Calcutta High Court (Appellete Side)
Amar Nath Gupta & Anr vs Ajit Kumar Nandi & Ors on 6 September, 2017
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
1
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashis Kumar Chakraborty
C.O. 3592 of 2015
Amar Nath Gupta & Anr.
-Vs.-
Ajit Kumar Nandi & Ors
For the petitioner : Mr. Kushal Chatterjee
For the opposite party nos. 1 & 2 : Mr. Rupak Ghosh,
Mr. Ayan Kumar Boral
Heard on : 24.08.2017, 01.09.2017
Judgement on : 06.09.2017
Ashis Kumar Chakraborty, J.
In this revisional application, the defendant no. 1(a) and 1(b) have challenged the orders dated February 07, 2012, September 18, 2012, September 05, 2014 and July 08, 2015 passed by the learned Judge, 4th Bench, Small Causes Court at Calcutta in Ejectment Suit No. 198 of 2009.
The brief facts giving rise to the present revisional application are that the predecessor of the revisional petitioners, Suraj Bali Gupta was the tenant under the opposite party nos. 1 to 3 herein, in respect of the suit property comprising three bedrooms, one drawing room, two bathrooms, one kitchen and two lavatories on the ground floor of premises No. 32/12, Beadon Street, Kolkata at monthly rental of Rs. 230/-. In the year 2009, the opposite party nos. 1, 2 and 3, 2 the plaintiffs filed the suit against the said Suraj Bali Gupta, claming a decree for eviction and recovery of possession of the suit property on, inter alia, the grounds of default in payment of rent, wrongful subletting of the suit property and reasonable requirement of the suit property. Subsequently, the present proforma opposite party no. 4, the subtenant was impleaded in the suit as the defendant no. 2. During the pendency of the suit, the defendant no. 1 Suraj Bali Gupta died leaving behind the present petitioners and the proforma opposite party no. 5 as his heirs and legal representatives, who were substituted in the suit as the defendant nos. 1(a), 1(b) and 1(c). The eviction suit was filed by the plaintiffs under the West Bengal Premises Tenancy Act, 1997 (in short "the Act of 1997") and the present petitioners, (hereinafter referred to as "the defendants") filed applications before the learned Court below under Sections 7(1) and 7(2) of the Act of 1997. In the application under Section 7(1) of the Act of 1997, the petitioners prayed for an order for allowing them to deposit monthly rent from the month of May, 2011 of Rs.230/- for the suit property in the learned Court below. In the application under Section 7(2) of the Act of 1997, the petitioners admitted to have defaulted in payment of rent for the suit property for certain months but, prayed before the learned Court below to ascertain as to whether there is any default on their part in payment of rent and to allow them to deposit the arrear rent, if any, by way of instalments at the rate of Rs.230/- per month. The plaintiffs contested the said application. By an order dated November 22, 2011, the learned Court below fixed the hearing of the application under Section 7(2) of the Act of 1997 on January 19, 2012. On January 19, 2012 the hearing of the said application was concluded by the learned Court below and the next date was fixed on February 07, 2012 for passing the final order in the said application. On February 07, 2012 the learned Court below disposed of the said application under Section 7(2) of the Act of 1997 by holding that there is default of payment of rent by the defendants for 330 months from July 1984 to December, 2011 3 and directed them to pay the arrear rent for the said 330 months, together with statutory rate of interest at the rate of 10% per annum amounting to Rs.83, 490/- within March 07, 2012. By the said order, the learned Court below also directed the defendants to pay the current rent, month to month within 15th day of each succeeding month and fixed the next date on March 07, 2012 for payment of the said arrear rent by the defendants and for framing of issues in the suit. On March 07, 2012, the defendants did not pay the said amount of Rs.83, 490/- to the plaintiffs but filed an application, under Section 151 of the Code of Civil Procedure, 1908 (in short "the Code") before the learned Court below praying for, an order that the said order dated