Calcutta High Court (Appellete Side)
Mr. Anwar Hussain vs Raja Mohammed Amin & Ors on 23 November, 2017
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashis Kumar Chakraborty
C.O. 2719 of 2017
Mr. Anwar Hussain
Vs.
Raja Mohammed Amin & Ors.
For the petitioner : Mr. Kushal Chatterjee
For the opposite parties : Mr. Hiranmoy Bhattacharya
Mr. Rajdeep Bhattacharya
Mr. S. Siddique
Mr. M.I.A. Lodhi
Heard on : 27.10.2017
Judgement on : 23.11.2017
Ashis Kumar Chakraborty, J.
This revisional application, at the instance of the defendant no.5 in the ejectment suit is directed against two orders, being order no.13 dated November 17, 2016 and order no. 15 dated February 14, 2017, respectively passed by the learned Judge, 5th Bench, Small Causes Court at Calcutta in Ejectment Suit No.345 of 2015.
By the first impugned order dated November 17, 2016 the learned Court below rejected the application filed by the present petitioner and the defendant no.4 under Section 7 (2) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to "the Act of 1997"). By the second impugned order dated February 14, 2017 the learned Court below rejected the application filed by the petitioner and the defendant no. 4 under Section 151 of the Code of Civil Procedure, 1908 (in short "the Code"), together with an application under Section 5 of the Limitation Act.
The brief facts giving rise to the present revisional application are that the plaintiff opposite parties have filed the suit, for eviction of the petitioner and the proforma opposite party nos.1 to 4 from shop no. 3 on the ground floor of premises no. 22, Madan Mohan Burman Street , Kolkata (hereinafter referred to as "the suit property"), inter alia, on the grounds of default in payment of rent and reasonable requirement. It is the plaint case that since July, 2007 the defendants defaulted in payment of rent of Rs. 250/-, per month. After entering appearance in the suit, in the month of August, 2015 the present petitioner and the defendant no.4 filed an application under Section 7 (1) of the Act of 1997 praying for, deposit of the rent of the suit property for the month of September, 2015 in the Court. They claim to have been depositing the rent of the suit property in the learned Court below from the month of September, 2015. The present petitioner and the defendant no.4 also filed an application in the suit under Section 7 (2) of the Act of 1997 for determination of arrear rent of the suit property, if any. In the said application no dispute was raised with regard to either the relationship of landlord and tenant between the parties or the amount of monthly rent payable for the suit property. The present petitioner and the defendant no.4 stated that from the month of January, 2008 to March, 2013 the rent tendered by them to the plaintiffs were not accepted and from April, 2013 to August, 2015 they deposited the rent for the suit property in the office of the Rent Controller of Kolkata. They, however, filed the said application without any deposit of the admitted arrear rent for the months of January, 2008 to March, 2013. The plaintiffs opposite parties contested the said application. They contended that inasmuch as the defendants, along with the said application did not deposit the admitted arrear rent for the period from January, 2008 to March, 2013 the mandatory requirement under Section 7(2) of the Act of 1997 was not fulfilled and the said application was not maintainable. By the order dated November 17, 2016 the learned Court below upheld the said contention of the plaintiffs and rejected the application under Section 7(2) of the Act of 1997. Without assailing the said order dated November 17, 2016 before this Court in revisional jurisdiction, the said defendants filed an application before the learned Court below under Section 151 of the Code for deposit of the admitted arrear rent together with statutory rate of interest. Along with the said application, the present petitioner and the defendant no.4 also filed an application under Section 5 of the Limitation Act for condonation of delay of 543 days for deposit of admitted arrear rent from January, 2008 to March, 2013. The plaintiffs opposite parties also contested the said applications and raised objection to the maintainability of the application under Section 151 of the Code. By the second impugned order dated February 14, 2017 the learned Court below rejected both the said applications filed by the present petitioner and the defendant no.4 under Section 5 of the Limitation Act, as well as the application under Section 151 of the Code. As mentioned earlier, both the said orders dated November 17, 2016 and February 14, 2017 passed by the learned Court below have been assailed by the present petitioner alone in this revisional application.
