr. Supratim Laha
Mr. Pranav Sharma
Mr. Ajit Pandey
For the opposite party : Mr. Mahendra Prasad Gupta
Mr. Satyendra Agarwal
Mr. Kinshuk Mondal
Heard on : 19-04-2016 & 20-04-2016
Judgment on : 20-04-2016
Indrajit Chatterjee, J.: This is an application under Article 227 of the Constitution of India wherein the order no. 54 dated 4th April, 2013 as passed by the learned Civil Judge (Junior Division) 1st Court, Howrah in Title Suit No. 145 of 2010 has been assailed before this court. As per the said order learned trial court was pleased to allow the application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 (hereinafter called as the said Act) and directed the tenant to pay Rs.61,875/- on 30-05-2013.
Appearing on behalf of the petitioners, Mr. Mukherjee, learned Senior Counsel, submitted before this court that the order under Section 7(2) of the said Act must be set aside as it is totally illegal. The main argument of Mr. Mukherjee was that unless the defendant/tenant has complied with the provisions of Section 7(1) and the first part of the provisions of Section 7(2) of the said Act, the tenant cannot approach the court under Section 7(2) of the said Act to determine the rent.
Learned Counsel took me to the impugned order to convince this court that the learned trial court branded the defendant as defaulter in respect of the payment of rent since April, 1984 till October, 2011 and accepted that Rs.50/- was the rent fixed and the court did not accept the prayer for enhancement of rent as made out before the court. He also took me to Section 7(1) and Section 7(1)(b)of the said Act which runs thus :-
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
(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".
He also took me to first part of Section 7(2) of the said Act which runs thus:-
"(2) If 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......."
He also submitted to consider the head note of Section 7 of the said Act of 1997.
"When a tenant can get the benefit of protection against eviction."
He also submitted that the suit was filed in 2010 and Section 7(2) application under the said Act was filed in December, 2011. Mr. Mukherjee took me to the running page 34 containing the said petition under Section 7(2) of the said Act of 1997. He further submitted by taking me to the W/S that the W/S was filed on 20-01-2012 (page 29) wherein the present opposite party/defendant claimed that the rent was paid till July, 1993 (running page 30). He again took me to the running page 34 wherein the defendant claimed that he paid the rent ' up to January, 1993 to July, 1993'. Thus he contended that the learned trial court rightly and duly assessed that the defendant was a defaulter in respect of the payment of rent since April, 1984 till October, 2011. He, however, submitted that this finding is not based on admission but it is the decision of the court. He contended that if the Section 7(2) application is taken into consideration, then the court must be impressed with the fact that actually the defendant admitted that he paid rent ' up to January, 1993 to July, 1993'. He also took me to the running page 9 wherein the learned trial court observed 'on perusal of the above mentioned decision, it appears that this court can summarily reject the application under s.17(2) (now 7(2)' .but, the learned trial court did not dismiss the same on the ground that the plaintiffs did not file any application at the beginning of the suit. This, according to Mr. Mukherjee, the court had no discretion to ask for and it was the entitlement of the landlord and not the discretionary award granted by the learned trial court.
It was submitted by the learned Advocate appearing on behalf of the opposite party/defendant that in the present case, the period and non-compliance is a subject matter of the suit. He further submitted that the tenant has duty to pay rent to the landlord. On this point, he illustrated that in the application under Section 7(2) of the Act of 1997, this defendant/opposite party never admitted the present plaintiff/petitioner to be his landlord. He took me to that petition to show that in paragraphs 3 and 6, there is clear recital regarding payment of rent to the Receiver for one year and that the defendant clearly claimed that he was ready to pay all the arrear rents which he could not pay to the proper claimant to be calculated and directed by the court. Mr. Gupta further submitted that the entire petition is to be read as a whole and not separately. He took me to the two letters issued by the constituted Attorney of the present petitioners to argue that in these letters the plaintiffs did not mention since when the petitioner was inducted under the tenant and how the plaintiffs acquired title after the Receivers were discharged. He submitted that as per the letter dated 4th May, 2010 only enhancement was asked for. His another argument was that there was no attornment of tenancy to direct the defendant/opposite party to pay rent to the new landlord.
Mr. Gupta further submitted that the plaintiffs in the plaint did not mention from whom they acquired title over the property. Thus, he submitted that the plaintiffs had no right to claim rent. As regards the deposits made by him after filing of the suit, it was contended by the learned counsel for the opposite party/defendant that all the deposits were made under Section 7(1) of the Act of 1997. He submitted that the dispute was raised vide Section 7(2) of the said Act as to which landlord will get the arrear rent from the present opposite party/defendant.