February 07, 2012 be not given effect to for a further period of four weeks. In the said application, the defendants alleged that they were informed by their learned advocate that March 07, 2012 was the date for filing of the challans and they did not have any knowledge or information of the said order dated February 07, 2012. The said application was not verified by any of the defendants and it was their alleged Tadbidkar who verified the said application. By an order dated March 07, 2012 the learned Court below although rejected the prayer of the defendants in the said application but extended the time for payment of the said sum of Rs. 83,490/- by the defendants till April 02, 2014. The defendants did not challenge the said order dated March 07, 2012 before any higher forum. However, on March 26, 2012, the defendants filed another application before the learned Court below, under Section 151 of the Code, read with Section 5 of the Limitation Act for recalling of the said order dated February 07, 2012 alleging that they were informed by their advocate that hearing of the application under Section 7(2) of the Act of 1947 was fixed on March 07, 2012 and, as such, they were not present before the learned Court below on February 07, 2012. By order dated September 18, 2012 the learned Court below rejected the said application of the defendants for recalling of the order dated February 07, 2012. The defendants did not challenge the said order dated September 4 18, 2012, before any higher Court, nor did they make payment of the said sum of Rs.83, 490/-. Since the defendants did not pay the arrear rent, together with statutory rate of interest to the plaintiffs, as directed by the learned Court below in the application under Section 7(2) of the Act of 1997, the plaintiffs filed an application under Section 7(3) of the Act of 1997 for striking out of the defence of the defendants in the suit against delivery of possession. The said application was contested by the defendants. By order dated September 05, 2014 the learned Court below held that the defendants did not pay the arrear rent in terms of the order passed in the application under Section 7(2) of the Act of 1997 and, as such, allowed the said application of the plaintiffs-opposite parties under Section 7(3) of the Act of 1997 by striking out of the defence of the defendants against delivery of possession. None of the defendants challenged the said order dated September 05, 2014 before any higher Court. The defendants, however, on December 02, 2014 filed another application under Section 151 of the Code, before the learned Court below, for recalling of the orders dated February 07, 2012 and September 05, 2012. By Order dated July 08, 2015 the learned Court below rejected the said application. In the present revisional application, filed on September 21, 2015 the defendant nos. 1(a) and 1(b) have sought to challenge all the said orders dated February 07, 2012, September 18, 2012, September 05, 2012 and July 08, 2015.
At the very outset of hearing of this application Mr. Rupak Ghosh, learned advocate appearing for the opposite parties plaintiffs raised strong objection with regard to the maintainability of this revisional application. He contended that when the decision of the learned Court below in the application under Section 7(2) of the Act of 1997 had attained finality and the petitioners did not pay the arrear rent within the extended time fixed by the learned Court below, the plaintiffs were entitled to move the application under Section 7(3) of the Act of 1997 for striking out the defence of the defendants in the suit against delivery of possession. According to 5 him, when the application under Section 7(3) of the Act of 1997 was allowed, the challenge of the defendants in this revisional application against the orders dated February 07, 2012 and September 18, 2012 passed by the learned Court below is not maintainable. It was further submitted that when the learned Court below had no discretion to refuse to allow the application under Section 7(3) of the Act of 1997, even the defendants' challenge to the orders dated September 15, 2014 and July 08, 2015 passed by the learned Court below in this application is not maintainable.