Assailing the first impugned order dated November 17, 2016 Mr. Kushal Chatterjee, learned advocate appearing for the petitioner submitted that as per Section 7 (2) of the Act of 1997 when the petitioner and the defendant no. 4 filed the application for adjudication of arrear rent the learned Court below was mandatorily required to adjudicate the arrear rent for the suit property payable by the defendants to the plaintiffs. He strenuously contended that the word "shall" appearing in Section 7 (2) of the Act of 1997 providing "On receipt of the application the Civil Judge shall.......make, as soon as possible within the period of not exceeding one year, an order specifying the amount if any due from the tenant....." is imperative and as such the Court is mandatorily required to dispose of the application under Section 7 (2) of the Act of 1997 with an adjudication of the arrear rent payable by the defendant tenant, if any, and such application cannot be rejected as has been done by the learned Court below in this case. In this regard, he cited the Division Bench decision in the case of Sri Mrinmoy Sarkar vs. Smt. Ram Devi reported in (1990)1 Cal LT (HC)31.
It was next submitted that in view of Section 40 of the Act of 1997 the applications under Section 7(1) and 7(2) of the Act of 1997 can be filed by a defendant tenant with an application under Section 5 of the Limitation Act. Mr. Chatterjee strongly contended that the word "shall" appearing in the first part of Section 7 (2) of the Act of 1997 providing that if, there is any dispute as to the amount of rent payable by the tenant, the tenant shall within the time specified in the Section 7(1) deposit with the Civil Judge the amount admitted by him to be due from him together with an application for determination for the rent payable is not imperative as there is no consequence provided for non deposit of the said admitted arrear rent. In support of such contention reliance was placed on the unreported decisions dated July 24, 2017 and August 16, 2017 passed by a learned Single Judge of this Court in C.O. 1001 of 2015 ( Land & Bricks and Entertainments Ltd. vs. Samir Kumar Mallick & Anr.) and C.O. 2644 of 2017 ( M/s. Smart Enterprises vs. Shree Ram Trust), respectively. It was strenuously urged that in any event, the learned Court below committed a patent illegality in rejecting the application of the petitioner under Section 151 of the Code for deposit of the admitted arrear rent of the suit property from January, 2008 to March, 2013. He further submitted that the learned Court below fell into an error of law in dismissing the application under Section 5 of the Limitation Act without disclosing any reason and on this ground alone the second impugned order dated February 14, 2017 is liable to be set aside. It was argued for the petitioner that unless there is an adjudication of the arrear rent of the Court under Section 7 (2) of the Act of 1997 and there is a default on the part of the defendant tenant to pay the arrear amount within time stipulated in an order passed under Section 7 (2), the defence in the suit against delivery of possession cannot be struck out under Section 7 (3) and a defendant still have the right to file the application under Section 7 (1) of the Act, which is an independent provision for deposit of the admitted arrear rent. Referring two unreported decisions of this Court in the case of Arun Prakash Saha vs. Asit Baran De and Anr. reported in (2017) 1 CLJ (Cal) 615 and in the case of Kalithody Sahaderan Thirumulpad vs. Rahul Moitra reported in (2017) 2 CHN 331, Mr. Chatterjee submitted that although in the said decisions, this Court held that when the defendant tenant in a suit for eviction under the Act of 1997 does not dispute, either the relationship of landlord and tenant between the plaintiff and himself or the rate of rent payable by him, but only disputes his liability to pay the entire amount claimed by the plaintiff landlord as the arrear rent, his application under Section 7(2) of the Act of 1997 must be accompanied by deposit of the admitted arrear rent, but the facts of those cases were different and the said decisions have no application in this case. It was strenuously contended in view of the unreported decisions of a learned Single Judge of this Court in the cases of Land & Bricks and Entertainments Ltd. (Supra) and M/s. Smart Enterprises (Supra), the instant revisional application should be allowed by setting aside both the impugned orders.
