Calcutta High Court (Appellete Side)
Amit Dasgupta & Anr vs Smt. Shanti Shaw @ Devi & Anr on 3 February, 2017
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
1 017 In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side C.O. 4614 of 2016 Amit Dasgupta & Anr.
-Vs.-
Smt. Shanti Shaw @ Devi & Anr.
Mr. Souradipta Banerjee, Mr. Naba Krishna Das, Mr. Subhojit Mullick ... for the petitioners Mr. Jahar Chakraborty, Mr. Shubham Khan ...for the opposite parties This revisional application is directed against the orders dated November 28, 2016 and December 09, 2016 passed by the learned Judge, 4th Bench, Presidency Small Causes Court at Calcutta in Ejectment Suit No. 80 of 2011. By the first impugned order dated November 28, 2016 the learned Court below rejected the application filed by the revisional petitioners, the defendants in the ejectment suit, under Section 151 of the Code of Civil Procedure, 1908 (in short "the Code") praying for, permission to deposit the arrear rent from December 2013 to December 2016. By the second impugned order dated December 09, 2016 the learned Court below rejected the applications filed by the petitioners for recalling of the order dated November 23, 2015 directing striking out their defence against delivery of possession and to adduce evidence in the ejectment suit.
The facts giving rise to the present revisional application are that in February, 2011 the opposite parties filed the above suit, against the petitioners, claiming decrees for their eviction from the suit property and for mesne profits. The eviction suit was filed under the provisions of the West 2 Bengal Premises Tenancy Act, 1997 ( in short, "the Act of 1997"). The writ of summons in the suit was duly served upon the petitioners. The petitioners belatedly filed their written statement in the suit. There was also delay on the part of the petitioners to file applications under Sections 7(1) and 7(2) of the Act of 1997 and the learned Court below rejected the prayer of the petitioners for condonation of delay in filing the said applications. However, by order passed in C.O. 2799 of 2012, a learned Single Judge of this Court set aside the order of the learned Court below and condoned the delay in filing the applications under Sections 7(1) and 7(2) of the Act of 1997 subject to payment of costs. By order dated January 03, 2014 the learned Court below disposed of the application filed by the petitioners under Section 7(2) of the Act of 1997 by directing the petitioners to pay arrear rent from November 1996 to November, 2013 amounting to Rs.13,951/-, together with the statutory interest at the rate of 10%, per annum within a period of one month from the date of the said order. Subsequently, the learned Court below, at the instance of the petitioners extended the time for deposit of the aforementioned arrear rent together with statutory interest till April 03, 2014. The petitioners even did not deposit the arrear rent, together with statutory interest within April 03, 2014 and filed an application for recalling of the order dated January 03, 2014, which was rejected by the learned Court below on June 03, 2014. The petitioners challenged the order dated June 03, 2014 by filing a revisional application, being C.O. 3223 of 2014, before this Court. By order dated February 20, 2015 a learned Single Judge of this Court disposed of the revisional application, C.O. 3223 of 2014 by extending the time for deposit of the aforementioned arrear rent, together with statutory interest accrued thereon, within thirty days from the date of the said order subject to payment of costs assessed at Rs.20,000/- (Rupees Twenty Thousand only) by the petitioners to the opposite parties within March 06, 2015. The petitioners, however, did not comply with the said order dated February 20, 2015 passed by this Court. They did not pay the 3 costs assessed at Rs. 20,000/-, nor did they deposit the arrear rent. However, by an ex parte order dated on April 02, 2015, the learned Court below extended the time for deposit of the arrear rent, together with statutory interest by the petitioners. The petitioners complied with the said order dated April 02, 2015 which was a nullity and deposited the arrear rent from November, 1996 to November 2013 together with statutory interest. As stated hereinafter, the said deposit of arrear rent by the petitioners were invalid deposits. The petitioners, however, did not deposit the arrear rent from December, 2013. The opposite parties, as the plaintiffs in the ejectment suit, filed an application under Section 7(3) of the Act of 1997 for striking out the defence of the petitioners in the ejectment suit against delivery of possession which was rejected by the learned Court below by order dated June 09, 2015. The opposite parties challenged both the said orders dated April 02, 2015 and June 09, 2015 by filing a revisional application, being C.O. 2180 of 2015, before this Court. By order dated September 07, 2015 a learned Single Judge of this Court disposed of the said revisional application by setting aside both the orders dated April 02, 2015 and June 09, 2015 passed by the learned Court below. Thus, said deposit of the arrear rent from November, 1996 to November, 2013 by the petitioner became invalid deposition. By order dated February 19, 2016 the learned Court below allowed the application filed by the opposite parties under Section 7(3) of the Act of 1997 by striking out the defence of the petitioners in the eviction suit. On February 19, 2016 the learned Court below passed another order rejecting the application filed by the petitioner to allow him to deposit the arrear rent from December, 2013. The petitioners challenged the said second order dated February 19, 2016 before this Court in the revisional application, being C.O. 1287 of 2016 but the same was rejected by order dated August 02, 2016 on merit. Therefore, the said order dated February 19, 2016 stood merged with the order dated August 02, 2016 passed by this Court.