In response to the contention of the opposite parties defendants with regard to the maintainability of the present revisional application against the orders dated February 07, 2012 and September 18, 2012 passed by the learned Court below, Mr. Kushal Chatterjee, learned advocate appearing for the petitioners submitted that as per the advice of their advocate, the defendants had filed consecutive applications under Section 151 of the Code for recalling of the order dated March 07, 2012 stating the fact that they were informed by the advocate that the hearing of the application under Section 7(2) of the Act of 1997 was fixed on March 07, 2012 for production of the rent control challans by them. It was contended that as they were not advised by their learned advocate, the defendants did not file any revisional application challenging the orders dated February 07, 2012 or September 18, 2012 before the learned Court below. Relying on the decision of the Supreme Court in the case of Parimal vs. Veena reported in (2011) 3 SCC 545, Mr. Chatterjee submitted that in the instant case, when the petitioners had made out a specific case before the learned Court below that the reason for their non-appearance in the hearing fixed on February 07, 2012 was that they were informed by their advocate that the hearing of the application under Section 7(2) of the Act of 1997 was fixed on March 07, 2012, the petitioners had established their honest and sincere intention to contest the said application constituting "sufficient cause" for recalling of the said order dated February 07, 2012. Therefore, according to Mr. Chatterjee, the 6 learned Court below committed a patent error of law in passing the order dated September 18, 2012 and the present revisional application challenging both the orders dated February 07, 2012 and September 18, 2012 is well maintainable. It was further contended that since the said orders dated February 07, 2012 and September 18, 2012 was patently illegal, the subsequent orders dated September 05, 2014 passed by the learned Court below allowing the plaintiffs' application under Section 7(3) of the Act of 1997 and, thereafter, rejecting the defendants' application for recalling of the said order dated September 05, 2014 are also vitiated by patent error of law in the face of the records and both the said orders are also liable to be set aside.
On the other hand, without prejudice to the contention raised with regard to the maintainability of this revisional application against the impugned orders, Mr. Ghosh appearing for the plaintiffs, (the opposite party nos. 1 to 3 of this application) submitted that even from a reading of the order dated January 19, 2012 it is clear that the hearing of the application of the defendants under Section 7(2) of the Act of 1997 was concluded before the learned Court below on that date and the next date was fixed by the learned Court below on February 07, 2012 only to pass the order in the said application. Therefore, according Mr. Ghosh, the case sought to be made out by the defendants in the two successive applications, the first praying for an order not to give effect to the said order dated February 07, 2012 for a period of four weeks and the second one praying for, recalling of the order dated February 07, 2012 were rightly rejected by the learned Court below and the defendants did not assail any of the said orders dated February 07, 2012, March 07, 2012 and September 18, 2012 before this Court. He further submitted that as held by this Court in the case of Bina Debi Binani vs. Ramesh Kumar Gupta reported in (2015) 3 Cal LT 384 (HC), the expression "shall" appearing in Section 7(3) of the Act of 1997 is imperative in nature and when the defendants did not pay of the arrear rent, together with the statutory interest amounting to Rs. 7 83,490/- fixed by the learned Court below under Section 7(2) of the Act of 1997 even within the extended time till April 04, 2012, the defence of the defendants in the suit against delivery of possession stood automatically struck out and the learned Court below committed no error of law in passing the order dated September 05, 2014 allowing the plaintiffs' application under Section 7(3) of the Act of 1997. It was argued for the plaintiffs that when the order dated February 07, 2012 as modified by the order dated March 07, 2012 had attained finality and the learned Court below also passed the order dated September 05, 2014 the defendants motivatedly and with the sole intention to delay the hearing of the suit filed the another application under Section 151 of the Code for recalling of the order dated February 07, 2012 and September 05, 2014 and the said application was rightly rejected by the learned Court below. Mr. Ghosh further submitted that no argument was made by the defendants to assail the order dated September 05, 2014 and July 08, 2015 passed by the learned Court below. It was strenuously urged on behalf of the plaintiffs that in the present case, the conduct of the defendants petitioners lacked bona fide and this Court should dismiss the revisional application with exemplary cost.
