Calcutta High Court (Appellete Side)
Sibsankar Bhakat & Anr vs Radharani Bhakat & Anr on 24 November, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
24.11.2017
CO 1904 of 2016
Sibsankar Bhakat & Anr.
Versus
Radharani Bhakat & Anr.
Ms. Shila Sarkar.....for the petitioners.
Mr.Shamik Chatterjee
Mr. Soumya Subhra Roy
Mr. Hemraj Adhikari..... for the opposite parties.
1. The CO being No. 1904 of 2016 along with CO No. 1332
of 2016 and CO No. 1923 of 2016, were heard
simultaneously, since point at issue was the same and
identical, as to whether after determination of the
arrears of rent and direction of the Court for making its
deposit with statutory interest, if default recurred
during pendency of the eviction suit in the matter of
making such deposit of the sum equivalent to the rent
payable in the suit premises, in that case whether said
default is condonable, or alternatively, for making such
default the defence against delivery of possession is to
be struck out.
2. The point at issue was dealt with in details by
discussing various cases cited at the bar in the case of
Mithun @ Akhtar Ali. v. Sk. Azizul Haque & Ors. in CO.
No. 1332 of 2016, effect of which shall also be followed
in the instant case.
3. In the case on hand, learned Civil Judge (Junior
Division) II Court, Asansol in the suit by determining
the arrears of rent directed the
petitioners/defendants/tenants (who will be called on
1
hereinafter shortly as the petitioners) to satisfy the
arrear amount by 10 equal instalments and also were
directed for making payment of the current rent from
the month of November 2011, thenceforth, in
accordance with law. Instead of complying the said
order however, was tested by filing one application
under Article 227 of the Constitution of India being CO
No. 803 of 2012. This Court on 26th June 2012,
virtually by upholding the order of the learned trial
court, with a rider regarding payment of current rent
disposed of the C.O. with direction, which is set out
hereunder:
"If there is any default in payment of the
current rent from November 2011, such
default may be made good in course of the
next two months".
4. It is needless to mention that this Court while exercising
its power of judicial review within the ambit of Article
227 of the Constitution of India instead of re-examining
the fact or evidence, only examines the procedure and
law applied thereto to satisfy as to whether law and
procedure applicable to the matter were relevantly
applied or not, or, as whether any miscarriage of justice
was caused for its non-application.
5. As it has been indicated in the order impugned "since no
direction was given by the appellate court to deposit the
arrears of monthly rent as well as current monthly rent
the defence thought it was not obligatory upon them to
deposit any amount." From the above perspective it
reveals that it was perceived by the petitioners in one
hand that they thought that they were not supposed to
deposit any amount towards current monthly rent since
it was not obligatory and, on the other hand they did
not deposit the sum as there was no direction of the
appellate court. This Court already has indicated that
learned trial court while disposing of the application
2
under Section 17(2) of the Old West Bengal Premises
Tenancy Act, 1956 (hereinafter referred to as the old Act)
determining apart from direction to make payment of
the arrears by instalments also directed the petitioners
to make payment of current rent from the November
2011, in accordance with law. So far as making deposit
of the sum equivalent to the current rent is concerned
there is no basic difference between the old provision of
Section 17(1) or new provision Section 7(1) of the West
Bengal Premises Tenancy Act, since it has to be
deposited by 15th of each succeeding English calendar
month, till disposal of the suit, if not otherwise directed.
It has also been indicated above that when the said
order of trial court was decided in CO. 803 of 2012, this
Court again warned so that the petitioners may not fall
in default. So far as making payment of current rent.
Therefore, the alibi of making thought of their own that
the petitioners had neither any obligation nor any
direction from the Court to make deposit as regard the
sum equivalent to the current rent is so hopeless that it
is unfit to incur any confidence or credence of the Court
for the purpose of stretching any discretionary relief in
the name of interest of justice. The terms "discretion"
and or the "interest of Justice" have also been dealt with
in details in the case of Mithun @ Akhtar Aliv. v. Sk.
Azizul Haque & Ors. in CO. No. 1332 of 2016 (supra)
which need not be reiterated, as, that will be nothing
but a mere repetition.
6. The learned Counsel for the petitioners prayed for an
opportunity so that deposit of current rent can be made
by her client and the defence against delivery of
possession cannot be struck out and that was
vehemently opposed by the opposite party.
7. This Court on and again has reiterated that due to
violation of statutory provision in any pending
3
proceeding by either of the parties if some valuable right
is accrued in favour of the other side, then the other
side deserves to enjoy it and the same should not be
splashed away in the name of interest of justice or by
exercising judicial discretion, because, the judicial
discretion is not an one-sided game, it has to be
exercised basing upon the principles of natural justice,
equity, fair play and good conscience. In the case of
hand, when the petitioners at the first instance while
getting application under Section 17(2) of the Old West
Bengal Premises Tenancy Act, adjudicated got the
opportunity to comply with the provisions of law but he
did not. Again while the petitioners had tested the said
order of the learned trial court before this Court and he
failed to gain any protection by the order of the Court to
comply as regard making payment of current rent, he
remained oblivious. Coming back to suit when the
application was filed by the opposite parties to get
necessary order under Section 7(3) of the Act, since by
this time the new Act of West Bengal Premises Tenancy
has come into force and the learned Trial Judge
unhesitatingly extend the said statutory right available
to the landlord /opposite parties under Section 7(3) of
the new Act.
8. In the Act as the obligation of the landlord and tenant
has been well specified and since without maintaining
the statutory formalities the landlord has been
prevented even from taking any legal step for evicting
his tenant without due process of law, and that too
subject to strict proof of the ground (s) of eviction,
similarly the tenant, after becoming statutory tenant
shall have to be complied with the statutory formalities,
if he wants protection from illegal eviction, meaning
thereby, if during pendency of the suit the statutory
tenant failed to comply with the provisions of law to
4
discharge his statutory obligations then legal
consequence shall be followed, meaning thereby,
defence against delivery of possession shall be struck
off. Therefore, the non-compliance by the statutory
tenant in one hand gives rise of statutory obligatory
right in favour of the landlord, on the other hand, for
which filing of an application is not necessary. It would
be the duty of the learned trial court to record
appropriate order by stretching the relief under Section
17(3) of the old Act or Section 7(3) of the new Act, as
case may be.
9. Therefore, on examining the impugned order No. 27
dated 16.03 2016, passed by the learned Civil Judge
(Junior Division) II Court Asansol in Title Suit No. 76 of
1999 within the ambit of Article 227 of the Constitution
of India this Court in addition to the observations made
already in the case of Mithun @ Akhtar Aliv. Sk. v.
Azizul Haque & Ors. in CO. No. 1332 of 2016 (supra)
hold that the order does not suffer from any legal
infirmity or perverseness, therefore, by upholding the
said order the CO being 1904 of 2016 stands dismissed
with cost of Rs. 5,000/- ( Rupees five thousand) which
shall be payable before the learned Trial Court by the
petitioners within a period of two months, failing which
the respondents landlords may be at liberty to take
appropriate legal step.
10. Parties will be at liberty to get xerox certified copy of this order upon production of a document of payment of requisite court fees and after fulfilling all necessary formalities.
11. With the aforesaid direction this application stands dismissed.
(Mir Dara Sheko, J.) 5 6