Calcutta High Court (Appellete Side)
Sri Saurav Das vs Sri Kartick Dutta And Others on 17 July, 2019
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No.606 of 2018
Sri Saurav Das
Vs.
Sri Kartick Dutta and others
For the petitioner : Mr. Abhijit Roy,
Mr. Tanmay Kumar Dey
For the opposite party : None
Hearing concluded on : 11.07.2019
Judgment on : 17.07.2019
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Sabyasachi Bhattacharyya, J.:‐
1.Despite previous service, none appears on behalf of the opposite parties. As such, the matter is decided ex parte.
2. The plaintiff in an eviction suit under the West Bengal Premises Tenancy Act, 1997 has preferred the instant revisional application. Initially the defendants/opposite parties filed applications under Section 7(1) and Section 7(2) respectively of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as "the 1997 Act").
3. The trial court adjudicated such applications, thereby determining the arrears payable by the defendants/opposite parties, on June 7, 2008.
4. Pursuant to such order, the opposite parties went on depositing the amounts as directed therein for some time. However, no deposit was made by the opposite parties for the period from March, 2015 to July, 2015. Consequently, the petitioner filed an application under Section 7(3) of the 1997 Act, for striking out the defence of the opposite parties on the ground of such non‐deposit.
5. On the other hand, the defendants/opposite parties took out an application under Section 151 of the Code of Civil Procedure for permission to deposit the rent for 3 the months of March, 2015 to July, 2015 and also to deposit the rent month by month in the suit.
6. By the impugned order dated June 9, 2016, the trial court allowed the opposite parties to deposit the rent for the months of March, 2015 to July, 2015 and consequentially to reject the petitioner's application under Section 7(3) of the 1997 Act.
7. Although the present application under Article 227 of the Constitution of India has been filed much after the passing of the impugned order, the petitioner has furnished sufficient explanation in paragraph nos. 8 to 10 of the same for the delay in preferring the same, which is accepted by this court and the application entertained.
8. A crucial question raised by the petitioner is, whether the trial court acted without jurisdiction in condoning the delay in depositing the belated amounts, despite the specific bar to the power of the court to do so, as stipulated in the proviso to Section 7(2) of the 1997 Act.
9. Section 7 of the said Act is set out below:
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"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 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.
(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, 5 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 o 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. "
10. Learned counsel for the petitioner relies on a judgment of a co‐ordinate bench of this court, reported at 2018(1) ICC 37 (Cal) [Omprakash Thakur vs. Bhola Shaw], 6 wherein it was held that the court had no jurisdiction to exercise any discretion to extend time to deposit the defaulted rent when the defendant did not deposit the admitted amount of monthly rent within the prescribed time and the provisions contained in Section 7(3) became operative in such a case.
11. Learned counsel also cites another co‐ordinate bench judgment reported at 2018(1) ICC 108 (Cal) [Mithun @ Akhtar Ali vs. Sk. Aziz Haque and others], wherein it was held, inter alia, that applicability of Section 5 of the Limitation Act, 1963 can have no place in respect of non‐deposit of current rent under Section 7(1) of the 1997 Act.
12. Learned counsel for the petitioner cites another judgment, reported at 2014(2) WBLR (Cal) 598 [Sri Arup Kumar Atta vs. Sri Susanta Kumar Ghosh], where a learned Single Judge of this court had held, upon considering the division bench judgment of Subrata Mukherjee vs. Bisakha Das reported at (2012) 1 CLT 1, that the time‐limit as fixed after adjudication under Section 7(2) of the 1997 Act was inflexible.
13. It is settled law that once the defendant/tenant avails of an extension of time, as contemplated under the proviso to Section 7(2), no further extension can be granted. It is also stipulated in the proviso that only a single extension of time 7 may be granted, that too within an outer limit of two months from the date of expiry of one month after the passing of the order under Section 7(2).
14. Subrata Mukherjee (supra) made the provisions of Section 5 of the Limitation Act, 1963 applicable to both Section 7(1) and Section 7(2) of the 1997 Act.
15. However, it has been the consistent view of this court, in consonance with the said division bench judgment as well as the subsequent position taken by the Apex Court, that the defendant/tenant can file an application for extension of time to deposit/acceptance of belated deposits, as well as deposit such amount, at the most within two months after the expiry of one month from the order passed under Section 7(2).
16. Thereafter, there is no scope of the court to extend the time for such deposit.
17. The case at hand could be seen from any of the following three perspectives:
(i) The subsequent default committed by the defendants/tenants had no connection with the provisions of Section 7(1) or Section 7(2) of the 1997 Act and were subsequent defaults, after the tenants started complying with the order under Section 7(2);8
(ii) The default was one under Section 7(2), since the tenants failed to comply with the direction passed under the said provision, despite initially having complied with the same; or
(iii) The tenants initially complied with the direction under Section 7(2) and went on so complying; the subsequent default could be seen as one under Section 7(1)(c) of the 1997 Act, as an independent default having no connection with the order passed under Section 7(2).
18. Taking the third option first, the present case is not one of default under Section 7(1), since the said provision merges with an order under Section 7(2), in the event the latter is invoked by the tenant. Once a dispute is raised as to the arrears of rent, there remains no scope for deposit under Section 7(1), since Section 7(1) operates only when there is no dispute as to the arrears and the tenants are required only to deposit at the admitted rate. The rate of rent referred to in Section 7 (1) (c) is the admitted rent contemplated under the said sub‐section.
