Calcutta High Court (Appellete Side)
Arun Prakash Saha vs Asit Baran De & Anr on 23 December, 2016
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present : Hon'ble Justice Ashis Kumar Chakraborty
C.O. 2754 of 2016
Arun Prakash Saha
Vs.
Asit Baran De & Anr.
For the petitioner : Mr. Hiranmoy Bhattacharyya
Mr. Tanmoy Mukherjee
For the opposite parties : Mr. Amrita Lal Dhar
Mr. Sirsendu Bikas Pal
Judgement on : 23.12.2016
Ashis Kumar Chakraborty, J.
This revisional application is at the instance of the defendant in Ejectment Suit No. 374 of 2013, pending before the Court of the learned Judge, 6th Bench, Presidency Small Causes Court at Calcutta challenging the order dated April 07, 2016. By the impugned order dated April 07, 2016 the learned Court below rejected an application filed by the defendant-petitioner under Section 151 of the Code of Civil Procedure, 1908, hereinafter called as "the Code", praying for modification of the earlier order dated February 16, 2016 whereby, he was allowed to deposit the arrear rent from the month of January, 2013 to November, 2013 along with interest at the rate of 10%, per annum.
The brief facts giving rise to the filing of this revisional application are that the defendant- petitioner was a tenant in respect of the Flat No. 4, situated on the first floor of the eastern side of Premises No. 61, Sovabazar Street, Kolkata-700 005 (hereinafter referred to as "the suit property"), at a monthly rent of Rs.2380/- under the plaintiffs-opposite parties. From June, 2012 till December, 2012 the defendant-petitioner failed to pay rent of the suit property to the plaintiffs-opposite parties and in terms of an order dated December 17, 2012 passed by the learned Registrar, Small Causes Court at Calcutta, in Distress Case No. 5 of 2012, filed by the plaintiffs-opposite parties, the defendant-petitioner paid the arrear rent of Rs.17,842/- to the plaintiffs-opposite parties.
However, from January 2013 the defendant-petitioner once again failed to pay rent in respect of the suit property and the plaintiffs-opposite parties filed the ejectment suit before the learned Court below out of which the present revisional application arose. After receipt of the writ of summons of the ejectment suit, the defendant-petitioner filed two applications before the learned Court below, one under Section 7(1) of the West Bengal Premises Tenancy Act, 1997, hereinafter called as "the Act" and the other under Section 7(2) of the Act. In the said application, the defendant-petitioner admitted the rent in respect of the suit property to be Rs.2380/- and the same remained unpaid from the month of January, 2013 but he disputed his liability to pay the enhanced rent of Rs.2740/- per month, as claimed by the plaintiffs-opposite parties. On the basis of the admission of the defendant-petitioner that the monthly rent in respect of the suit property was Rs.2380/- and the said rent remained unpaid from the month of January, 2013 by order dated January 21, 2014 the learned Court below disposed of the application of the defendant-petitioner under Section 7(1) of the Act, allowing him to deposit the arrear rent including maintenance charges for the period commencing from January 2013 to November 2013, amounting to Rs.26, 180/-, along with statutory interest thereon at the rate of 10% per annum. The learned Court below further directed the defendant-petitioner to pay current rent month by month on the 15th day of each succeeding month, at his own risk without prejudice to the rights and contentions of the parties. The hearing of the application under Section 7(2) of the Act was fixed on March 06, 2014.
The petitioner started to deposit the monthly rent in respect of the suit property at the rate of 2380/- with the learned Court below. He , however, did not deposit the arrear rent of Rs.26,180/- together with interest accrued thereon at the rate of 10%, per annum on account of admitted arrear rent for the period from January, 2013 to November, 2013 as directed by the said order dated January 21, 2014.
On February 16, 2015 when the application under Section 7(2) of the Act filed by the defendant-petitioner was taken up for hearing, the learned Court below found that the defendant- petitioner had not deposited challans of admitted arrear rent for the period from January, 2013 to November, 2013. Thus, by order dated February 16, 2015 the learned Court below rejected the application of the defendant-petitioner under Section 7(2) of the Act. The defendant-petitioner did not challenge the said order dated February 16, 2015. After the trial of the suit commenced, on April 07, 2016 the date fixed for further examination-in-chief of P.W. 1, the defendant-petitioner filed the aforementioned application under Section 151 of the Code. By the impugned order, the learned Court below rejected the application filed defendant-petitioner, under Section 151 of the Code, as well as the one filed under Section 7(2) of the Act. The learned Court held that for proceeding with an application under Section 7(2) of the Act it is a pre-condition that the defendant must deposit the admitted arrear amount, but in this case the defendant has not deposited the admitted arrear amount even after obtaining an order for depositing the same under Section 7(1)(a) of the Act.
As mentioned earlier, it is the said order dated April 07, 2016 passed by the learned Court below, which has been assailed by the defendant-petitioner in this revisional application.
