Calcutta High Court (Appellete Side)
Smt. Bina Devi Binani vs Ramesh Kumar Gupta (Since Deceased) By ... on 14 May, 2015
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashis Kumar Chakraborty
C.O. 1847 of 2013
Smt. Bina Devi Binani
Vs.
Ramesh Kumar Gupta (since deceased) by Smt. Kiran Gupta
For the petitioner : Mr. Srijib Chakraborty
For the opposite party : Mr. Aniruddha Chatterjee
Mr. Soumya Roy Chowdhury
Mr. Lopamudra Moitra
Heard on: - April 02 & 06 and May 05 & 08, 2015.
Judgment on: May 14, 2015.
Ashis Kumar Chakraborty, J.
This revisional application has been filed by the plaintiff landlord in Ejectment Suit No. 153 of 2004 pending before the learned Civil Judge (Junior Division), First Court at Alipore. The plaintiff/petitioner filed, the said ejectment suit under the provisions contained in West Bengal Premises Tenancy Act, 1997 (hereinafter referred to "the 1997 Act") against Ramesh Kumar Gupta, since deceased (hereinafter stated as "the original opposite party") claiming his eviction from the suit property being Flat No. 20 of Premises No. 23A /76A, Diamond Harbour Road, New Alipore, Block-E, Kolkata.
In the plaint filed in the ejectment suit, the petitioner stated that the monthly rent which was payable by the original opposite party in respect of the suit property was Rs. 1,100/- per month. One of the grounds of eviction stated in the plaint was that the opposite party defaulted in payment of rent since January, 1993. The original opposite party filed an application, under Section 7(2) of the said 1997 Act, before the Additional Rent Controller. During pendency of the said application, the power to decide an application under Section 7(2) of the said Act vested in the learned Civil Judge. By an order dated June 15, 2011, the learned Civil Judge found that the admitted rate of rent in respect of the suit property is Rs. 1,100/- per month and held that Rs. 90,200/- was the arrear amount of rent for eighty two months. By the said order, the learned Civil Judge directed the original opposite party to pay the said sum of Rs. 90,000/- together with statutory interest at the rate of ten per cent (10%) thereon, amounting to Rs. 1,21,394/- to the petitioner by two equal monthly installments of Rs. 60,697/- payable by July 30, 2011 and September 15, 2011. The original opposite party did not make payment of any of the two said installments. On April 20, 2012, the original opposite party filed an application, under Section 151 of the Code of Civil Procedure, 1908 before the Civil Judge, praying for an order condoning the delay of nine months in depositing of arrear rent and to allow him to deposit the said amount of Rs. 1,21,394/- along with the statutory interest. In the said application it was the case of the original opposite party that his Advocate did not inform him of the said order dated June 15, 2011 until December, 2011; in the month of December, 2011 he was taken ill and even after recovering from his illness, he could not immediately deposit the said amount of Rs. 1,29,394/-. The plaintiff/petitioner contested the said application and disputed the grounds alleged by the original opposite party in his application. The plaintiff petitioner specifically contended the learned Civil Judge lacked the jurisdiction to entertain the said application under Section 151 of the Code. The plaintiff petitioner also contended that in view of the original opposite party not paying the arrear rent, in terms of the said order dated June 15, 2011, a right has accrued in her favour under sub- Section (3) of Section 7 of the 1997 Act for striking out the defence of the opposite party defendant against delivery of possession. By an order dated July 25, 2012, the learned Civil Judge allowed the application of the original opposite party under Section 151 of the Code of Civil Procedure. In this revisional application the plaintiff petitioner has challenged said order dated July 25, 2012. During the pendency of this application, the original opposite party/tenant Ramesh Kumar Gupta died and he was substituted by his wife in this application.
Mr. Srijit Chakraborty, learned Advocate appearing in support of the revisional application contended that in view of the mandatory provision contained in sub-Section (2) of Section 7 of the 1997 Act, the impugned order passed by the learned Civil Judge is vitiated by patent illegality and the learned Civil Judge had no jurisdiction to entertain, far less to pass the impugned order.
