Calcutta High Court (Appellete Side)
Sri Nanda Kishore Prosad vs Raj Kumar Ram on 24 May, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
F.M.A 1041 of 2012
Sri Nanda Kishore Prosad
Vs.
Raj Kumar Ram
For the Appellant: Mr. Debjit Mukherjee
Mr. Tanmoy Mukherjee
Ms. Susmita Chatterjee
Heard on: 08.04.2019
Judgment on: 24.05.2019
BIBEK CHAUDHURI, J. : -
Plaintiff in a suit for eviction is the appellant before this Court.
The appellant /plaintiff filed a suit for eviction and recovery of
possession against the defendant/respondent stating, inter alia, that the
respondent was a monthly tenant at a rental of Rs.200/- payable according to English calendar in respect of the suit property. It is alleged that the respondent had defaulted in payment of rent since June, 2008. It is also alleged that the defendant has caused material additional alteration in respect of the tenanted premises in violation of the provisions of M.O.& P. of Section 108 of the Transfer of Property Act. The suit 2 premises was reasonably required by the plaintiff for his own use and occupation and lastly the defendant had sub-let the suit premises without the consent of the plaintiff.
Accordingly, the plaintiff /appellant determined the tenancy of the defendant /respondent by serving a notice to quit dated 7th March, 2009 through the learned advocate by registered post with A/D. The defendant /respondent failed and neglected to quit, vacate and deliver up peaceful possession of the suit premises in favour of the plaintiff /appellant. So, he was compelled to file the instant suit.
The defendant/respondent contested the said suit by filing written statement wherein he denied the material allegations made out against him in a plaint. However, the respondent admitted the relationship with the appellant as that of a landlord and tenant in respect of the suit premises at a monthly rental of Rs.200/-.
The learned trial Judge upon due consideration of evidence on record held that the plaintiff was able to prove that the defendant had defaulted in payment of rent since June, 2008 and decreed the suit accordingly. The said judgment and decree dated 14th March, 2011 passed in Title Suit No.165 of 2009 by the learned Civil Judge (Junior Division), 2nd Court at Howrah was assailed in appeal before the learned District Judge, Howrah. The said appeal being Title Appeal No.156 of 2011 was subsequently transferred to the 1st Court of the learned Additional District Judge, Howrah for disposal.
3
By impugned judgment dated 25th July, 2012, the learned Judge in First Appellate Court allowed the said appeal and remanded the suit back to the learned trial Court for decision afresh. The defendant/respondent was directed to file an application under Section 5 of the Limitation Act coupled with Section 7(2) of West Bengal Premises Tenancy Act after complying of the terms of the letter used in Section 7(1) and 7(2) of the said Act afresh within 30 days from the date of receipt of the L.C.R. by the learned Court below.
Learned trial Court was also directed to dispose of the said application under Section 7(2) of the said Act coupled with Section 5 of the Limitation Act after giving opportunity to the plaintiff/appellant to contest the same and decide the suit afresh.
It is pertinent to mention here that previously on 12th March, 2019, this Court heard the learned advocate for the appellant after giving notice to the learned counsel for the respondent and reserved the appeal for delivery of judgement. On 14th March, 2019 Mr. Sukanta Chakraborty, learned advocate for the respondent mentioned the instant appeal with a request to allow him to argue on behalf of the respondent. This Court allowed the prayer made by the learned counsel for the respondent and fixed 25th March, 2019 for hearing of the appeal. Unfortunately enough, Mr. Chakraborty learned counsel for the respondent did not take part in the hearing of the appeal even on 25th March, 2019. Therefore, I proceed to dispose of the instant appeal on the basis of submission made by the learned advocate for the appellant.
4
On perusal of the record it is ascertained that Title Suit No.165 of 2009 was filed by the appellant in the year 2009. It is alleged by the plaintiff /appellant that the defendant/respondent defaulted in payment of rent since June, 2008.
The defendant / respondent entered appearance in the suit on 11th September, 2009 and on 17th September, 2009 he filed an application under Section 7 (1) of the said Act, inter alia, praying for permission to deposit current rent for the months of August and September at the rate of Rs.200/- per month. The said application was allowed by the learned trial Court.
The lower Court record shows that the defendant/respondent did not file any application under Section 7(2) of the said Act by raising any dispute with regard to period of default and / or rate of rent and /or relationship between the parties as landlord and tenant. At the risk of repetition it is pointed out that the plaintiff specifically pleaded that the defendant had defaulted in payment of rent since June, 2008.
The learned trial Judge considered the fact that the defendant/respondent failed to prove that he had paid/deposited rent for the months of June, 2008 to July, 2009. She further held that the respondent failed and neglected to deposit rent in Court from the month of September, 2010. He also did not file any application under Section 7(2) of the said Act. Accordingly, the learned trial Judge held that the defendant was a defaulter in payment of rent.
5
The defendant filed an application under Section 7(2) of the said Act along with Section 5 of the Limitation Act and another application under Section 151 of the Code of Civil Procedure praying for permission to deposit entire arrear rent with interest. Learned Judge, First Appellate Court while remanding the suit for fresh trial gave liberty to the defendant/ respondent to file an application under Section 7(2) of the said Act along with an application under Section 5 of the Limitation Act within 30 days from the date of receipt of the L.C.R. The instant appeal was admitted for hearing on 14th August, 2012 when the Division Bench of this Court framed the following substantial questions of law: -
i) Whether the learned judge in the lower appellate court, substantially, erred in law in remanding the suit when the suit was decreed upon a contesting hearing?
ii) Whether the learned judge in the lower appellate court, substantially, erred in law in granting liberty to the defendant to take out an application under sub-section (2) of section 7 of the West Bengal Premises Tenancy Act, 1997, together with an application for condonation of delay in filing such application when there was no formal prayer made on this behalf?