On the other hand, Mr. Hiranmoy Bhattacharya, learned advocate appearing for the plaintiffs opposite party nos. 1 and 2 contended that the none of impugned orders passed by the learned Court below suffers from any error of law and there is no merit in this revisional application. He submitted that in the instant case in the month of August, 2015 the petitioner and the defendant no. 4 filed the application, under Section 7(1) of the Act of 1997 for deposit of the rent only for the month of September, 2015 at the rate of Rs. 250/- per month and to continue to deposit the monthly rent in Court till disposal of the suit. According to him, the provisions contained in Section 7 (1) and 7 (2) of the Act of 1997 are independent of each other. It was contended that when a defendant tenant admits the arrear amount of the rent claimed by the plaintiff landlord, Section 7(1) requires the defendant tenant either to pay to the landlord or to deposit in the Court all admitted arrear rent and thereafter, to continue to pay to the landlord or deposit in Court the monthly current rent of the suit property. However, the provisions in Section 7(2) of the Act of 1997 would apply when the tenant disputes either the relationship of landlord and tenant between the parties to the suit or there is a dispute with regard to the rate of rent payable for the suit property or when the defendant disputes the amount of arrear rent claimed in the suit. Therefore, according Mr. Bhattacharya although it correct, as argued by the petitioner, that the provisions of Section 7(1) and Section 7(2) of the Act of 1997 are independent of each other, but in the instant case when the defendants did not admit the entire amount claimed by the plaintiffs to be arrear rent Section 7(1) of the said Act has no application and the argument advanced on behalf of the petitioner that even after dismissal of the application under Section 7(2), the defendants could file an application under Section 7(1) has no merit. He further submitted that when Section 7(2) of the Act of 1997 specifies the time for payment of the admitted arrear rent, Section 151 of the Code cannot be invoked by the Court to override the express provision made under the Act of 1997. It was argued that the provisions contained the first part in Section 7(2) of the Act of 1997 providing for the tenant's deposit of the admitted arrear rent are pari materia with the provisions contained in the first part of Section 17(2) of the earlier West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as "the Act of 1956"). Relying on the decisions in the cases of Gunwantrai T. Kamdar vs. Satyanarayan Jhunjunwala reported in 75 CWN 372 and Hindusthan Industrial vs. Chandi Prosad More reported in 79 CWN 1017, he submitted that the Division Bench of this Court have already interpreted the provisions contained in Section 17(2) of the Act of 1956 to the effect that in a suit for eviction when the defendant tenant admits any portion of the arrear rent claimed by the plaintiff landlord, in order to maintain an application under Section 17(2) of the Act for adjudication of the amount of arrear rent payable he must, along with the application, deposit the entire admitted arrear rent. He submitted that since the provisions contained in Section 17(2) of the Act of 1956 are pari materia with the provisions contained in Section 7(2) of the Act of 1997 the said decisions of the Division Bench of this Court in the case Gunwantrai T. Kamdar (Supra) and Hisdusthan Industrial (Supra) are squarely applicable, even for an application under Section 7(2) of the Act of 1997, but while deciding the cases of Land & Bricks and Entertainments Ltd. (Supra) and M/s. Smart Enterprises (Supra) the attention of the learned Single Judge was not drawn to the said two Division Bench decisions of this Court. The plaintiffs opposite parties further submitted that the facts of this case are identical with those in the case of Kalithody Sahaderan (supra), where this Court has already held that while filing an application under Section 7(2) of the Act of 1997 if the defendant admits some amount of arrear rent, he has to deposit the said amount, along with his application, with the Court. It was pointed out that even the said decision of this Court in the case of Kalithody Sahaderan (supra) was not placed before the learned Single Judge while deciding the said cases of Land & Bricks & Entertainments (Ltd) and M/s Smart Enterprises (supra). Therefore, according to Mr. Bhattacharya, the decisions of the learned Single Judge of this in the cases of Land & Bricks and Entertainments Ltd. (Supra) and M/s. Smart Enterprises (Supra) are not binding upon this Court. It was strongly argued that when the petitioner and the defendant no. 4 did not, along with their application under Section 7(2) of the Act of 1997, deposit the admitted arrear rent for the months from January, 2008 to March, 2013, the learned Court below was correct to reject the said application.