Mr. Chakraborty submitted that from a meaningful reading of the provisions contained in sub-Section (2) of Section 7 of the 1997 Act it is evident that if a tenant disputes the amount of rent payable by him/her to the landlord, the tenant has to 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 within the time stipulated under Section 7(1)(b). He contended that as per sub-Section (2) of Section 7 of the 1997 Act, the tenant has to pay the amount directed by the learned Civil Judge within one month from the date of the order and the proviso to sub-Section (2) of Section 7 of the Act confers the power upon the learned Civil Judge to extend the time to make payment of the arrear rent amount only once, that too for a period of two months from the date of payment fixed under the original order passed the Court. According to Mr. Chakraborty, if a tenant intends to obtain an extension of the period for payment of the amount directed by learned Civil Judge by the original order under sub-Section (2) of Section 7, the tenant has to file such extension application on or before the date of expiry of the time period fixed by the original order and there is no scope for filing any application subsequently either under Section 151 of the Code of Civil Procedure or under Section 5 of the Limitation Act, 1963 praying for condoning the delay in filing such extension application. In support of his contention Mr. Chakraborty relied on a decision of the Supreme Court in the case of Nasiruddin and Ors. Vs. Sitaram Agarwal reported in (2003) 2 SCC 577 as also a decision of the Division Bench of this Court in the case of Subrata Mukherjee vs. Bisakha Das reported in (2012) 1 WBLR (Cal) 595=(2012) 1 CLT 1.
In the case of Nasiruddin and Ors. Vs. Sitaram Agarwal reported in (2003) 2 SCC 577 the Supreme Court was called upon to decide the questions whether the word "shall" used in sub-Section (4) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as "the Rajasthan Act") is mandatory or directory and whether an application under Section 5 of the Limitation Act, 1963 is applicable where there is a default in depositing the rent by the tenant under sub-Section (4) of Section 13 of the said Act. Mr. Chakraborty submitted that the provisions contained in sub-Section (2) of Section 7 of the said Act of 1997 is, pari materia with the provisions contained in sub-Section (4) of Section 13 of the Rajasthan Act. Mr. Chakraborty pointed out that in the said decision the Supreme Court held that the word "shall" used sub-Section (4) of Section 13 of Rajasthan Act is imperative and mandatory and the provisions contained in Section 5 of the Limitation Act cannot be made applicable for obtaining extension of time to deposit the rent by the tenant under sub-Section (4) of Section 13 of the Act. He further submitted that following the said decision of the Supreme Court, the Division Bench of this Court, in the case of Sri Subrata Mukherjee (supra), held that the time limit fixed for payment to the landlord after adjudication of the dispute with regard to the rate of rent with the extended time limit, as mentioned in the proviso to sub-Section (2) of Section 7 of 1997 Act, is inflexible and this time limit cannot be extended by the Court under any other circumstances, naturally, and the provisions of Section 5 the Limitation Act will not be applicable.
However, Mr. Aniruddha Chatterjee, learned Advocate appearing for the opposite party, raised serious objection to the maintainability of this revisional application. He first submitted that the order impugned in the revisional application was passed on July 25, 2012, directing original opposite party to deposit the amount determined by the said order dated June 15, 2011 along with the statutory interest within seven days and in terms thereof, the original opposite party deposited the entire amount before this revisional application was filed. Mr. Chatterjee further submitted that proviso to sub-Section (2) of Section 7 of the 1997 Act, confers power on the Civil Judge to extend the time to deposit of the adjudicated amount of arrear rent once and in this case the impugned order was passed by the learned Civil Judge, in terms of proviso to sub-Section (2) of Section 7 of the said 1997 Act as the first extension. According to him there is no time limit fixed for filing an application before the Civil Judge and as such there is no infirmity in the impugned order.
