Calcutta High Court (Appellete Side)
Naba Kumar Samanta vs Narayan Chandra Saha And Another on 2 May, 2024
Author: Shampa Sarkar
Bench: Shampa Sarkar
May 2, 2024
Sl. No.16
Court No.19
s.biswas
CO 4287 of 2023
Naba Kumar Samanta
vs.
Narayan Chandra Saha and another
Mr. Tuhin Subhra Raut
... for the petitioner
Mr. Krishna Das Poddar
... for the opposite parties
1. The revisional application arises out of order
dated September 4, 2023 passed by the learned
Chief Judge, Presidency Small Causes Court at
Calcutta in Ejectment Suit No.56 of 2022. The
learned court rejected an application for recalling
of the order dated December 15, 2022.
2. By the order dated December 15, 2022, the
learned court had dismissed the application
under Section 7(1) of the West Bengal Premises
Tenancy Act, as "not pressed" at the request of
the petitioner's advocate.
3. Thereafter, an application dated December 20,
2022 was filed under Section 151 of Code of Civil
Procedure, seeking recall of the earlier order.
The said application came up for hearing on
September 4, 2023. The learned court rejected
the said application and held that question of
recalling the order would not arise as there was
nothing on record to show that the learned
advocate acted beyond the instructions of the
2
petitioner. Moreover, ignorance of law was no
ground for recalling of the order.
4. The petitioner himself filed an application under
Section 7(1) of the Act and did not press the
same. Allowing the restoration of the said
application upon recalling of the order dated
December 15, 2022 would amount to bringing
life back to an application at the belated stage,
which could not be entertained by the court. The
court could not grant permission to deposit
current rent as they had not been paid at the
appropriate time. The court further noted that
apart from the application for recall, not a single
averment had been made that the tenant would
undertake to deposit the entire arrear from the
date of filing of the suit till the date of restoration
of the application. The revival of the application
under Section 7(1) of the Act, would not enure to
the benefit of the tenant.
5. The court further held that in view of the ratio in
Bijay Kumar Singh -vs- Amit Kumar Chamaria
reported in (2019) 10 SCC 660, belated deposit of
rent could not be allowed. Thus, the application
for recall was rejected.
6. Such order has been challenged before this
court. The learned advocate for the petitioner
submits that the petitioner could not be
3
penalised for the mistake of his learned
advocate. The petitioner being a layman was not
acquainted with the law and as such, did not
understand the consequence of the action of the
learned advocate. The moment he came to know
of such order, an application was filed for recall.
The petitioner was not in arrear as all the pre-
suit rents had been deposited with the learned
rent controller.
7. Learned advocate further submits that all that
was being prayed for was for restoration of the
application under Section 7(1) of the said Act, so
that the issue with regard to the deposit of
current rent could be decided during
adjudication of the said application.
8. Learned advocate for the opposite
parties/landlords submits that the application
for recall was not maintainable. The petitioner
himself prayed for dismissal of the application as
he did not want to press the same. The learned
court accordingly, on such prayer, dismissed the
said application as "not pressed". Thus, the
question of recall would not arise. It was on the
petitioner's own volition that the application
under Section 7(1) of the Act was dismissed.
9. It is next submitted that the application may
have been filed on time, but was not moved
4
before December 15, 2022. On December 15,
2022, it was dismissed as 'not pressed' at the
instance of the petitioner.
10. Heard the parties. First and foremost, whether
the petitioner instructed the learned advocate to
take steps or whether the learned advocate acted
beyond the scope of the petitioner's instructions,
are matters of trial. Secondly, the learned court
has categorically observed that there was no
prayer to allow deposit of rent with an expression
of a willingness to do so. The petitioner did not
indicate that he wanted to deposit the current
rent, from the date of filing of the suit.
11. Revival of the application under Section 7(1) of
the Act would not change the situation.