Mr. Bhattacharya, learned counsel appearing for the defendant petitioner strenuously contended that in the present case, when the defendant petitioner had disputed its liability to pay rent in respect of the suit property at Rs. 2740/- per month as claimed by the plaintiffs opposite parties, it was the obligation of the learned Court below to decide the said application filed by the defendant petitioner under Section 7(2) of the Act. According to him, when the learned Court below by the order dated February 16, 2015 refused to consider the application of the defendant petitioner under Section 7(2) of the Act, the defendant petitioner was entitled to move the application under Section 151 of the Code. It was urged that when a tenant disputes either the rate of rent in respect of the suit property or the quantity of arrear amount of rent the ejectment suit, the Court is mandatorily required to decide an application filed by the tenant under Section 7(2) of the Act and in the present case, the learned Court below committed an error of law by not only refusing to decide the application filed by the defendant petitioner under Section 7(2) of the Act, but it also fell into an error in rejecting the application of the defendant petitioner under Section 151 of the Code. In support of his contention Mr. Bhattacharya relied on an unreported decision dated December 15, 2015 passed by a learned Single Judge of this Court in CO 3424 of 2015 (Sekhar Samaddar vs. Bidesh Ranjan Bhuniya).
However, Mr. Amrita Lal Dhar, learned advocate representing the plaintiff opposite party raised serious objection with regard to the maintainability of the present revisional application. He strenuously contended that in the present case, undisputedly the tenancy of the defendant petitioner was governed by the Act and in view of the provisions contained in Section 7(1) read with Section 7(3) of the Act, when the defendant petitioner failed to deposit the admitted arrear rent for the period from January 2013 to November 2013 amounting to Rs. 26,180/- along with statutory interest at the rate of Rs. 10% per annum as directed by the said order dated January 21, 2014 passed by the learned Court below, the defence of the defendant petitioner against delivery of possession stood struck out and as such the application filed by the defendant petitioner under Section 151 of the Code was not maintainable. Thus, according to Mr. Dhar, the impugned order passed by the learned Court below is not vitiated by any error and the revisional application filed by the defendant petitioner has no merit. In support of such contention, he cited the decision of the Supreme Court in the case of Nasiruddin & Ors. vs. Sitaram Agarwal, (2003)2 SCC 577 as also the decision of this Court in the case of Smt. Bina Devi Binani vs. Ramesh Kumar Gupta (since deceased) by Smt. Kiran Gupta, reported in (2015)3 Cal LT 384 (HC).
I have considered the facts of the case, the materials on record as also the submissions made by both Mr. Bhattacharya and Mr. Dhar, learned counsel appearing for the respective parties.
Admittedly, in the present case the tenancy of the defendant petitioner was governed by the Act. Section 7(1) of the Act requires that on a suit being instituted by the landlord for eviction of the tenant on any of the grounds under Section 6, the tenant shall, subject to the provisions of sub- section (2) pay to the landlord or deposit with the Court all arrears of rent, calculated at the rate at which it was last paid and upto the end of the month previous to that in which the payment is made together with interest at the rate of 10%, per annum. As per Section 7(1)(b) of the Act, the admitted arrear rent must be paid or deposited by the defendant tenant within one month of the service of the summons on him or where he appears in the suit without service of the summons, he has to pay/deposit such admitted arrear rent within one month of his appearance. Thereafter, as per 7(1)(c) of the Act, the tenant shall continue to pay to the landlord or deposit with the Court, month by month by the 15th of each succeeding month, a sum equivalent to the rent at that rate. Now, Section 7(2) of the Act provides that in the event, there be any dispute as to the amount of the rent payable by the tenant, the tenant has to make a deposit with the Court, the amount admitted by him to be due from him together with an application for determination of the rent payable. Under Section 7(2) of the Act, when the Court decides the amount to be payable by the tenant, the said amount is required to be directed to be paid within a period of one month from the date of the order. The proviso to Section 7(2) of the Act, however, empowers the Court to extend the time period for payment of the amount directed to be paid only once and that too, for a period not exceeding two months. Section 7(3) provides that if the tenant fails to deposit or pay any amount refer sub-section (1) or sub-section (2) of the Section 7 within the time specified therein or within such extended time, as may be granted, the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit. From a meaningful reading of provisions contained in Section 7(1) and 7(2) of the Act, it is clear beyond any doubt that the Court has no power to extend the time for payment of the admitted arrear rent under Section 7(1) of the Act. It is only by virtue of the proviso to Section 7(2) of the Act, the Court has the power to extend the time for payment of the amount adjudicated under the said Section for once only and that too, for a period not exceeding two months.
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 vs. Polanisamy reported in (2003) 1 SCC 123. As held by the Supreme Court in the case of Shri Lakshmi Venkateshwara Enterprises (P) Ltd. vs. 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.
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 part of the defendant tenant to pay such arrear rent together with the statutory rate of interest within the time 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.
In the present case, when the defendant petitioner did not deposit the arrear rent of Rs. 26,180/-, together with the statutory rate of interest thereon at the rate of Rs. 10% per annum on account of the admitted arrear rent from January, 2013 to November, 2013, in terms of the order dated January 21, 2014 passed by the learned Court below under Section 7(1) of the Act, as held by this Court in the case of Bina Devi Benani (supra) the defence of the defendant petitioner in the eviction suit, against delivery of possession stood struck out by operation of law .
For all the foregoing reasons, I do not find any infirmity in the impugned order passed by the learned Court below. Accordingly, the revisional application being C.O. 2754 of 2016 stands rejected.
However, there shall be no order as to costs.
Certified website copies of the judgment, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.
(Ashis Kumar Chakraborty, J.)