Mr. Chatterjee cited the decision of the Supreme Court in the case of Salem, Advocate, Bar Association vs. Union of India reported in (2005) 6 SCC 344, and placed reliance on paragraph 41 to 43 of the said decision where the Supreme Court held that even after the amendment of Section 148 of the Code inserting the words "not exceeding 30 days total" by the amendment Act of 1999, Section 148 deserves to be read down to mean that where sufficient cause exists or events are beyond the control of a party, the Court would have inherent power to extend time beyond 30 days. Since this revisional application involves interpretation of the provisions contained in Section 7(2) and 7(3) of the said Act of 1997 it would be apposite to set out Section 7 of the 1997 Act.
"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 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]."
Since Mr. Chakraborty founded his submission on the strength of the decision of the Supreme Court in the case of Nasiruddin and Ors. Vs. Sitaram Agarwal (supra) and according to him, the provisions contained in sub-Sections (4) and (5) Section 13 of the Rajasthan Act are pari materia with the provisions contained in sub-Sections (2) and (3) Section 7 of the said Act of 1997 it would also be convenient to set out the provisions contained in Section 13(4) of the Rajasthan Act as quoted by the Supreme Court in the said decision.
"13. (4) The tenant shall deposit in court or pay to the landlord the amount determined by the court under sub-section (3) within fifteen days from the date of such determination, or within such further time, not exceeding three months, as may be extended by the court. The tenant shall also continue to deposit in court or pay to the landlord, month by month, the monthly rent subsequent to the period up to which determination has been made, by the fifteenth of each succeeding month or within such further time not exceeding fifteen days, as may be extended by the court, at the monthly rate at which the rent was determined by the court under sub-section (3).
(5) If a tenant fails to deposit or pay any amount referred to in sub-section (4), on the date or within the time specified therein, the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit."
In the said case it was a suit for eviction and the learned trial Judge in terms of the provisions contained in Section 13(3) of the Rajasthan Act determined the provisional rent and by an order dated September 09, 1991 directed the defendant tenant to deposit arrears as also current rent in Court, but the tenant did not deposit the same within the period specified by the said order dated September 09, 1991; the landlord filed an application under Section 13(5) of the said Act, whereafter on or about November 09, 1993 the tenant filed an application for condonation of delay to pay the arrear rent. The learned Trial Judge, in that case, rejected the said application of the tenant, inter alia, on the ground that the same was not filed within time.
Considering the provisions contained in sub-Section (4) of Section 13 of the said Rajasthan Act, in paragraph 13 of the said decision in the case of Nasiruddin (supra) the Supreme Court held as follows:
"The word "shall", which is ordinarily imperative in nature, has been used in sub-section (4) of Section 13. The power of the court has also been limited to the extent that it can extend time for such deposit not exceeding three months and so far as the deposit of monthly rent is concerned, by fifteen days. The court's power, therefore, is restricted. In case the tenant deposits the provisional rent as determined by the court within the stipulated period the tenant is relieved by the eviction decree."
In the said decision the Supreme court further held that wherever the special Act provides for extension of time or condonation of default, the court possesses the power therefor, but where the statute does not provide either for extension of time or to condone the default in depositing the rent within the stipulated period, the court does not have the power to do so. The Supreme Court held that in the absence of such provisions in the said Rajasthan Act, the Court did not have the power to either extend the period to deposit the rent or condone the default in depositing the rent. In the said decision of Subrata Mukherjee (supra), the Division Bench of this Court held that the provision of 13(4) of the Rajasthan Act and provision 7(2) of the 1997 Act are similar.
In the instant case, by an order dated June 15, 2011 the learned civil Judge disposed of the application of the opposite party tenant under sub-Section (2) of Section 7 of the Act of 1997 by directing the defendant tenant to deposit the arrear rent of eighty two months together with statutory interest amounting to Rs. 1,21,394/- by two equal installments and the last installments was directed to be paid on September 15, 2011. Admittedly, the original opposite party tenant did not pay any money to the landlord petitioner within September 15, 2011. On April 20, 2012, the original opposite party tenant filed the application under Section 151 of the code praying condonation of delay on nine months in depositing of arrear rents and to allow him to deposit the aforesaid amount of Rs. 1,21,394/- along with statutory interest.