19. However, upon the arrears being disputed under Section 7(2), an adjudication under the said provision takes within its fold all the arrears, including those contemplated under Section 7(1). As such, after an order is passed under Section 7(2), there is no further scope of deposit under Section 7(1) of the 1997 Act. 9 Although sub‐section (2) of Section 7 has no provision for continuous deposit of current rent corresponding to Section 7 (1) (c), once a dispute is raised and decided under Section 7 (2), even the current deposit becomes coloured in the hue of such adjudication, and the 'rate' envisaged in Section 7 (1) (c) becomes the rate decided under sub‐section (2). This would be evident from sub‐section (1) itself, which mentions that it is 'subject to' sub‐section (2). Hence, scenario (iii) mentioned above is not applicable to the present case. The default committed cannot fall within the scope of Section 7 (1) after the Section 7 (2) adjudication.
20. Taking up next perspective (i), as mentioned above, it could not be said that the subsequent defaults were independent of Section 7, since an order under Section 7(2) was already operative and is supposed to continue to do so till disposal of the suit. Once the provisions of Section 7(2) are invoked by the tenants, the order passed under such provision continues till a terminus is reached by disposal of the suit and there is nothing in the statute to indicate that the operation of such an order can come to an end at any point of time prior to the disposal of the suit, unless, of course, the defence of the defendants is struck out under Section 7(3), rendering further deposits meaningless.
21. Moreover, in the event the tenant initially complies with an order passed under Section 7(2) and after some time stops doing so, construing such default to be 10 independent of Section 7(2) order would have disastrous consequences. Any and every unscrupulous tenant would then deposit the initial arrears directed under Section 7(2) and perhaps continues with a few current deposits after that, but thereafter stop such deposits altogether, pleading that a second default could not be committed in the same suit but only in a previous suit.
22. In such view of the matter, even the first situation is not applicable to the present case.
23. The sole remaining perspective is option no. (ii), which is that, although initially the tenants/opposite parties complied with the directions under Section 7(2), they did not continue to make the monthly deposits as contemplated in Section 7(1)
(c), as merged in Section 7 (2).
24. Although Section 7(2) does not contemplate a monthly deposit but merely the deposit of arrears as adjudicated under the said provision and Section 7(1)(c) only stipulates that the tenant shall thereafter continue to pay to the landlord month by month a sum equivalent to the rent at the rate at which it was deposited initially, once an adjudication under Section 7(2) takes places, the rate of rent becomes crystallized and could not be equated with the admitted rate as mentioned in Section 7(1)(c).
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25. Hence, if the tenants invoke the provisions of Section 7(2) and an order is passed thereunder, adjudicating the arrears, implicit in which is also the rate of rent, the tenants are immediately governed by the proviso to Section 7(2), limiting a further extension of time to a single instance and two months after the passage of one month from the date of such order.
26. Even the current deposits, after an adjudication under Section 7(2), have to be governed in terms of the adjudication under Section 7(2). Having availed or failed to avail of the extension contemplated in the proviso to Section 7(2), which after such adjudication starts operating in respect of sub‐section (1) as well, as merged in sub‐section (2), the tenant cannot thereafter fall back upon Section 5 of the Limitation Act and claim that a subsequent default was under Section 7(1) and not Section 7(2). Subrata Mukherjee's Case (supra) also lays down, in effect, that Section 5 of the Limitation Act is inapplicable after the expiry of the period stipulated in the proviso to Section 7 (2) of the 1997 Act.
27. It is evident from the scheme of Section 7 of the 1997 Act, that sub‐section (1) contains no such proviso as accompanies sub‐section (2). Therefore, in the event a tenant fails to avail of the proviso within the stipulated time, it will be deemed that, having chosen an adjudication under Section 7(2), there is no further scope for extension of time to deposit even the current rent‐equivalent. 12
28. Once Section 7(1) is waived by invoking Section 7(2), and the outer time‐limit for extension of time under the proviso to the latter provision has expired, the tenant cannot be permitted to fall back upon sub‐section (1) and seek the benefit of Subrata Mukherjee (supra) by asking for a further extension, thereby defeating the entire scheme of the proviso to sub‐section (2).
29. In such view of the matter, even if the default was in respect of a subsequent current deposit and not arrears strictly in terms of sub‐section (2) of Section 7, having chosen to give a go‐by to sub‐section (1) and invoke sub‐section (2) and having availed of the benefit of sub‐section (2), the defendants/opposite parties could not invoke Section 5 of the Limitation Act afresh, thereby seeking a lease of life specifically prohibited by statute. Giving such an opportunity would frustrate the scheme of the statute and tantamount to the tenant being given a relief indirectly, which she/he could not get directly in law.
30. In the circumstances, the trial court acted without jurisdiction in accepting the belated deposits of the opposite parties and refusing to strike out the defence of the opposite parties against delivery of possession.
31. Accordingly, C.O. No.606 of 2018 is allowed, thereby setting aside the impugned order and refusing to accept the belated deposits made by the opposite parties. 13 The defence of the opposite parties against delivery of possession is struck out under Section 7(3) of the West Bengal Premises Tenancy Act, 1997.
32. The petitioner shall communicate this order to the court below as well as to the tenants‐opposite parties and/or their advocate in the court below.
33. There will be no order as to costs.
34. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
( Sabyasachi Bhattacharyya, J. )