It was submitted by Mr. Bhattacharya that even it be accepted for the sake of argument, that in view of the specific provisions contained in Section 17(2A) (a) and (b) and those contained in Section 17(2B) under the Act of 1956, the Court had the power to allow a defendant tenant to deposit the admitted arrear rent under Section 17(2) beyond the time specified in Section 17(1) of the said Act, but while enacting the Act of 1997, by which the Act of 1956 stood repealed, the legislature has intentionally omitted to confer any power on the Court, akin to those conferred under Section 17(2A) and Section 17(2B) of the Act of 1956 to extend the time for making deposit of the admitted arrear amount of rent together with the application under Section 17(2). Therefore, it was argued for the plaintiffs opposite parties that any interpretation of the term "shall" appearing in the first part of Section 7(2) of the Act of 1997 to be only directory and not imperative shall result in conferring discretion on the Court, which could be exercised under Sections 17(2A) and 17 (2B) of the repealed Act of 1956, but consciously omitted by the Act of 1997, which is not permissible in law. In this regard, reliance was placed on the decision of the Supreme Court in the case of Bombay Dying & MFG. Co. Ltd. vs. Bombay Informal Action Group & Ors. (Para 90 and
91) reported in (2006)3 SCC 434.
It was strongly urged on behalf of the plaintiffs opposite parties that in the present case, the impugned order dated November 17, 2016 is a well reasoned order and cannot be said to be suffering for any legal infirmity as to call for any interference by this under Article 227 of the Constitution of India. According to Mr. Bhattacharya, once the application filed on behalf of the defendants tenants under Section 7(2) of the Act of 1997 was rejected by the learned Court below, their application under Section 151 of the Code for deposit of the entire admitted arrear rent was not maintainable and the same was rightly rejected by the learned Court below. Since the defendants' application under Section 151 was not maintainable the court committed no error of law in rejecting the application under Section 5 of the Limitation Act. On these grounds the plaintiffs opposite parties strongly pressed for dismissal of the revisional application.
I have considered the materials on record, as well the arguments advance by the learned counsel appearing for the respective parties.
Since, the decision in this revisional application is dependant upon the scope and effect of the provision contained in Section 7 of the Act of 1997 and, as such, I think it convenient to extract the said provision herein below:
"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 arears of rent, calculated at the rate at which it was last paid and upto 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.
(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.
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."
Before the Act of 1997 came into force with effect from July 10, 2001, it was the Act of 1956 which was applicable for deciding a suit for eviction of monthly tenant whose tenancy was not governed by the Transfer Of Property Act, 1882. Section 17 of the Act of 1956 provided for the provisions when a tenant could get the benefit of protection against eviction. In this regard, the relevant provisions of section 17 of the Act of 1956 are also set out below:
"17. When a tenant can get the benefit of protection against eviction-
(1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in section 13, the tenant [shall, subject to the provisions of sub-section (2), within one month] of the service of the writ of summons on him [or where he appears in the suit or proceeding without the writ of summons being served on him, within one month of his appearance] [deposit in Court or with the Controller or pay to the landlord] an amount calculated at the rate of rent at which it was last paid, for the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of eight and one-third percent per annum from the date when any such amount was payable up to the date of deposit, and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate.
[(2) If in any suit or proceeding referred to in sub-section (1) there is any dispute as to the amount of rent payable by the tenant, the tenant shall, within the time specified in sub-section (1), deposit in court the amount admitted by him to be due from him together with an application to the court 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 such application, the court shall-
(a) 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, a preliminary order, pending final decision of the dispute, specifying the amount, if any, due from the tenant and hereupon the tenant shall, within one month of the date of such preliminary order, deposit in court or pay to the landlord the amount so specified in the preliminary order, and
(b) having regard to the provisions of this Act, make, as soon after the preliminary order as possible, a final order determining the rate of rent and the amount to be deposited in court or paid to the landlord and either fixing the time within which the amount shall be deposited or paid or, as the case may be, directing that the amount already deposited or paid be adjusted in such manner and within such time as may be specified in the order.] [(2A) Notwithstanding anything contained in sub-section (1) or sub-section (2), on the application of the tenant, the Court may, by order-
(a) extend the time specified in sub-section (1) or sub-section (2) for the deposit or payment of any amount referred to therein;
(b) ..........