Learned Counsel took me to paragraph 6 of page no, 34, i.e., the application under Section 7(2) of the said Act of 1997 wherein the opposite party clearly disputed the ownership of the property. That paragraph runs thus:- " That defendant shall clear all the arrear rent which he could not pay to the proper claimant, to be calculated and directed by the learned Court."
He referred to the decision of this court as reported in 77 CWN 70 in paragraph 21 that in such cases where ownership is in occupation question then the tenant in of the premises will enjoy it free of cost.
He also referred to a decision of this court as reported in 65 CWN 119 wherein this court pointed out the ingredients of Section 17(2) of the old At.
Learned Counsel also referred to the decision of the Apex Court as reported in (1987)2 SCC 407 (B. P. Khemka Private Ltd. Vs. Birendra Kumar Bhowmick) wherein the Hon'ble Apex Court directed that Section 17(1), Section 17(2 and) Section 17(3) of the old Act of 1956 are to be read conjointly and not in isolation and in that decision, it was further held that the word 'shall' used in Section 17(3) is to be read as 'may' and also be read 'directory' and not 'mandatory'.
He also cited another decision of the Apex Court as reported in (2002) 3 SCC 617 where the Apex Court decided the principle what is to be followed in case of defaulting tenant under Section 17 of the old Act.
He also referred to (2014)2 SCC 788 wherein the Apex Court held that when there is no landlord tenant relationship could be established even at the time of preliminary enquiry, then the suit will not proceed.
He also took me to the eviction notice dated 02-06-2010 (running page 22) to show that the plaintiffs/petitioners did not disclose how they acquired title over the property but only said "my clients' above named now previously under Receiver Sri Raghunath Prasad Bubna, who has been discharged by the ld. Civil Court, Howrah".
Learned Advocate emphasized on the word 'now' to show that the plaintiffs only referred to their title only after the Receiver was discharged from collecting rent. Learned Advocate also took me to the judgment passed by a Co-ordinate Bench of this court in C.O. 55 of 2014 (Amit Kumar Chamaria & Anr. Vs. M/s. Singh Tyre) wherein Justice Prasad while disposing of that civil order observed " The learned trial Court has found that there has been a dispute as to the amount of rent payable, however, there was no dispute as to the relationship between the parties. It is true that the admitted rent was not deposited along with the application under Section 7(2) of the application, however, the learned Judge having regard to the evidence on record determined the rent in arrear and directed the opposite party to deposit the rent in arrears by a single installment.
Having regard to the principle held in B. P. Khemka Case (Supra), this court does not find any ground to interfere into the order impugned".
Thus, he submitted that when the some question of law and fact is involved this court either may agree with the finding of that Co- ordinate Bench and if this court prefers to differ with the said judgment, then the only option is open to the court is to place the matter before the Hon'ble the Chief Justice to place the same before the Division Bench. On this point, he cited the decision of the Apex Court as reported in (2014)13 SCC 759.
He referred to paragraph 15.1 of that judgment wherein paragraph 33 of the case of Vijay Laxmi Sadho as reported in (2001) 2 SCC 247 was taken into consideration. He referred to the decision of the Apex Court as reported in (2010)5 SCC 203 wherein the Apex Court discussed regarding the fair rent matter wherein the plaintiff/petitioner prayed for enhancement of rent.
He also referred to a decision reported in 1987(1) CLJ 479 in paragraphs 5 and 10 in which a landlord tenant dispute was assailed before the single Bench of this court and the single Bench held that if under Section 17(2) of the Act of 1956, the tenant-defendant raises a dispute as to the relationship of landlord tenant between the parties, till the said dispute is determined under that section, tenant need not deposit anything either as arrear of rent or as current rent. He also took me to the evidence-in-chief of P.W. 1, i.e., the opposite party before this court (page no.44) wherein the said witness claimed that the present petitioners/plaintiffs are not entitled to receive monthly rent in absence of their ownership and title in respect of the said property.
In reply, it was submitted by Mr. Mukherjee, learned Senior Advocate appearing for the petitioners that the order impugned has not been challenged by the defendant/opposite party and as such the order has been swallowed and accepted. He submitted that as per the said order the defendant has already deposited the arrear rent and is also depositing the current rents. He took me to the impugned order to satisfy this Court regarding the payments. He took me to the impugned order at page No.5 wherein the learned trial Court said that the present opposite admitted that plaintiff Amit Kumar Chamaria is the owner of the suit premises and also that the present plaintiffs are the landlords of the suit premises.
