Calcutta High Court (Appellete Side)
Smt. Biva Rani Das vs Sri Hari Prasad Sharma on 20 February, 2020
Author: Biswajit Basu
Bench: Biswajit Basu
1
(368)
20.02.2020
(p.jana)
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
CO No. 3319 of 2019
Smt. Biva Rani Das
-versus-
Sri Hari Prasad Sharma
Mr. Siva Prasad Ghose,
... for the petitioner.
Ms. Sohini Chakraborty,
Mr. Kaustav Bagchi,
... for the opposite party.
.
This revisional application under Article 227 of the Constitution of India is at the instance of the plaintiff in a suit for ejectment and is directed against the order no. 24 dated August 28, 2019 passed by the Learned Civil Judge, Senior Division, Third Court, Barasat, District : 24 Parganas (North) in Title Suit No. 109 of 2016.
The Learned Trial Judge by the order impugned has disposed of an application filed by the defendant under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as the said Act in short) holding that the defendant is defaulter in payment of rent since February 2010 till July 2019 and assessed the payable arrear rent at Rs. 2383/-.
The petitioner is challenging the order impugned on three fold grounds. Firstly, the application under Section 7(2) of the said Act is not maintainable as the same was filed without 2 depositing the admitted arrear rent within the time stipulated under clause (b) of Section 7(1) of the said Act. Secondly, the amount of assessed arrear rent does not contain the statutory interest on the principal amount and thirdly, the costs deposited in the suit by the defendant have been erroneously adjusted with the assessed arrear rent.
On going through the written objection filed by the petitioner to the application under Section 7(2) of the said Act it appears that the petitioner in the said written objection had raised the question of the maintainability of the said application on the ground that the tenant did not comply with the provision of Section 7(1)(a) of the said Act before filing the said application.
The said provision of the said Act mandates that the tenant has to deposit the admitted arrear rent within the time prescribed under Clause (b) thereof i.e. within one month from the service of summons on the tenant or, where he appears in the suit without the summons being served upon him, within one month of his appearance.
Mrs. Sohini Chakraborty learned advocate appearing on behalf of the defendant/opposite party submits that there was no arrear rent due and payable as on the date of the filing of the suit. The tenant after his appearance in the suit applied before the Learned Trial Judge for deposit of the current rent under Section 7(1) of the said Act but the said prayer since was made beyond the period of limitation prescribed under paragraph (b) thereof he applied for condonation of delay.
Mrs. Chakraborty, further submits that the learned Trial Judge by the order dated September 08, 2017 refused to condone the said delay but the said order was set aside in revision vide order dated January 14, 2019 passed in CO 4061 of 2017 subject to payment of costs of Rs. 20,000/- to the plaintiff.
Mrs. Chakraborty, files copy of the photostat certified copy of the said order dated January 14, 2019 which is taken on record.
3
The delay in depositing the admitted arrear rent was condoned and in pursuance whereof the defendant deposited the arrear rent as such the first ground of challenge to the order impugned fails.
The defendant is required to pay the assessed arrear rent together with interest at the rate of ten per cent per annum. The learned Trial Judge in the order impugned has assessed the arrear rent without calculating interest on the principal arrear rent as such the ground of challenge to the order impugned on this score is sustainable.
The delay in filing the application under Section 7(1) of the said Act was condoned in C.O. 4061 of 2017 subject to payment of costs of Rs. 20,000/-. The defendant deposited the said costs in the suit on April 29, 2019 and again paid the said costs to the plaintiff. The learned Trial Judge after adjusting the said deposit of Rs. 20,000/- with the assessed arrear rent has directed the defendant to pay Rs. 2,383/- to the plaintiff, such assessment is affecting the calculation of interest on the total arrear rent, therefore, challenge to the order impugned on the said ground is also sustainable.
This Court instead of remanding the matter back to the Trial Court for determination of such a trifle issue invited the learned advocate for the parties to calculate the total arrear rent together with statutory interest thereon.
Mrs. Chakraborty, learned advocate for the defendant/opposite party makes the said calculation and submits that the total amount of arrear rent for the period from February 2010 to July 2019 together with ten percent compound interest on the total arrear rent would be Rs. 34,140.80/-
Mr. Ghosh, learned advocate for the plaintiff/petitioner could not dispute the said calculation.
4
C.O. 3319 of 2019 is disposed of by directing the defendant/opposite party to deposit the said amount within one month from date.
The defendant is at liberty to apply before the learned Trial Judge for return of the sum of Rs. 20,000/- deposited by him on account of aforementioned costs.
No order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.
(Biswajit Basu, J.)