Admittedly there has been default in payment of
the current rent (i.e. rent from the month of
receipt of summons till date). The petitioner's
submission is that upto February 2022, the rent
had been deposited with the rent controller. After
the filing of the suit the petitioner did not deposit
the current rent month by month in terms of
Section 7(1)(c). The application under Section
7(1) was filed with the following prayer:-
"Your petitioner, therefore, humbly prays
that your honour be pleased to pass
necessary relating to disposal of this
application along with the disputes
involved in the application along with the
5
disputes involved in the application under
section 7(2) for ends of justice."
12. Here too, there is no prayer seeking deposit of
current rent. The petitioner raised a dispute with
regard to rate of rent. Such dispute is pending
hearing in the application under Section 7(2) of
the Act. Filing an application under Section 7(2)
of the said Act, by raising a dispute with regard
to quantum of arrear rent, rate of rent, or
relationship between the parties, is subject to
compliance of Section 7(1) of the said Act.
13. The provision of Section 7(1) is quoted 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 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 the rate."
14. On perusal of the provisions of Section 7 of the
said Act, it is apparent that the tenant can get
protection under the said Act only in compliance
6
of what has been set out therein. Clause (a) of
Sub-Section 1 of Section 7 provides for payment
of admitted arrears by the tenant along with 10%
interest either to the landlord or depositing the
same in court, where there is no dispute at all. In
the factual matrix of the present case, there is a
dispute with regard to quantum. In terms of
Clause (b), the payment has to be made within
one month of the service of summons on the
tenant or where he appears in the proceedings
without the summons being served on him
within one month of his appearance and in terms
of Clause (c), the tenant thereafter is required to
pay to the landlord or deposit in court month-by-
month a sum equivalent to the rent by the 15th
of each succeeding month.
15. Sub-Section (2) of Section 7 refers to a scenario
where there is dispute with regard to the rent
payable, arrears or relationship. Even then, there
is a bounden duty upon the tenant to deposit
with the court or pay to the landlord the amount
of admitted arrear due from him as also the
current rent. The application for determination of
the dispute cannot be filed without complying
with Section 7(1)(c) also. The proviso under
Section 7(2) permits extension only once and the
period of such extension cannot exceed two
7
months. Two years have passed since the
dismissal of the application under Section 7(1),
on the prayer of the petitioner.
16. Thus, as soon as the petitioner filed the
application under Section 7(1) of the Act, the
petitioner, even if not in arrears, was bound by
law to deposit the current rent month by month
every month, within 15th of each succeeding
month. Such intention to pay is not available
from the application. No such payment was not
made. The application was filed within time, but
was not moved up to December 15, 2022. On the
other hand, the petitioner sought dismissal of
the said application. Thus, this court does not
find the action of the petitioner be bona fide.
There is no reflection of any intention or attempt
of the petitioner to deposit the current rent,
which the petitioner was enjoined by law to
deposit, even assuming that he was not in
arrears. The deposit of current rent was not
subject to adjudication under either Section 7(1)
or 7(2) of the Act. Section 7(1) would have been
formally allowed by the learned court
immediately on filing, so that the current rent
could be deposited. No such prayer was made.
Instead, the tenant prayed for dismissal of the
application as not pressed. Allowing such
8
application to be adjudicated once again would
be a futile exercise as in the decision of the Amit
Kumar Chamaria (supra), the Apex Court held
that compliance of Section (1) was mandatory
and the court could not condone the delay in
payment of arrear rent. The Hon'ble Apex Court
held as follows:-
"19. Sub section (1) of Section 7 of the Act
relieves the tenant from the ejectment on the
ground of non-payment of arrears of rent if he
pays to the landlord or deposits it 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. 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.
20. Therefore, sub section (1) deals with the
payment of arrears of rent when there is no
dispute about the rate of rent or the period of
arrears of rent. Sub section (2) of the Act comes
into play if there is dispute as to the amount of
rent including the period of arrears payable by
the tenant. In that situation, the tenant is obliged
to apply within time as specified in sub section
(1) that is within one month of the receipt of
summons or within one month of appearance
before the court to deposit with the Civil Judge
the amount admitted by him to be due. The
tenant is also required to file an application for
determination of the rent payable. Such deposit
is not to be accepted, unless it is accompanied by
an application for determination of rent payable.