(2B) No application for extension of time for the deposit or payment of any amount under clause (a) of sub-section 2(a) shall be entertained unless it is made before the expiry of the time specified therefor in sub-section (1) or sub-section (2), and no application for permission to pay in instalment under clause (b) of sub-section (2A) shall be entertained unless it is made before the expiry of the time specified in sub-section (1) for the deposit or payment of the amount due on account of default in the payment of rent].
[(3) If a 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 allowed under clause (a) of sub-section (2A), or fails to deposit or pay any instalment permitted under clause (b) of sub-section (2A) within the time fixed therefor, the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit]. (4)..................."
From a reading of the above provisions it is clear that the provisions contained in Section 7(1) and Section 7(2) of the Act of 1997 are similar to those contained in Section 17(1) and Section 17(2) of the Act of 1997, except that Section 17(2) of the Act of 1956 provided for passing of a preliminary order and the final order by the Court adjudicating the arrear rent payable by the defendant tenant, if any.
Section 17(2) of the Act of 1956, provided that when the defendant tenant raised any dispute with regard to arrear amount of rent claimed by the plaintiff landlord in the suit, he had to file an application for adjudication by the Court of the arrear rent payable by him to the plaintiff landlord and if, the defendant tenant admitted any amount as arrear rent, along with his application under the said provision he had to deposit the said admitted arrear rent. In a case where the defendant tenant disputed the relationship of landlord and tenant between the parties till the said dispute was adjudicated under the said Section 17 (2), the tenant did not have any obligation to deposit the admitted arrear rent under Section 17 (1) of the Act of 1956 or along his application under section 17 (2) of the said Act.
While interpreting the provision contained in Section 17(2) of the Act of 1956, the Division Bench of this Court in the cases of Gunwantrai T. Kamdar (Supra) and Hindustan Industrial (Supra) had held that when a defendant tenant in a suit for eviction admits any part of the arrear rent claimed by the plaintiff landlord, in order to maintain an application for adjudication of arrear rent under Section 17(2) of the Act of 1956 he must make deposit, along with the application the entire admitted arrear rent. Since the provisions contained in Section 7(2) of the Act of 1997 are pari materia with those contained in Section 17(2) of the Act of 1956, both the said Division Bench decisions are squarely applicable and I find myself to be bound by the said decisions. From a reading of the unreported decisions of the learned Single Judge of this Court in the cases of Land & Bricks and Entertainments Ltd. (Supra) and M/s. Smart Enterprises (Supra) I find that the learned counsel appearing on behalf of the plaintiffs opposite parties was correct to submit that in the said cases the attention of the learned Single Judge was not drawn to the said Division Bench decisions of this Court in the cases of Gunwantrai T. Kamdar (Supra) and Hindustan Industrial (Supra).
Accordingly, I am unable to accept the contention raised by the petitioner in the present case on the basis of unreported decision in the cases of Land & Bricks and Entertainments Ltd. (Supra) and M/s. Smart Enterprises (Supra) and Gunwantrai T. Kamdar (Supra) and Hindustan Industrial (Supra).
Section 7(2) of the Act of 1997 has three parts. The first part provides for deposit of the admitted arrear rent by the tenant with the Court together with an application for determination of the rent payable. The second part of Section 7(2) of the Act of 1997 lays down that no deposit of the admitted arrear rent shall be accepted by the Court, unless the same is accompanied by an application for determination of the rent payable and the third part provides for the order to be passed by the Court adjudicating the arrear amount of rent payable by the defendant tenant, if any and the direction for payment of the arrear rent.
