Calcutta High Court (Appellete Side)
Subhas Ghosh vs Bibhupada Dey on 10 November, 2016
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
1 19 10.11.2016
mb In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side C.O. 3848 of 2016 Subhas Ghosh
-Vs.-
Bibhupada Dey Mr. Tanmoy Chowdhury, Ms. Deblina Chattaraj ...for the petitioner Mr. Abhijit Ray, Ms. Rafat J. Akram ...for the opposite party This revisional application is directed against the order dated August 24, 2016 passed by the learned Judge, 5th Bench, Presidency Small Causes Court at Calcutta in Ejectment Suit No. 614 of 2010 (hereinafter referred to as the "said suit").
The petitioner in this application is the defendant in the said suit filed by the opposite party claming, inter alia, a decree for recovery of possession of the suit property from the petitioner. The said suit has been filed by the opposite party under the provisions contained in the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as the "Act of 1997") and by the impugned order dated August 24, 2016, the learned Court below rejected the 2 application filed by the petitioner, as the defendant in the said suit, under Section 7(2) of the said Act of 1997.
From the records it appears that prior to the said suit, in the year 1994, the opposite party had filed an ejectment suit, which was subsequently numbered as Ejectment Suit No. 1725 of 2000 (hereinafter referred to as the "first suit"), claiming a decree for eviction of the petitioner from the suit property. The said first suit was filed by the opposite party under the provisions of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the "Act of 1956"). In the said first suit, the petitioner filed an application under Sections 17(2) and 17(2A)(b of the Act of 1956 praying for, inter alia, determination of the arrear rent and payment thereof by instalments. However, without deciding the said application filed by the petitioner under Sections 17(2) and 17(2A)(b) of the Act of 1956, the learned trial Judge decreed the said first suit. The petitioner challenged the said decree for eviction passed by the learned trial Judge by preferring an appeal, being Title Appeal No. 25 of 2006, before the learned Judge, 6th Bench, City Civil Court at Calcutta. In the said appeal the petitioner filed an application for obtaining stay of operation of the impugned eviction decree passed by the learned trial Judge. In the said application, the learned Judge, 6th Bench, City Civil Court at Calcutta directed that in order to obtain stay of operation of the 3 said execution decree, the petitioner has to deposit Rs.400/- per month, as occupation charges of the suit property during the pendency of the said appeal. The petitioner continued to deposit the monthly occupation charges in respect of the suit property at the said rate of Rs.400/-, per month in the concerned department of the learned City Civil Court at Calcutta. Ultimately, the said Title Appeal No. 25 of 2006 was dismissed. Thereafter, the petitioner approached this Court by filing the second appeal, being S.A.T. 1559 of 2007. By an order dated May 15, 2007 the Division Bench of this Court set aside the judgments and decrees passed by the learned Courts below on the ground that the learned trial Judge had passed the eviction decree without disposing of the application filed by the petitioner under Sections 17(2) and 17(2A)(b) of the Act of 1956. The Division Bench of this Court restored the eviction suit to its original file and number and directed the learned trial Judge to consider the said pending application under Sections 17(2) and 17(2A)(b) of the Act of 1956 and decide the other issues framed in the suit. After the first suit was remanded to the learned trial Court, by an order dated December 03, 2007, the learned trial Judge disposed of the said application filed by the petitioner under Sections 17(2) and 17(2A)(b) of the Act of 1956 by holding that the petitioner defaulted in payment of rent for the months of June 1994, July 1994, 4 October 1994, December 1994, January 1995, February 1995, March 1995, May 1995, June 1995 and July 1995, that is, for ten months at the rate of Rs.80/-, per month, and directed the petitioner to pay Rs.800/-, together with interest at the rate of 10% per annum, amounting to Rs.880/- within seven days from the date of the order. The petitioner, as the defendant in the said first suit, complied with the said order dated December 03, 2007 and continued to pay the current rent. By the judgment dated December 20, 2007 passed in the said first suit, the learned trial Judge held that since the petitioner, as the defendant in the suit, deposited the arrear rent in terms of the said order dated December 03, 2007 and is also continuing to pay the current rent, he is entitled to the benefit under Section 17(4) of the Act of 1956. With regard to the other grounds for eviction urged by the opposite party in the said first suit, the learned trial Judge found the same could not be proved by the opposite party. Accordingly, by a decree dated December 20, 2007 the learned trial Judge dismissed the said first eviction suit. The opposite party landlord did not challenge the said decree dated December 20, 2007 passed by the learned trial Judge.
In the year 2010, the opposite party landlord filed the said suit before the learned Judge, 5th Bench, Presidency Small Causes Court at Calcutta claiming, a decree for eviction against the 5 petitioner on the ground of default of payment of rent since January 2008. This suit was filed under the provisions of the Act of 1997, which came into force with effect from July 10, 2001. In the said suit, the petitioner, as the defendant, filed an application under Section 7(2) of the Act of 1997, alleging that he is not a defaulter of payment of rent. In the said application, it was the case of the petitioner that even after dismissal of the first suit, he continued to deposit Rs.400/- per month, and, as such, there was no default on his part to pay rent.
By the impugned order, the learned Court below rejected the said contention of the petitioner and held that after dismissal of the said appeal, being Title Appeal No. 25 of 2006, the petitioner had no scope to deposit any occupation charges in respect of the suit property before the learned City Civil Court at Calcutta and he has defaulted in payment of rent at the rate of Rs.80/- per month from the month of January, 2008 to December, 2010. On this ground, by the impugned order the learned Court below disposed of the said application filed by the petitioner under section 7(2) of the Act of 1997 directing the petitioner to deposit the arrear rent for the period from January 2008 to December 2010, at the rate of Rs.80/- per month, along with statutory interest at the rate of 10%, per annum amounting to Rs.3168/- within thirty days from the date of the order. The learned Court below further directed the 6 petitioner to deposit the current rent month by month within the 15th day of each succeeding month.
Having considered the facts of the case, as discussed above, I find no infirmity in the impugned order passed by the learned Court below. Once the said appeal, being Title Appeal No. 25 of 2006, was disposed of by the learned Judge, 6th Bench, City Civil Court at Calcutta, the petitioner had no reason to deposit the amount of Rs.400/-, per month on account of occupation charges in the learned City Civil Court at Calcutta and the learned Court below rightly held that the petitioner has defaulted in payment of rent since January 2008 to December 2010.
For all the reasons as aforesaid, the revisional application, being C.O. 3848 of 2016, stands rejected.
There shall, however, be no order as to costs.
Urgent certified website copy of this order, if applied for, be made available to the parties upon compliance of all requisite formalities.
(Ashis Kumar Chakraborty, J.)