Therefore, sub section (2) of the Act requires two
things, deposit of arrears of rent at the rate
admitted to be due by the tenant along with an
application for determination of the rent payable.
If the two conditions are satisfied then only the
Court having regard to the rate at which rent
was last paid and for which tenant is in default,
may make an order specifying the amount due.
After such a determination the tenant is granted
one month's time to pay to the landlord the
9
amount which was specified. The proviso of the
Act, limits the discretion of the court to extend the
time for deposit of arrears of rent. The extension
can be provided once and not exceeding two
months.
21. Sub section (3) provides for consequences of
non-payment of rent i.e. striking off the defence
against the delivery of the possession and to
proceed with the hearing of the suit. Such
provision is materially different from sub sections
(2A) and (2B) which was being examined by this
Court in B.P. Khemka. Sub sections (2A) and (2B)
of Section 17 of 1956 Act confer unfettered power
on the court to extend the period of deposit of
rent, which is circumscribed by the proviso of sub
sections (2) and (3) of Section 7 of the Act.
Therefore, the provisions of sub section (2) are
mandatory and required to be scrupulously
followed by the tenant, if the tenant has to avoid
the eviction on account of non-payment of arrears
of rent under Section 6 of the Act. There is an
outer limit for extension of time to deposit of
arrears of rent in terms of the proviso to sub
section (2) of Section 7 of the Act. The
consequences flowing from non-deposit of rent
are contemplated under sub section (3) of Section
7 of the Act. Therefore, if the tenant fails to
deposit admitted arrears of rent within one
month of receipt of summons or within one month
of appearance without summons and also fails to
make an application for determination of the
disputed amount of rate of rent and the period of
arrears and the subsequent non-payment on
determining of the arrears of rent, will entail the
eviction of the tenant. Section 7 of the Act
provides for a complete mechanism for avoiding
eviction on the ground of arrears of rent, provided
that the tenant takes steps as contemplated
under sub section (2) of Section 7 of the Act and
deposits the arrears of rent on determination of
the disputed amount. The deposit of rent along
with an application for determination of dispute
is a pre-condition to avoid eviction on the ground
of non-payment of arrears of rent. In view
thereof, tenant will not be able to take recourse to
Section 5 of the Limitation Act as it is not an
application alone which is required to be filed by
the tenant but the tenant has to deposit admitted
arrears of rent as well."
10
17. In the matter of Debasish Paul & Anr. vs Amal
Boral reported in 2023 INSC 925, the Hon'ble
Apex Court held as follows:-
"16. We have no doubt over the
proposition that though generally the
Limitation Act is applicable to the
provisions of the said Act in view of Section
40 of the said Act, if there is a lesser time
period specified as limitation in the said
Act, then the provisions of the Limitation
Act cannot be used to expand the same. It
is in this context that in Nasiruddin6 case,
it has been mentioned that the real
intention of the legislation must be
gathered from the language used. Thus,
the reasoning in Bijay Kumar Singh7 case
cannot be doubted more so as the
requirement is for a tenant to file an
application, but he has to deposit the
admitted arrears of rent as well, which has
certainly not been done.
17. We are of the view that a combined
reading of the two statutes would suggest
that while the Limitation Act may be
generally applicable to the proceedings
under the Tenancy Act, the restricted
proviso under Section 7 of the said Act,
providing a time period beyond which no
extension can be granted, has to be
applicable. The proviso is after Sub-
Section (2) of Section 7 but Sub-Section (2)
of Section 7 in turn refers to Sub-Section
(1) implying the application of the proviso
to Sub-Section (1) too.