The question that falls for consideration whether a defendant tenant who has failed to deposit the arrear rent in terms of the order passed by the learned civil Judge under sub-Section (2) of Section 7 of the said Act of 1997 can file an application, after the expiry of the last date of payment directed by a Civil Judge, for extending the time for payment of arrear rent either under Section 151 of the Code or under Section 5 of the Limitation Act, for condonation of delay.
In this case, neither Mr. Chakraborty nor Mr. Chatterjee referred to any provision of the West Bengal Premises Tenancy Act, 1956 which stood repealed by Section 45 of the said Act of 1997. They restricted their respective submissions to the provisions contained in Section 7 of the 1997 Act.
As already noted in the said case of Nasiruddin (supra) the learned trial Judge in terms of the provisions contained in Section 13(3) of the Rajasthan Act determined the provisional rent and by an order dated 09.09.1991 directed the respondent to deposit the arrears as also current rent in Court. Admittedly, the tenant did not deposit the same within the period specified therein and on 09.11.1993 the tenant filed an application for condonation of delay and extension of time to deposit the arrear rent. The learned trial Judge dismissed the application of the tenant on the ground that the same was not filed within time. The tenant challenged this order of rejection of the trial Court before the High Court in revision. The High Court allowed the revisional application of tenant by holding that Section 5 of the Limitation Act would be applicable in a case where the tenant could not deposit the rent within the time pursuant to the order passed under Section 13(3) of the Act. The Full Bench of the High Court held that the word "shall" has to be interpreted as "may" and it is discretion of the Court to condone the delay in default of payment/deposit or rent within the specified period. Section 13(4) of the Rajasthan Act has already been set out above. However, the Supreme Court held that the word "shall" used in Section 13(4) of the said Act is imperative in nature, and set aside the decision of the High Court allowing the application of the tenant by condoning the delay in filing the application for extension of time to pay the arrear rent directed by the said order dated 09.09.1991.
The aforesaid decision of the Supreme court was followed by the Division Bench of this Court in the case of Subrata Mukherjee (supra). Further, in the case of Arup Kumar Atta vs. Susanta Kumar Ghosh reported in [(2013) 3 CLJ (Cal) 556] a learned Single Judge of this Court also upheld a decision of a learned Civil Judge (Junior Division), first Court, Alipore rejecting an application filed by a tenant, after the expiry of the period for payment of arrear rent as directed by the original order passed under sub-Section (2) of Section 7 of the 1997 Act, praying for extension of time to pay the arrear rent. In paragraph 8 of the said decision the learned Single Judge, held that Section 7(2) of the 1997 Act lays down the time limit within which the arrears of rent as determined by the Court are to be paid or deposited in the Court and the maximum time limit of extension that the Court may be granted in, two months from the date of the order.
The object of providing various time limits, including the time limit of one year for disposal of an application for adjudication of the arrear rent by the civil Judge is for speedy disposal of all eviction suits. The question that falls for consideration in this case depends on the content and purport of the proviso to sub-Section (2) and sub-Section (3) of Section 7 of the 1997 Act. Proviso to sub-Section (2) of Section 7 of the 1997 Act provides for extension of time that may be granted by the civil Judge only once and the period of such extension shall not exceed two months. From the bare reading of the proviso to sub-Section (2) of Section 7 of the 1997 Act it is evident that the Civil Judge has the jurisdiction to extend the time granted by the original order under said sub-Section (2) only once and such extension shall not exceed two months. Now the word "extension" must relate to the date fixed by the original order under sub-Section (2) of Section 7. Thus, the only conclusion that can be arrived with regard to proviso to sub-Section (2) of Section 7 of the said 1997 Act that an application for extension of time to deposit the arrear rent within the period fixed by the original order passed by the Civil Judge must be made on or before the date of expiry of the original period fixed by the civil Judge.
