Calcutta High Court (Appellete Side)
Smt. Nila Alias Lila Das And Ors vs Smt. Mira Das And Anr on 23 August, 2018
Author: Biswajit Basu
Bench: Biswajit Basu
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
Hon'nble Justice Biswajit Basu, J.
C.O. No. 412 of 2018 Smt. Nila alias Lila Das and ors.
-versus-
Smt. Mira Das and anr.
For the petitioner : Mr. Souradipta Banarjee Mr. Arnab Ray For the opposite party: None.
Heard on : 14.08.2018 Judgement on : 23.08.2018 Biswajit Basu, J.
The revisional application under Article 227 of the Constitution of India is at the instance of the defendants/ tenants in a suit for eviction under Section.6 of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as the "the said Act in Short") on the grounds of default and reasonable requirement of the suit property. The defendant/ tenant contested the suit. The learned Trial Judge dismissed the suit by the judgment and decree dated January 29, 2008.
2. The plaintiff/ opposite party herein being aggrieved by and dissatisfied with the said judgment and decree preferred an appeal, initially before the West Bengal Land Reforms and Tenancy Tribunal, being OAP No. 627 of 2008.
3. The said appeal was subsequently transferred to the Court of learned District Judge at Alipur, District-South 24-Parganas. The learned District Judge at Alipur received the records of the said appeal from the West Bengal Land Reforms and Tenancy Tribunal at Salt Lake on December 12, 2012. The said appeal after the said transfer renumbered as Ejectment appeal No. 35 of 2012 and is pending disposal before the learned Additional District Judge, 3rd Court, at Alipur.
4. On the death of original tenant/ defendant his legal hairs and representatives have been substituted in the said appeal as the respondents, the petitioners herein. One of the said respondents being respondent No. 2 in the said appeal on February 06, 2017 filed an application under Section 151 of the Code of Civil Procedure, praying that he may be allowed to deposit the said monthly rent at the rate of Rs.25/- per month from February 2008 to January 2017 i.e. 108 months with statutory interest in the name of appellants in the Courts Treasury by way of Civil Deposit and continue to deposit the same in terms of law till the disposal of the appeal. The ground on which such permission was sought that the petitioners were not aware as to whose credit they could deposit the said rent, as a result could not deposit the said rent earlier.
5. The learned Appeal Court below dismissed the said application holding, inter alia, that the defendant in the suit filed application under Section 7 read with Section 21(3) of the said Act and the Trial Court vide order No. 17 dated 4th July, 2005 allowed the said application, in pursuance whereof the original defendant deposited the arrear and current rent to the credit of the plaintiff in the Court as civil deposit, therefore, there cannot be any confusion in the mind of the petitioners in whose credit they could make such deposit. Moreover, Section 151 of the Code of Civil procedure cannot be resorted to deposit arrear and current rent when there is specific provision under the said Act for the said purpose.
6. Mr. Souradipta Banarjee, learned Advocate appearing for the petitioners strenuously submits that the original defendant/ tenant, being the respondent of the said appeal could not deposit the rent in the appeal when it was pending before the West Bengal Land Reforms and Tenancy Tribunal as there is no infrastructure in the said Tribunal for deposit of rent.
He further submits that unless his clients are allowed to deposit the arrears and the current rent with the Appeal Court, serious consequence would follow such as striking out their defence resulting in a decree of eviction, although they are not at fault.
Mr. Banarjee further submits that provisions relating to deposit of rent by the tenants in pending proceeding between landlord and tenant should be liberally construed. He in support of his contention places reliance on the case of Sri. Sibu Chandra Dhar, Appellant vs. Sri. Pasupati Nath Auddya, Respondent, reported in AIR 2002 Supreme Court 1252 and the case of Sri. Uttam Kayal vs. Sri. Sunil Pal reported in 2008 (2) CLJ (Cal) page. 134.
7. The said application under Section 151 of the Code of Civil Procedure is based on the ground that the petitioners were not aware of the ownership of the appellants over the suit property as such could not deposit the arrear and current rent in the Court.
8. The original defendant in the suit deposited the arrear and current rent by taking resort to the Section 7(1) read with Section 21(3) of the said Act to the credit of the plaintiff. Therefore, it has been rightly held by the learned Trial Judge in the order impugned there cannot be any confusion in the mind of the respondents/ petitioners as to whose credit such deposit can be made in the appeal. It further appears on perusal of the copy of the judgment annexed to the revisional application which is under challenge in the Appeal Court below that issue No. 5 in the suit although was not framed in a very clear manner but the said issue pertains to default of the defendant in payment of rent.The said issue in the said judgment has been decided against the plaintiff holding that the defendant paid all arrear rents. The learned Trial Judge while deciding the said issue took into his consideration the order No. 17 dated July 14, 2005 by which the application of the defendant under Section 7(1) and 7(2) of the said Act was disposed. Therefore, the ground on which the said application is based on the face of record is sham.
9. The learned Trial Judge by the order impugned has dismissed the application of the petitioners also on the ground that the Section 151 of the Code of Civil Procedure cannot be resorted to deposit the rent in pending lis between the landlord and tenant, where there is specific provision for said purpose under the said Act.
10. Mr. Banarjee submits that it is settled position of law that for quoting wrong provision of law a party cannot be disentitled from his relief if he is otherwise entitled to such relief under the law. He submits that the application should not have been dismissed by the learned Trial Judge on the ground that this has been filed under a wrong provision of law.