He further reiterated that in the present revisional application the findings of the learned of the learned trial Court as regards the prayer of the present petitioner for raising the rent to the tune of Rs.347/- per month as rent is not in dispute and the petitioner has no grievance as regards that portion of the order. He took me to running page No. 35 containing paragraph No.5 and also the prayer portion of that petition to convince this Court that actually the defendant did not prove under Section 7(2) of the Act of 1997 to convince this Court that as per that petition the defendant prayed vide that paragraph No.5. That the defendant shall deposit the arrear rent to be calculated from the period from default(sic) month on which the defendant to pay the monthly rent". He also took me to the prayer portion of that petition which runs thus:
"Under the facts and circumstances it is prayed by the defendant to allow him to deposit the arrear rent after determination of the exact amount payable to the plaintiff." Thus, Mr. Mukherjee argued that virtually by all these the present defendant admitted the landlordship of the present petitioners and actually what the defendant prayed for was to allow him to deposit the arrear rent after determination of the exact amount payable to the plaintiff. He also submitted on this point that it has been admitted as per that petition that this defendant used to pay monthly rent to the receiver upto January 1993 to July 1993. Thus he contended that there was nothing to be adjudicated by the Court as it was not in dispute regarding the rent and regarding the ownership.
He also took me to page Nos. 7 & 8 of the impugned order wherein learned trial Court categorically observed "It appears from the cross-examination P.W.1 that he admitted that he has paid rent upto the year 1993. The defendant has also admitted that he has no document to show that he has got rent for the month of April 1984 to July 1993". He also emphasized to the findings of the learned trial Court as it was in page no. 9 "On perusal of the above mentioned decisions it appears that this Court can summarily reject the application under Section 17(2) (now 7(2)). He came to that conclusion in view of the decision of this Court as reported in 78 CWN 579 and 1977(2) CLJ 549 wherein this Court decided in those decisions that unless there is any compliance of Section 17(2) (as it was then) and also the first portion of Section 17(2)(as it was then) the defendant /tenant cannot come up with an application under Section 17(2)banking upon the latter part of that section. He took me both the judgments.
He also took me to the judgment of a Coordinate Bench of this Court as passed in CO No. 55 of 2014 decided on 24.7.2015 to show that the said judgment did not lay down and decisions of this Court as reported in 78 CWN 579 and 1977 (2) CLJ 549 were taken into consideration and if that Coordinate Bench did not take those two decisions into consideration then the said Coordinate Bench practically violated the principles as laid down by the Apex Court in its decision as reported in (2014) 13 SCC page 759. Thus, he submitted that there is no necessity to go with that decision only considered the factual aspect. He reiterated that known question of law even cited was skipped by that Bench. He submitted that the Court decided the matter relying only the judgment of the Apex Court as reported in 1984 (2) SCC 407 (B.P.Khemka Private Ltd. -vs-Birendra Kuma Bhowmick) which dealt with only 'May' and 'Shall' used in Section 17(3) of the Act of 1956. In that C.O before the Coordinate Bench there was no question of application of that Section 17(3) and it is not before this court in the present revisional application. Thus he submitted that there is no question of referring the matter to the Chief Justice for placing the matter before the Division Bench.
He further submitted that in the decision of B.P.Khemka(Supra) it was only considered whether the words shall use in Section 17(3) of the old act may be treated as may and that in the present litigation before this Court there is no scope to take into consideration Section 17(3) of the said Act or Section 7(3) of the present act of 1997.On this point he submitted that the decision of the said Court is hit by the doctrine per incuriam. He took me to Salmond on jurisprudence, 12 Edn. Page No. 27 wherein the author wrote "Owing to the vast number of precedents, and the heterogeneous ways in which they are reported- or are not reported -it is only too easy for counsel to miss a relevant authority. Whenever a relevant prior decision is not cited before the court, or mentioned in the judgments, it must be assumed that the Court acts in ignorance or forgetfulness of it. If the new decision is in conflict with the old, it is given per incuriam and is not being on a later part."
Regarding the judgment passed in that Civil Order learned counsel further submitted that the said Bench even did not consider the two decisions of the Hon'ble Court referred to above even though those two decisions were referred to in the impugned order. He, however, reiterated that protection to a tenant under Section 7 is available only if the conditions are available. He also relied upon the decision as reported in 77 CWN page 70 (paragraph 21) to convince this Court that after the receiver, is discharged the rent will follow and it will go to the owner and when the receiver is discharged the right of the landlord owner will revive and the default will continue to be a default. He further submitted that receiver is one collecting hand of the Court and the receiver has no title over the suit property. He also referred to Section 21(3) of the Act of 1997 which runs thus:
"21(3). Where there is a bona fide doubt as to the person or persons to whom rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner."