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Thereafter, the opposite party no. 2 as PW-1 and the learned Advocate Commissioner as PW-2 adduced evidence and the petitioners were allowed to cross-examine each of them. At this stage, the petitioners filed an application before the learned Court below seeking permission to deposit the arrear rent from December 2013 to December, 2016. They also filed two further applications, one praying for recalling of the order dated November 23, 2015 and the other praying for leave to adduce evidence through their witness. By first impugned order dated November 28, 2016 the learned Court below rejected the application of the petitioners to deposit the arrear rent from December 2013 to December 2016. By second impugned order dated December 09, 2016 the learned Court below rejected the applications of the petitioners praying for recalling of the order dated November 23, 2015 and for leave to adduce evidence, respectively.
Assailing the impugned orders Mr. Souradipta Banerjee, learned advocate appearing for the petitioners contended that the learned Court below committed an error of law in passing the first impugned order dated November 28, 2016 refusing to allow the petitioners to deposit the arrear rent, from December, 2013 to December, 2016 together with statutory interest thereon. According to him, when the petitioners are ready to deposit the arrear rent from December, 2013 to December, 2016 the learned Court below ought to have recalled the order dated November 23, 2015 striking out the defence of the petitioners against delivery of possession. He next contended that although the application filed by the opposite parties under Section 7(3) of the Act of 1997 has been allowed and the petitioners' defence against delivery of possession has been struck out, but the learned Court below further committed an error of law in not allowing the petitioners, as the defendants in the eviction suit, to adduce evidence with regard to the validity of the notice under Section 6(4) of the Act of 1997. In support of such contention, Mr. Banerjee placed reliance on the decision of the Supreme Court in the case of Modula India v. Kamakshya Singh Deo, reported in AIR 1989 SC 5 162 and a decision of the learned Single Judge of this Court in the case of Rameswar Kumar vs. Biweswar Lal reported in 86 CWN 72. It was urged that the power of the Court in an eviction suit to strike out the defence of the defendant tenant under Section 7(3) of the Act of 1997 is same as was conferred under the previous West Bengal Tenancy Act of 1956 (in short "the Act of 1956") and as such, the decision of the Supreme Court in the case of Modula India(supra) and the decision of this Court in the case of Rameswar Kumar (supra) are applicable in the present case covered by the Act of 1997.
On the other hand, Mr. Jahar Chakraborty, learned advocate appearing for the opposite parties submitted that in the instant case the decision of the learned Court below striking out the defence of the petitioners against delivery of possession has attained finality and there is no scope to allow the petitioners to deposit any arrear rent for any period. Therefore, according to him, the learned Court below committed no error of law in passing the first impugned order dated November 28, 2016. With regard to the second impugned order dated December 09, 2016 it was contended that it is settled law that once the defence of the defendant-tenant in a suit for eviction against delivery of possession stands struck out by the Court, there is no scope for recalling of the said order and the defendant tenant cannot adduce any evidence on his behalf, he can only cross- examine the plaintiff's witness. Mr. Chakraborty also relied on the decision of the Supreme Court in the case of Modula India (supra) cited by the petitioners. It was strenuously contended that in the said case of Modula India (supra) the Supreme Court rejected the contention raised on behalf of the appellant in the special leave petition that after striking out of his defence against delivery of possession under Section 17(3) of the Act of 1956 the defendant tenant can adduce evidence. It was further urged that in view of the decision of the Supreme Court in the case of Modula India 6 (supra) the decision of the learned Single Judge of this Court in the case of Rameswar Kumar (supra) stands impliedly overruled.