This conclusion is more obvious in view of sub-Section (3) of Section 7 of the 1997 Act providing that if the defendant tenant fails to deposit the time specified under sub-Section (1) or sub-Section (2) or within such extended time as may be granted (which obviously mean the extension of two months under the proviso to sub-Section (2)), the civil Judge shall order striking out of the defence of the tenant against delivery of possession to be struck out and the hearing of the suit shall be proceeded with. The consequence under sub-Section (3) of Section 7 of the 1997 Act of striking out defence against delivery of possession is by operation of law and for that there is no necessity of any application by the plaintiff landlord. Once again the word "shall" appearing in sub-Section (3) of Section 7 of the 1997 Act is to be construed as mandatory.
The accrual of the right in favour of the plaintiff landlord under sub-Section (3) of Section 7 of the 1997 Act for striking out defence of the defendant tenant against delivery of possession is by operation of law and if the contention of Mr. Chatterjee that a tenant can file an application for obtaining extension of time to make payment under proviso to sub-Section (2) of Section 7, even after the expiry of the period stipulated by the original order under sub-Section (2), then the right of the plaintiff landlord under sub-Section (3) of Section 7 would be depended upon the discretion of the civil Judge and even in a given case, the tenant may apply for extension even after expiry of one year after the stipulated period fixed by the original order under sub-Section (2)or long thereafter. Any interpretation of the proviso to sub-Section (2) of Section 7 of the 1997 Act accepting such contention of Mr. Chatterjee would be absurd and shall be contrary to express provision contained in sub-Section (2) of Section 7 of the 1997 Act. Further the contention of Mr. Chatterjee cannot sustain in view of the decision of the Supreme Court in the case of Nasiruddin (supra) and the aforesaid decisions of this Court cited by Mr. Mukherjee. For all these reasons,, I find the civil Judge exercising jurisdiction under Section 7 of the 1997 Act does not have the jurisdiction to entertain any application of a tenant defendant, in terms of the proviso to sub-Section (2) thereof, praying for extension of time to deposit the amount adjudicated by the original order passed under the said sub-Section, after the expiry of the period stipulated by the original order. In these circumstances, I do not find the decision of the Supreme Court in the case of Salem Bar Association (supra) cited by Mr. Chatterjee dealing with Section 148 of the code of Civil Procedure has any application in this case. Accordingly, I have no hesitation to hold that the impugned order dated July 25, 2012 passed by the learned Civil Judge (Junior Division), Alipore in Title Suit No. 304 of 2009 is without jurisdiction and void. Therefore, the ground urged by Mr. Chatterjee that the said order was already acted upon has no merit.
In the instant case, before parting with the matter, it may also be noted that in the instant case, the petitioner had filed the said application under Section 151 of the code, resulting in passing of the impugned order, by making allegations that his advocate had not informed him of the passing of the order dated June 15, 2011 passed by the Civil Judge and that he had fallen ill. However, the petitioner disclosed no documentary evidence in support of his allegation that he had any grievance against his advocate for not communicating the said order dated June 15, 2011. The petitioner even did not disclose any document in support his alleged illness. In these circumstances, the said allegations of the petitioner are nothing but bald allegations and the learned Civil Judge could not have passed the impugned order by accepting such bald allegations of the petitioner. For all the aforesaid reasons, the revisional application being C.O. 1847 of 2013 is allowed and the order dated July 25, 2012 passed by the learned Civil Judge (Junior Division), Alipore in Ejectment Suit No. 153 of 2004 stands set aside However, there shall no order as to costs.
[ Ashis Kumar Chakraborty, J.] Later After the judgment was delivered Mr. Roy Chowdhury appearing for the opposite party prayed that liberty may be given to the opposite party to withdraw Rs. 1,29,394/- deposited by her husband with the trial Court. Such prayer is allowed and the opposite party is granted liberty to approach the learned Civil Judge (Junior Division) First Court at Alipore to withdraw the said sum.
[ Ashis Kumar Chakraborty, J.]