Learned counsel submitted that this sub-section relates to pre suit deposits and that the present opposite party was duty bound to deposit the rent to the Rent Controller even if he had bona fide doubt regarding the ownership of the property. He submitted that the present opposite party did not deposit such rent, it has not denied that there was no dues and there is no denial of the ownership of the property.
Regarding the decision of the Apex Court as reported in (2015) 8 SCC 640, Mr. submitted that he also relies on that decision and submitted that in that decision it was held that the wrong deposits made by the tenant must be bona fide but in the instant case before this Court there is nothing to show that the defendant deposited any amount either before the Controller or before the Court till the order under Section 7(2) was passed. He took me to paragraph 25 of the judgment wherein the Apex Court observed that "indisputably, the Rent Control Acts have been enacted in different States with the object to protect the tenants from illegal eviction without obtaining the decree or other from a competent court on one or more grounds provided in those Acts. At the same time, it is well settled that the benefits conferred on the tenants through those Rent Control Acts can be enjoyed only after strict compliance with the statutory provisions." It may be noted that in that case the deposit was made by the tenant to the Controller and not to the Court and the Apex Court accepted that it was a good deposit and it was done bona fide. Mr. Mukherjeec also took me to the decision of this Court as reported in AIR 1999 Cal 1, wherein he submitted before the Division Bench as noted in paragrpah 17 of that judgment "According to Mr. Mukherjee further, the Rent Controller Legislation is no longer a beneficial legislation for the tenant only , but it is also a beneficial legislation for the landlord as well." Thus, he contended that the present petitioner has every right to seek the benefit of Section 7 of the Act of 1997. Mr. Mukherjee ended his reply by submitting that other decisions cited by the learned advocate appearing on behalf of the opposite party are not applicable in this case being different on factual aspect.
So long I was in the midst of the argument put forward by the learned lawyers appearing on behalf of the parties. In answering the arguments of the parties I like to start with the judgment of the Coordinate Bench of this Court as passed in CO No. 55 of 2014.I agree with the learned Senior Counsel appearing on behalf of the petitioners that in that decision no principle was laid down and the said Bench arrived at a decision that Section 7(2) application as filed before that trial Court was maintainable in view of the decision of B.P.Khemka (supra). I like to reiterate that in that decision neither Section 7(1) nor Section 7(2) were the issues and the only issue before the Apex Court was that of Section 17(3) of the Act of 1956. In that Civil Order the two decisions of this Court as referred in the impugned order were even not considered by the said Bench and as such this Court is of the opinion that the said decision may be termed as judgment 'per incuriam' and not binding on this Court.
Now let me take into consideration some observations made by the learned Trial Court. I may say again that the impugned order has not been assailed before this Court and as such, it is binding on the opposite party/tenant. In page 5 the learned Trial Court observed "the defendant in his cross-examination admitted that he is a tenant in respect of holding No. 244, G. T. Road. Moreover, he has admitted that the plaintiff, Amit Kumar Chamaria, is the owner of the suit premises and also that the present plaintiffs are the landlords of the suit premises". The Trial Court rejected the prayer for enhancement of rent as contemplated under Section 20 of the new Act of 1997 and this matter is not an issue before this court being abandoned by the present landlord/petitioner.
In page-7 of the impugned order, the learned Trial Court observed "it appears from the cross-examination of P.W.1 that he admitted that he has paid rent upto the year 1993. Defendant has also admitted that he has no document to show that he has got rent from the month of April, 1984 to July 1983".
I have already said that the learned Trial Court relied upon the two decisions of this Court as reported in 78 CWN 579 and 1977(2) CLJ 594. In those two decisions, this Court categorically held that unless under Section 17(1) and the first part of 17(2) of the old Act, 1956 are complied with the tenant/defendant cannot take the advantage of Section 17(2). It may be mentioned that 17(1) and 17(2) of the old Act of 1956 and Section 7(1) and 7(2) are replica to each other.