18. There is also a larger context in this
behalf as the Tenancy Acts provide for
certain protections to the tenants beyond
the contractual rights. Thus, the
provisions must be strictly adhered to. The
proceedings initiated on account of non-
payment of rent have to be dealt with in
that manner as a tenant cannot occupy
the premises and then not pay for it. This
is so even if there is a dispute about the
rent. The tenant is, thus, required to
deposit all arrears of rent where there is no
dispute on the admitted amount of rent
and even in case of a dispute. The needful
has to be done within the time stipulated
and actually should accompany the
application filed under Sub-Sections (1) &
11
(2) of Section 7 of the said Act. The proviso
only gives liberty to extend the time once
by period not exceeding two months.
19. The respondent neither paid the rent,
nor deposited the rent by moving the
application nor deposited it within the
extended time as stipulated in the proviso.
The mere allegation of absence of correct
legal advice cannot come to the aid of the
respondent as if such a plea was to be
accepted it would give a complete license
to a tenant to occupy premises without
payment of rent and then claim that he
was not correctly advised. If the tenant
engages an advocate and abides by his
advice, then the legal consequences of not
doing what is required to be done, must
flow.
18. This court in the matter of Smt. Binika Thapa
(nee Rai) & Anr. Vs Smt. Damber Kumari
Mukhia & Anr. decided in C.O. 64 of 2023.
The relevant paragraph are quoted below:-
"14. The ratio decided in Amit Kumar
Chamariya (supra) applies to all
situations, when the tenant fails to comply
with the provisions of Section 7 (1) and 7
(2) of the said Act, within the time frame as
prescribed under Section 7 (1), itself. The
law declared in Amit Kumar Chamariya
(supra) extends to such point and the
subsequent decision in Debasish Paul
(supra) agrees with the ratio of the
decision in Amit Kumar Chamariya
(supra). The decision is a binding
precedent upon all courts, be it the trial
court as well as High Court.
***
16.We proceed to discuss the ratio in Amit Kumar Chamariya (supra). On institution of a suit by the landlord for eviction on any of the grounds referred to in Section 6 of the said Act, the tenant, subject to the provisions of sub-section (2) of the Section 7, was liable to 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 12 payment was made, together with interest at the rate of 10% per annum. Such payment or deposit was to be made within one month from the service of summons on the tenant or when the tenant appeared in the suit without summons being served, within one month from his appearance. Thereafter, the tenant was enjoined by law, to continue to pay to the landlord or deposit with the civil judge a sum equivalent to the rent at that rate, month by month within 15th of each succeeding month. In case of any dispute as to the amount of rent payable by the tenant, the tenant was liable to deposit with the civil judge, within the time specified in the sub- section, the amount admitted by him to be due from him together with an application for determination of the rent payable. No such deposit could be accepted unless it was accompanied by an application for determination of the rent payable. On receipt of the application, the civil judge, having regard to the rate at which the rent was last paid and the period for which default may have been made by the tenant, determine the dispute and pass an order within a period not exceeding one year, specifying the amount, if any, due from the tenant and thereupon the tenant was liable to pay to the landlord within one month from the date of such order, the amount so specified in the order along with the monthly rent at the rate so determined.
17.Moreover, the decision in Bahadur Singh Kathotia (supra) was rendered without consideration of the decision of the Division Bench in Calcutta Gujarati Education Society versus Sri Ajit Naraya Kapoor passed in C.O.175 of 2017, the Hon'ble Division Bench answered the reference in view of conflicting decisions of the Hon'ble Division Benches of this Court. The question formulated by the then Acting Chief Justice was as follows:-
"Does the view of the Division Bench of this court that section 5 of the Limitation Act can be applied to condone delay in making applications under sub-sections (1) and (2) of section 7 of the West Bengal Premises Tenancy Act, 1997, as held in the Subrata Mukherjee case 13 (supra), survive in view of the decisions of the Hon'ble Supreme Court in the Nasiruddin case (supra), the Ashoke Kumar Mishra case (supra), Manjushree Chakraborty case (supra)."