I have carefully considered the materials on record and the arguments advanced by the learned advocates appearing for the respective parties. From a bare reading of the orders dated November 22, 2011 and January 19, 2012 passed in the suit it is clear beyond any doubt that the application filed by the present petitioners, as the defendants under Section 7(2) of the Act of 1997 was fixed for hearing on January 19, 2012 and after hearing the submissions made on behalf of both the defendants, applicants and the plaintiffs, the learned Court below concluded the hearing of the said application on January 19, 2012 and the next date was fixed on February 07, 2012 for passing the order in the said application. Even from the order dated February 07, 2012 it is clear that the learned Court below considered the materials on records and arguments advanced in the 8 said application under Section 7(2) of the Act of 1997 on behalf of the respective parties and thereafter, held the defendants to be defaulter in payment of rent for 330 months from July, 1984 to December 2011. By the said order dated February 07, 2012 the learned Court below disposed of the said application filed by the defendants under Section 7(2) of the Act of 1997 by directing them to pay the arrear rent for 330 months, together with statutory interest at the rate of 10% amounting to Rs. 83,490/- within March 07, 2012. The defendants did not pay the said sum of Rs. 83,490/- within March 07, 2012 and by the order dated March 07, 2012 the learned Court below extended the time for the defendants to pay the said arrear rent together with statutory interest, till April 02, 2012. Thus, by the said order dated March 07, 2012 the learned Court below modified the order dated February 07, 2012. In any event, the defendants did not challenge any of the orders dated February 07, 2012 or March 07, 2012 or September 18, 2012 passed by the learned Court below, before any higher Court. They did not pay the said arrear rent, together with statutory interest even within the extended period of April 02, 2012. Thus, the decision of the learned Court below in the application under Section 7(2) of the Act of 1997 had attained finality. In these facts, as held by this Court in the case of Bina Debi Binani (supra) when the expression "shall" appearing in Section 7(3) of the Act of 1997 is imperative in nature, the defence of all the defendants, namely, the defendant nos. 1(a), 1(b) and 1(c) against delivery of possession stood struck out by operation of lawand the learned Court below was absolutely correct to pass the order dated September 05, 2014 allowing the application of the plaintiffs opposite parties under Section 7(3) of the Act of 1997. In this regard, it may be noted that this Court decided the case of Bina Devi Binani (supra) by following the decision of the Supreme Court in the case of Nasiruddin and Others vs. Sita Ram Agarwal, reported in (2003) 2 SCC 577. In the said case the Supreme Court also held that the Rent 9 Control Act is a welfare legislation not entirely beneficent enactment for the tenant but also for the benefit of the landlord.
Once the plaintiffs' application under Section 7(3) of the Act of 1997 was allowed by the learned Court below, the defendants could not maintain this revisional application to challenge any of the orders dated February 07, 2012 or September 18, 2012. The decision of the Supreme Court in the case of Parimal vs. Veena (supra) cited by the petitioners defendants have no application in the facts of the present case. Further, in the present case when the learned Court below had no discretion to reject the application filed by the plaintiffs under Section 7(3) of the Act of 1997, none of the order dated September 5, 2014 or July 08, 2015 passed by the learned Court below suffers from any infirmity to be interfered by this Court in revisional jurisdiction under Article 227 of the Constitution of India.
In the facts of the present case as discussed above, I find that the plaintiffs are justified in their contention that the defendants, the petitioners herein filed repeated applications under Section 151 of the Code with the sole motive to delay the hearing of the suit and the conduct of the petitioners lacks bona fide.
For all the foregoing reasons, the revisional application, being C.O. 3592 of 2015 stands dismissed, with costs assessed at Rs. 7,500/- (Rupees Seven Thousand Five Hundred only) to be paid by the revisional petitioners to each of the plaintiffs within September 20, 2017, failing which the plaintiffs shall be entitled to realise the said amount of cost by executing this order against the revisional petitioners.
Since the suit is pending disposal for a long time, the learned Court below is requested to dispose of the suit, being Ejectment Suit No. 198 of 2009 as expeditiously as possible, preferably 10 within the month of December, 2017 by way of day-to-day hearing and without granting any unnecessary adjournment to either of the parties.
Urgent certified copies of this judgment, if applied for, be supplied to the parties, subject to compliance with all requisite formalities.
(Ashis Kumar Chakraborty, J.)