11. There is no doubt that for misquoting of a provision of law the relief to a party to suit cannot be denied if such party is otherwise entitled to the said relief under the law. But to get such relief the requirement of the provision of law under which the said party is entitled to the said relief must be satisfied.
12. The tenant after the dismissal of the suit is required to tender the rent to the landlord and on the refusal of the landlord the tenant is required to deposit the same with the Rent Controller by taking recourse to the Provisions of Section 21 of the said Act. In the present case the petitioners and or their predecessor in interest admittedly did not take any steps for payment of rent, to the landlord, after the dismissal of the suit.
13. There is nothing on record to show that the petitioners or their predecessor in interest have made any attempt to deposit the rent in appeal before the West Bengal Land Reforms and Tenancy Tribunal.
Even if there is no infrastructure in the West Bengal Land Reforms and Tenancy Tribunal for deposit of rent as submitted by Mr. Banarjee but the tenant cannot be absolved from his duty at least to make an application before the Tribunal to deposit of such rent in the appeal. In the present case admittedly no such steps was taken by the tenant.
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14. There is no doubt that the tenant being a respondent in the appeal of the landlord is entitled to make appropriate application seeking permission to deposit the rent in the appeal, but the tenant has to make the said prayer in accordance with the Provisions of Section 7 of the said Act. Section 7(1) of the said Act mandates that on a suit being instituted by the landlord for eviction on the grounds referred to in Section-6 of the said Act, subject to the provisions of Sub- Section(2) of Section 7 pay to the landlord or deposit with Court all arrears of rent. The time limit restricted for such payment or deposit is one month from the service of summons on the tenant or where he appears in the suit without summons being served upon him within one month of his appearance.
15. The deposit of current and admitted arrear rent is to be paid to the landlord or to be deposited with the Court within the time limit as mentioned above. Delayed payment or deposit can be made subject to the satisfaction of the Court that there exists sufficient cause which prevented the tenant to approach the Court within the time prescribed under Section 7(b) of the said Act.
16. It has been held by a Division Bench of this Court in the Case of Subrata Mukherjee vs. Bisakha Das reported in (2012) 1 CAL LT 1(HC) page.1 that Court has jurisdiction to condone the delay in filing the application under Section 7(1) of the said Act.
The paragraph 32 of the said reported decision being relevant is quoted below:-
"32. Accordingly, for this reason, we hold that Section 5 of the Limitation Act, 1963 will be applicable for the purpose of making deposit of the admitted amount of arrears of rent, as mentioned in Sub- Sections (1) and (2) of Section 7 of the 1997 Act."
The application filed by the petitioners seeking permission to deposit the arrears and current rent does not disclose, any reason justifying delayed filing of the said application. The said application, therefore, does not fulfill the requirements of Section 7 (1) of the said Act. The Section 151 of the Code of Civil Procedure cannot be resorted to circumvent the said provision of the said Act.
17. The Apex Court , while dealing with scope of the discretion of the High Court to be exercised under Article 226 of the Constitution of India in the case of A.V. Venkateswaran, Collector of Customs, Bombay, Appellant vs. Ramchand Sobhraj Wadhwani and another, Respondents, reported in A.I.R 1961 (Supreme Court) page. 1506 has held that such discretion cannot be exercised in favour of a petitioner who has failed to avail his remedy under the statute within time for his own fault. The relevant portion from the paragraph No. 11 of the said reported decision is quoted below:
"11. ............. if a petitioner has disabled himself from availing of a statutory remedy by his own fault in not doing so within the prescribed time he cannot certainly be permitted to urge that as a ground for the Court dealing with its petition under Article 226 to exercise its discretion in his favour......................."
Therefore, there is also no scope to exercise discretion of this Court to allow the petitioners to deposit arrear and current rent in the pending appeal.
18. The decision of the Apex Court relied on by Mr. Banarjee reported in AIR 2002 Supreme Court 1252 (Supra) is not applicable in the facts and circumstance of the present case. The said decision of the Apex Court is on the West Bengal Premises Tenancy Act, 1956. The Apex Court considering that the said piece of legislation being beneficial, held that provisions of the said Act has to be liberally construed so as to ensure that the statutory purpose is fulfilled. The inflexibility of some parts of Section 7 of the West Bengal Premises Tenancy Act, 1997 makes it clear that the provisions of Section.7 of the West Bengal Premises Tenancy Act, 1997 and the provisions of Section. 17 of the West Bengal Premises Tenancy Act, 1956 cannot be interpreted in the same manner. That apart in the said decision the explanation offered for delayed deposit although was not satisfactory but High Court when in exercise of its discretion condoned the delay. The Supreme Court did not interfere with the exercise of such discretion by the High Court. In the present case there is no explanation whatsoever offered in the application under Section 151 of Code of Civil Procedure justifying the delayed attempt of the petitioners to deposit the arrear and current rent. The other decision relied on by Mr. Banarjee reported in 2008 (2) CLJ (Cal) 134 (Supra) is also not at all applicable in the present case as the said decision of a coordinate bench of this Court based on consideration of order 15 A of the Code of Civil Procedure which appears to be a state amendment of the Code of Civil Procedure which is not applicable in West Bengal.
In view of the discussions made above the revisional application fails the order impugned is affirmed C.O. No. 412 of 2018 dismissed. There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for be supplied, to the parties upon compliance with all requisite formalities.
(BISWAJIT BASU, J.)