18.The reference was whether Section 5 of the Limitation Act could be applied to condone delay in filing an application under sub-section (1) and sub-section (2) of Section 7 of the said Act and whether the decision in Subrata Mukherjee's case survived in view of the decision in Nasiruddin's case, Ashok Kumar Mishra's case and Manjushree Chakraborty's case. Upon taking note of the judgment of the Amit Kumar Chamariya (supra) the Division Bench held that the Limitation Act, 1963 had no application in respect of an application by a tenant made under Section 7 of the said Act, for determining the arrear rent, as the Act of 1997 mandated that deposit of rent or where there is dispute regarding quantum of rent, deposit of admitted rent along with application for determination of rent must be made by the tenant within the time specified under the said section. In relation to a suit for eviction, where compliance with the deposit mandate would enable the tenant to seek protection against delivery of possession, compliance with the deposit mandate was essential. No assertive right of the tenant could be enforced. Section 6 of the said Act had a non-obstante clause on application of other laws regarding eviction and Section 40 of the said Act would be applicable, subject to the limitations provided in the said Act. The deposit of admitted rent, raising a dispute regarding quantum of rent, and filing an application for determination of rent, were to be made by the tenant within the specified time and could only be extendable as per the proviso to Section 7(2) of the said Act and the deposit mandate had to be followed by the tenant for protection from eviction.
19.If for any reason the tenant failed to pay/deposit rent month by month as laid down under Clause (c) of Sub-Section 1 of Section 7 of the Act or as directed by the 14 court under Sub-Section 2 of Section 7, the tenant could get further extension of time for two months, to make such deposit.
20.In Debasish Paul (supra), the Hon'ble Apex Court held that the Limitation Act, could not be used to expand the time prescribed by the legislation and the reasoning in Amit Kumar Chamariya (supra) could not be doubted. More so, the requirement for the tenant to file an application and to deposit the admitted arrear rents as well, were binding, which had not done in the said case.
21.The decision in Amit Kumar Chamariya (supra), is the law governing the scope of Section 7 of the said Act. The question was framed in Paragraph 5 thereof. The same is binding on all courts. The facts of the case do not make an iota of difference with the points of reference. In Amit Kumar Chamariya (supra) the Hon'ble Apex Court finally interpreted Nasiruddin (supra), in paragraph 16 thereof. B.P. Khemka (supra) was also considered and distinguished in paragraph 18 and the Hon'ble Apex Court arrived at the conclusion that Section 5 of the Limitation Act would not apply in case the benefit of protection from eviction was sought by the tenant under Section 7 of the said Act. A conjoint reading of the paragraphs 19, 20 and 21 of Amit Kumar Chamariya (supra) would categorically reflect such finding.
22.Section 40 of the said Act makes the Limitation Act applicable to the provisions of the said Act, subject to other inbuilt periods of limitation prescribed. The Hon'ble Apex Court discussed the provision of law and held that Section 5 of the Limitation Act would not apply if the tenant failed to comply with the mandatory provisions of Section 7.
23.According to the ratio in Amit Kumar Chamariya (supra), the period of one month as mentioned in paragraph 7(1)(b) was treated to be the inbuilt period of limitation making Section 40 of the said Act inapplicable."
1519. Under such circumstances, the order impugned does not call for any interference. Even the proviso to Section 7(2) of the Act would not apply in this case as the petitioner did not pay current rent for a single month since the institution of the suit on and from March 2020, (going by his own version that rent was deposited with the rent controller upto February 2020) till date. The period of extension covered by the proviso to Section 7(2) of two months also, cannot be applied in this case. There has been multiple defaults in depositing current rent, month after month, since March 2020. Such default cannot be condoned by allowing belated deposit of accumulated rent for the past two years.
20. Under such circumstances, the order impugned does not call for any interference. The revisional application stands dismissed.
21. All the parties are directed to act on the basis of the server copy of the order.
(Shampa Sarkar, J.)