Calcutta High Court (Appellete Side)
Sri Arup Kumar Atta vs Sri Susanta Kumar Ghosh on 11 July, 2013
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O. No. 1672 of 2013 Present :
The Hon'ble Mr. Justice Prasenjit Mandal Sri Arup Kumar Atta.
Versus Sri Susanta Kumar Ghosh.
For the petitioner : Mr. Tapabrata Chakraborty. For the opposite party : Mr. H. Bhattacharjee. Heard On: 04.07.2013.
Judgement On: July 11, 2013.
Prasenjit Mandal, J.: This application is at the instance of the defendant and is directed against the Order No.20 dated February 1, 2013 passed by the learned Civil Judge (Junior Division), 1st Court, Alipore in Ejectment Suit No.523 of 2009 thereby rejecting the application dated September 27, 2012 filed by the defendant / petitioner herein praying for extension of time for depositing the arrears of rent calculated under Section 7(2) of the West Bengal Premises Tenancy Act, 1997. By the same order, the learned Trial Judge has also allowed the application under Section 7(3) of the 1997 Act. Being aggrieved, this application has been preferred by the tenant.
The plaintiff / opposite party herein instituted the aforesaid suit for eviction, recovery of possession, mesne profit and other consequential reliefs against the petitioner. Then the petitioner entered an appearance in the said suit and filed a written statement controverting the allegations made in the plaint. He filed an application under Section 7(1) of the West Bengal Premises Tenancy Act, 1997 and that petition was allowed. The application under Section 7(2) of the said 1997 Act, filed by the defendant was disposed of directing the defendant / petitioner herein to deposit arrears of rent to the tune of Rs.44,677/- in court by two installments but the petitioner failed to pay or deposit the said amount within the period as directed and thereafter he filed an application on September 27, 2012 praying for extension of time to make the deposit. That application was rejected by the impugned order.
At the same time, the application under Section 7(3) of the 1997 Act was allowed on contests without costs. Being aggrieved, this application has been preferred.
Now, the question is whether the learned Trial Judge is justified by rejecting the application dated September 27, 2012 praying for extension of time to deposit the arrears of rent.
Having heard the learned Counsel for the parties and on going through the materials on record, I am of the view that the learned Trial Judge has rightly addressed the issue. The application under Section 7(2) of the 1997 Act was disposed of on April 18, 2011 directing the defendant to pay the sum of Rs.44,677/- as arrears of rent by two installments within two months from the date of order. The defendant / petitioner did not comply with the said order. It is only on September 27, 2012 i.e. after about one year and five months from the date of order on April 18, 2011, the application for permission to deposit the arrears of rent was filed contending the ground of poverty and the fact that, his father was a heart patient and he had to remain busy for his father's treatment.
Mr. Tapabrata Chakraborty, learned Advocate appearing for the petitioner has submitted that the Court has enough power to enlarge the time to make the deposit and in support of his contention he has relied on the decisions of [2002] 2 Supreme 143, AIR 1985 Andhra Pradesh 23, AIR 1987 Supreme Court 1010, 2002 (1) CLJ 600, 2011 (3) CLJ 533 (observation under heading HELD) and thus, he has contended that Court is empowered to condone the delay, particularly, in view of the fact that the tenant was in poverty and his father was suffering from heart ailments.
On the other hand, Mr. H. Bhattacharjee, learned Advocate appearing for the opposite party has referred to the decision of (2012)1 CLT 1 and thus, he has contended that the time limit for making deposit under Section 7(2) is inflexible and this cannot be extended by the Court under any circumstances and naturally the provision of Section 5 of the Limitation Act will not be applicable. This is a Judgment of a Division Bench of this Hon'ble Court.
Having due regard to the submissions of the learned Advocates of both the sides and on perusal of the materials on record, I am of the view that there was an inordinate delay of more than one year and five months from the date of passing of the order on April 18, 2011 in making the application for extension of time to make deposit of the arrears of rent as per order under Section 7(2). The Section 7(2) of the 1997 Act lays down the time limit within which the arrears of rent as determined by the Court are to be paid or deposited in the Court and the maximum time limit of extension that the Court may grant is, two months from the date of the order. The learned Trial Judge directed the defendant to pay the two instalments on May 18, 2011 and June 18, 2011. As per sprit of the Section 7(2) of the Act, such extension of time is mandatory.
Mr. Chakraborty has vehemently relied on various decisions and he has contended that even on sufficient cause being shown, the Court may allow the extension of time. So far as the decisions filed by him are concerned, I find that these decisions are all related to under the provisions of the West Bengal Premises Tenancy Act, 1956 i.e. the old Act relating to the dispute between the landlord and the tenant when a liberal attitude was taken in favour of the tenant. The new Act is more stringent than the earlier one and the specific time limit has been fixed for protecting the interest of both the parties.
So far as poverty of the tenant is concerned, I find that it is not at all a ground because the tenant knew very well that he had to pay the rent for the premises he is occupying.
So far as the ground of ailments of his father is concerned, I find that his father became ill in the year 2012 i.e. long time after the expiry of the date within which the arrears of rent were to be paid as per directions of the Court. So, the grounds as contended by the defendant / petitioner herein, in my view, are not tenable at all.
On the other hand, the decision of Subrata Mukherjee v. Bisakha Das reported in (2012)1 CLT 1, cited by the Mr. Bhatterjee is applicable in the instant case and the time limit as fixed after adjudication is inflexible.
Accordingly, I am of the view that the learned Trial Judge has rightly rejected the application dated September 27, 2012 commenting that if this application is allowed, it will be an abuse of justice and would be an act in exercise of jurisdiction not vested in it by law.
In that view of the matter, I am of the opinion that this application is bereft of merits and that there is no scope of interference at all with the impugned order.
The application is, therefore, dismissed. Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)