I have considered the materials on record, as well as the submissions of the learned advocates appearing for the respective parties. In the present case, as recorded above, the deposit of arrear rent, for the period from November, 1996 to November, 2013 by the petitioner is an invalid deposit, the defence of the petitioners against delivery of possession has been struck out by the learned Court below and such decision has attained finality between the parties. Subsequently, the petitioners filed application for deposit of arrear rent for the period from December, 2013 which was rejected by the learned Court below and as recorded above, the said order stood merged with the order dated August 02, 2016 passed by this Court in C.O. 1287 of 2016. The learned Court below, in fact, lacked the jurisdiction to entertain the said application of the petitioners. For all these reasons, I am unable to hold that the learned Court below has committed any error of law in passing the first impugned order dated November 28, 2016 and the challenge of the petitioners in this revisional application against the said order stands rejected.
So far as the petitioners' challenge against the first part of the second impugned order dated December 09, 2016 I do not find any merit in the same. As recorded above, when the deposit of arrear rent for the period November, 1996 to November, 2013 by the petitioners has been an invalid deposit, there is no scope for recalling of the order passed by the learned Court below directing striking out defence of the petitioners in the suit against delivery of possession.
The decision with regard to the challenge to the second impugned order dated December 09, 2016 rejecting the prayer of the petitioners to adduce evidence in the eviction suit is depended on the scope and effect of the provisions of Section 7(3) of the Act of 1997, which is extracted below:-
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"7(3). When a tenant can get the benefit of protection against eviction.- If the tenant fails to deposit or pay any amount referred to in sub-section (1) of sub-section (2) within the time specified therein or within such extended time as may be granted, the Controller shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the proceeding."
Since, both the parties have placed reliance on the decision of the Supreme Court in the case of Modula India(supra) dealing with the provisions contained in Section 17(3) of the Act of 1956 I think it appropriate to extract the said provision below:-
"17(3). If a tenant fails to deposit, or pay any amont referred to in sub-section(1) or sub- section(2) within the time specified therein or within such extended time as may be allowed under clause (a) of sub-section (2A), or fails to deposit or pay any instalment permitted under clause (b) of sub-section (2A) within the time fixed therefor, the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit."
It is no doubt that the objects and effects of striking out the defence of the defendant tenant against delivery of possession under Section 7(3) of the Act of 1997, as well as under Section 17(3) of the Act of 1956 are same and, as such, the ratio laid down by the Supreme Court in case of Modula India (supra) with regard to the effect of Section 17(3) of the Act, 1956 on the right of the defendant tenant, whose defence against delivery of possession has been struck out, at the trial of the suit would also be applicable to a case governed by Section 7(3) of the Act of 1997.
In the case of Modula India(supra), the Supreme Court after considering the provisions contained in Section 17(3) of the Act of 1956 held that when the defence of the defendant-tenant in a suit for eviction against delivery of possession has been struck out then the defendant would not be entitled to lead any evidence of his own, he can only cross-examine the plaintiff's witness and address argument on the basis of the plaintiff's case but his cross-examination cannot be permitted to travel beyond the very limited object of pointing out the falsity of the evidence of any witness of the plaintiff's. In view of the said decision of the Supreme Court in the case of Modula India 8 (supra), the decision of the learned Single Judge in the case of Rameswar Kumar (supra) that a defendant in a suit for eviction, whose defence, against delivery of possession has been struck out, can adduce evidence to challenge the notice of suit under Section 13(6) of the Act of 1956 is no more the good law.
In the present case, the petitioners have already been allowed to cross-examine the opposite party no. 2 PW-1, as well as the advocate commissioner, PW-2. Keeping in view the above principle laid down by the Supreme Court in the case of Modula India (supra) as recorded above, I do not find any error being committed by the learned Court below to pass the same impugned order dated December 09, 2016. Rejecting the prayer of the defendants petitioners to adduce evidence and the said decision of the learned Court below is upheld.
However, in the interest of justice the portion of the impugned order directing the defendants petitioners to pay costs assessed at Rs. 3,000/- (Rupees Three Thousand only) is set aside.
The second impugned order dated December 9, 2016 stands modified to the above extent. However, there shall be no order as to costs.
Certified website copies of the order, if applied for, be urgently made available to the parties on usual undertaking.
(Ashis Kumar Chakraborty, J)