Section 7 (2) of the West Bengal Premises Tenancy Act runs thus:-
"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 6 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, 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."
It is submitted by Mr. Debjit Mukherjee, learned advocate for the appellant that the learned Judge in First Appellate Court committed grave error in law permitting the defendant/respondent to file an application under Section 7(2) of the said Act at the stage of appeal which is contrary to the proviso appended to Section 7(2) of the said Act of 1997. In support of his contention he refers to a decision of the Hon'ble Supreme Court in the case of Nasiruddin and Others Versus Sita Ram Agarwal reported in (2003) 2 Supreme Court Cases 577. The said report is an authority on the provision of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. Under Section 13 (4) of the Act of 1950 a tenant is 7 required to deposit the amount of rent determined by the Court under sub-Section (3) within 15 days of the date of determination or within such further time not exceeding three months, as may be extended by the Court.
It is submitted by Mr. Mukherjee that under West Bengal Premises Tenancy Act of 1997 the Court may grant extension of time to deposit rent by the defendant-tenant only once and the period of such extension shall not exceed two months.
In the instant case, the defendant/respondent did not file any application under sub-Section (2) of Section 7 of the said Act within the time specified in sub-Section (1) of Section 7. Even if such an application was filed, it was incumbent upon the defendant-tenant to deposit arrear rent within one month from the date of such order, which under the proviso to Section 7 (2) may be extended only once and such extension shall not exceed two months.
According to Mr. Mukherjee when a special statute prescribed the period within which the tenant is required to deposit arrear rent under Section 7 (2) of the said Act, the learned Appellate Court had no authority to extend the said time limit. Decision of Nasiruddin (supra) was followed by the High Court at Calcutta in the case of Smt. Bina Devi Binani versus Ramesh Kumar Gupta (since deceased) by Smt. Kiran Gupta reported in 2015 (3) CLT 384 (HC).
8
In Arun Prakash Saha Versus Asit Baran De & Anr. reported in 2017 (1) CLJ (Cal) 615, similar issue was raised. A Co-ordinate Bench of this Court held as follows :
"11. It is well settled law that in a case where the statutory provision is plain and unambiguous, the Court shall not interpret the same in a different manner, only because of harsh consequences arise therefrom. No doubt the rent legislation is normally intended for the benefit of the tenants, at the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions and equitable consideration has no place in such matters. An authority for this view can be found in the decision of the Supreme Court in the case of E.Polanisamy v. Polanisamy reported in (2003) 1 SCC 123. As held by the Supreme Court in the case of Shri Lakshman Venkateshwara Enterprises (P) Ltd. V. Syeda Vajhiunnissa Begum reported in (1994) 2 SCC 671 that the Rent Control Act is a welfare legislation not merely beneficial enactment for the tenant, but also for the benefit of the landlord.
12. In the case of Bina Devi Benani (supra) this Court, following the ratio of the decision of the Supreme Court in the case of Nasiruddin, has held that the word "shall" used in Section 7 (3) of the Act is imperative in nature. Therefore, in the absence of any provision for extension of time to deposit the arrear rent directed to be paid by the Court under Section 7(1) of the Act, with the default on the pan of the defendant tenant to pay such arrear rent together with the statutory rate of interest within the time 9 stipulated by the order passed by the Court, a right accrues in favour of the plaintiff landlord under Section 7(3) of the Act for striking out of the defence of the defendant tenant against delivery of possession and the Court has no discretion but to pass an order directing striking out of the defence of the defendant tenant against delivery of possession."
I have already narrated the factual aspect of the case. The defendant/respondent failed to file an application under Section 7(2) of the said Act within the statutory period of time. There is absolutely no evidence that he deposited arrear rent as well as the current rent as per the provision of Section 7 (1) of the said Act within the statutory period of time.
Under such circumstances, the learned Judge in the First Appellate Court committed substantial error in law in permitting the respondent to file an application under Section 7(2) of the said Act, 1997 along with an application under Section 5 of the Limitation Act. In view of the provision of Section 7(2), as it stands now there is absolutely no scope to extend the period of time for the benefit of the defendant / tenant to file application under Section 7 (2) of the said Act and thereby extending the statutory time limit for payment of arrear rent with interest.
In view of above discussion, I have no other alternative but to hold that the judgment and order of remand passed by the learned Judge in First Appellate Court in Title Appeal No.156 of 2011 is liable to be set aside.
10
Accordingly, the instant Appeal be and the same is allowed ex parte without cost and thereby the judgment and decree passed by the learned Civil Judge (Junior Division), 2nd Court at Howrah in Title Suit No.165 of 2009 is restored.
The defendant/respondent is directed to quit, vacate and deliver up peaceful possession of the suit premises within one month from the date of this judgment, failing which the plaintiff/appellant is at liberty to put the decree passed by the learned Civil Judge (Junior Division), 2nd Court at Howrah in Title Suit No.165 of 2009 in execution. Lower Court records be sent down forthwith.
Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Bibek Chaudhuri, J.)