Thus, this Court time and again held that compliance of Sections 17(1) or 7(1) and the first part of 17(2) or 7(2) must be complied with to give protection to the tenant which has been clearly mentioned in the head note of Section 7 of the new. It is thus "when a tenant can get the benefit of protection against eviction". Learned Trial Court even observed in the impugned order in page 10 so, "upon perusing the material this court has very little option but to hold the defendant a defaulter in respect of payment of rent since April, 1984 till October, 2011 in Toto (sic) for "8 + (26 x 12) 10 (sic) 330 months at the rate of Rs.50/- payable according to English calendar month ..."
It is not in dispute that in compliance with that order, the defendant/tenant has already deposited the arrear rent as calculated and the defendant is going on paying the current rent at the rate of Rs.50/- per month.
Now, the question is whether the learned Trial Court rightly held that the landlord-tenant relationship was admitted and so also the rent payable. I have already said that the said order has not been assailed by the opposite party and as such, it is binding on him. It is my duty to refer here what was there in the application under Section 17(2) of the Act of 1997. The defendant admitted as per that petition that he entered into appearance with the filing of that application on 22nd November, 2011 and in that petition, the petitioner admitted that he had been paying monthly rent to the Receiver, who received the monthly rent upto January, 1993 to July, 1993 and thereafter he (Receiver) stopped to receive monthly rent on the ground that he was going to be discharged by the learned Trial Court.
In paragraph 5 of the said petition at page 35 the defendant averred. "That the defendant shall deposit the arrear rent to be calculated from the period from defaulted month on which the defendant failed to pay the monthly rent". In the prayer portion, the defendant prayed that he may be allowed to deposit the arrear rent after determination of the exact amount payable to the plaintiffs.
The defendant knew very well how much rent he used to pay when he has admitted that he used to pay rent to the Receiver. Thus, there was no dispute as regards the rate of rent which the defendant used to pay till he stopped payment. The order impugned being not assailed, this defendant tenant now cannot say that the rent was not Rs.50/-. As no document was filed before the trial court as regards payment of rent prior to the suit the court below rightly held that the tenant/defendant was as defaulter. This finding also has not been assailed and as such it binding on the party/tenant that he was defaulter since April 1984.
No document has been produced by the defendant tenant to show that he deposited any amount to the Rent Controller prior to the filing of the suit as contemplated under Section 21(3) of the Act of 1997. Even after the filing of the suit, the defendant did not make any payment calculating such arrear rent from April, 1984 till he entered into appearance in November, 2011.
In view of the two decisions of this Hon'ble Court as reported in 78 CWN 579 and 1977(2) CLJ 594, this court reiterates with the learned trial court must have paid the admitted arrear rent along with statutory interest as contemplated under Section 7(1)(a) and without paying that rent along with interest, the defendant tenant ought not have filed the application under Section 7(2) of the Act of 1997.Even the learned trial court observed in view of those two decisions " on perusal of the above mentioned decision, it appears that this court can summarily rejects the application under Section 17(2) (now 7(2))". The observation of the learned trial court that the plaintiffs landlords may prefer an application before the court at the very beginning of the institution of those applications under Sections 7(1) and 7(2) has not the backing of any law. The petitioners plaintiffs were not duty bound to file an application on that score as contemplated by the learned trial court. This court may further observe by taking into consideration Section 7(1)(a) of the Act of 1997 that this is a separate section and may not be clubbed with that of an application under Section 7(2) of the said Act.
I have taken into consideration the other decisions as cited by the learned Advocate appearing on behalf of the petitioners and I like to say that those decisions except the decisions of this court as reported in 77 CWN 70, (2015)8 SCC 840 and the decision of the Apex Court as reported in (2014)2 SCC 788 cannot apply on the facts and circumstances of the case.
In paragraph 21 of the decision as reported in 77 CWN at page 78, the Hon'ble Division Bench observed, " If the rent is payable and if rent is not paid the default is a default in payment of rent and not merely a default in payment of money. If the view is taken that there cannot be any ejectment on the ground of default unless the default in payment of rent arises during the time of the landlord plaintiff then some serious consequences will follow if the property devolves from father to son and if the default is made during the time of the father, then the son cannot sue the ejectment on the ground of default. Similarly, if landlord's interest is transferred successively every two years or every one year then there can be no ejectment on the ground of default in payment of rent and the tenant can enjoy the property rent free.
Thus, in view of the discussion so long made, this court is satisfied that the order impugned is fit to be set aside and I do that by exercising the discretion of this court as granted under Article 227 of the Constitution of India.
This revisional application, thus, succeeds on contest without costs.
Office is directed to communicate this order to the learned trial court at once.
Photostat certified copy of this order, if applied for, be supplied to the parties on usual undertaking.
(Indrajit Chatterjee, J.)