It is well settled canon of interpretation of statute that negative words are clearly prohibitory and are ordinarily used as a legislative device to make a provision of a statute imperative. If an authority for this view is looked for, the same can be found in the decisions of the Supreme Court in the cases of M. Pentiah vs. Veeramallappa reported in AIR 1961 SC 1107 and Mannalal Khetan vs. Kedarnath Khetan reported in AIR 1977 SC 536. It is also a settled principle of interpretation of statute that if different provisions are connected with the same word "shall", and if in respect to some of them the intention of legislature is clear that the word "shall" in relation to them must be given an obligatory meaning, it may indicate that with respect to other provisions also, the same construction should be placed. In this regard, reference may profitably be made to the decision of the Supreme Court in the case of R. B. Sugar Co. vs. Rampur Municipality reported in AIR 1965 SC 895. In paragraph 26 of the said decision it was held that when the word "shall" is used in the same provision governing two different matters, it cannot be given one meaning in so far as it relates to one matter and another meaning in so far as it relates to another matter.
In view of the settled principle of interpretation of statute, as discussed above when the word "shall" appearing in the second part of sub-section (2) of Section 7 of the Act of 1997 is imperative, the same word appearing in the first part of the said sub-section must also be given an imperative meaning.
Further, as argued by the plaintiffs opposite parties even it be accepted for the sake of argument clause (a) of sub-section (2A) of Section 17 of the Act of 1956 conferred the power on the Court to extend the time for deposit of rent under sub-sections (1) and (2) of Section 17, but while enacting the Act of 1997 the legislature has consciously omitted to incorporate any provision in Section 7 of the Act similar to sub-section (2A) or (2B) of the Act of 1956.
When the requirement of deposit of the admitted arrear rent, along with an application under Section 7(2) of the Act of 1997 is mandatory, the application filed by the petitioner and the defendant no. 4, the only contesting defendants without deposit of the admitted arrear rent was not maintainable.
In the instant case the approach of the learned Court below to reject the application filed on behalf of the defendants under Section 7 (2) of the Act of 1997 was correct and I do not find any merit in the arguments advanced on behalf of the petitioner to assail the first impugned order dated November 17, 2016. The decisions cited on behalf of the petitioner in the case of Sri Mrinmoy Sarkar (supra) has no application in the present case. Accordingly, the challenge of the petitioner in this revisional application against the first impugned order dated November 17, 2016 fails. The consequence of the dismissal of the application under Section 7(2) of the Act of 1997 by the first impugned order dated November 17, 2016 shall be binding on all the defendants in the eviction suit.
Let us now consider as to whether, in the present case, the application on behalf of the petitioner and the defendant no. 4 under Section 151 of the Code for deposit of the admitted arrear rent from January, 2008 to March, 2013 was maintainable. I have already upheld the decision of the learned Single Judge rejecting the application filed on behalf of the defendants in the suit under Section 7 (2) of the Act of 1997 on the ground of their default to deposit the admitted arrear rent. The time for filing an application under Section 7 (2) of the Act of 1997 has been stipulated in the said section itself read with Section 7 (1) of the Act. Of course as held by the decision of the Division Bench of this Court in the case of Subrata Mukherjee vs. Bishakha Das reported in (2012) 3 CHN (Cal) 423. Section 5 of the Limitation Act applies to an application under Section 7 (2) of the Act of 1997. It is settled law that when a statute provides for a specific remedy in a particular case the Court does not have any inherent power under Section 151 of the Code for granting the same remedy. Therefore, in the instant case when the application of the petitioner and the defendant no.4 under Section 7 (2) of the Act of 1997 was rejected for not being accompanied by the deposit of the arrear rent their subsequent application under Section 151 of the Code for deposit of admitted arrear rent was not maintainable. Though it is a fact that the learned Court below had first rejected the prayer of the petitioner for condonation of delay in filing the said application under Section 151 of the Code but when the main application under Section 151 of the Code was not maintainable, I do not find any reason to interfere with the impugned second order of the learned Court below rejecting the application under Section 5 of the Limitation Act.
For all the foregoing reasons, there is no merit in the present revisional application and the same is stands rejected.
However, there shall be no order as to costs.
Let urgent certified copies of this judgment, if applied for, be made available to the parties upon compliance with all requisite formalities.
(Ashis Kumar Chakraborty, J.)