Calcutta High Court (Appellete Side)
Smt. Shanti Shaw @ Devi & Anr vs Sri Amit Dasgupta & Anr on 7 September, 2015
1 7th September, 2015 (SKB) In the High Court at Calcutta Civil Revisional Jurisdiction C.O. 2180 of 2015 (Assigned) Smt. Shanti Shaw @ Devi & Anr.
Versus Sri Amit Dasgupta & Anr.
Mr. J. Chakraborty, Mr. S. Khan ... for the petitioners.
Mr. Hiranmoy Bhattacharya, Mr. Arindam Das, Mr. Biswajit Sarkar ...for the opposite parties.
Two orders which are under challenge in this Revisional Application are dated 2nd April, 2015 directing the defendants/tenants/opposite parties to deposit rent and the other dated 9th June, 2015 rejecting the application under Section 7(3) of the West Bengal Premises Tenancy Act by the learned 4th Judge, Small Causes Court, Calcutta in Ejectment Suit No. 80 of 2011.
Mr. Chakraborty, learned Counsel appearing for the plaintiffs/petitioners submits that on 9th January, 2014 by an order the learned Trial Court held that the defendants/tenants to be a defaulter and directed to pay of Rs.13,951/- towards arrear rent and interest. Learned Court below granted thirty days time to deposit all arrear rents and the interest and, in effect, the amount was to be paid within 1st February, 2014. Thereafter, once again an application was moved by the defendants/tenants and the learned Court below granted two months further time in view of the Section 7(2) of the West Bengal Premises Tenancy Act, 1997 to deposit the amount. Two months time to make payment was peremptory in view of the provision under Section 7(2). By that order learned Court below directed to make payment by 3rd April, 2014 but the 2 defendants/tenants did not pay the amount within two months and i.e. how they were spending time. Thereafter again by an application moved on 3rd April, 2014, the defendants/tenants/opposite parties sought for adjudication of arrear rents and interest and also prayed for recalling of the order dated 3rd January, 2014.
On 3rd June, 2014 application filed for recalling of the order dated 3rd January, 2014 was rejected on contest. Learned Court below vide Order No. 33 dated 6th February, 2014, recorded the fact that for the interest of justice learned Judge granted further extension of time for depositing the arrear rent and interest as indicated in the order dated 3rd January, 2014. Even thereafter the defendants/tenants/opposite parties did not comply with the order.
Thereafter, the defendants/tenants/opposite parties chose to prefer revisional application and the plaintiffs/petitioners also preferred revisional application for striking out defence and expeditious trial of the suit respectively.
Both the revisional applications were taken up by this Hon'ble High Court and the High Court granted further time to the defendants/opposite parties to deposit the arrear rent and interest at a belated stage and within 30 days from the date of passing of the order dated 20th February, 2015.
Leave was granted with a condition and subject to payment of Rs.20,000/- to the plaintiffs or their learned advocate within 15 days from the date of the order of the learned Court below.
Even in spite of such extension with a condition to make payment with cost of Rs.20,000/- the order was not complied with by the defendants/opposite parties.
Mr. Chakraborty then submits that since the order of extension was passed subject to condition and that condition was not fulfilled, therefore, the extension so granted was unenforceable. He submits that thereafter the learned Trial Court on 2nd April, 2015 passed an ex parte order suo-moto extending the time granting further extension to the 3 defendants/tenants to deposit the arrear rent and interest without perusing the direction of the Hon'ble High Court and without notice and hearing the learned advocate appearing for the plaintiffs.
Thereafter, the learned Court below by its order dated 9th June, 2015 rejected the application of the plaintiffs/petitioners filed under Section 7(2) of the West Bengal Premises Tenancy Act, 1997. Learned Counsel for the plaintiffs/petitioners submits that the learned Court below exceeded its jurisdiction so vested in it by extending time to deposit the amount and also rejecting the application filed by the plaintiffs/petitioners. He submits that on earlier occasion, this Hon'ble Court directed the learned Court below to dispose of the suit by four months. By this process, filing application one after another before the learned Court below defendants/tenants got extension one after another and, in fact, the order passed by this Hon'ble Court for disposal of the suit was rendered ineffective.
He submitted that the provisions under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 is quite specific. Learned Court below has power to grant extension for 60 days only and that would be the only extension, which the leaned Court below could grant. However, this Hon'ble High Court out of sympathy granted extension but the defendants/tenants did not obey the same. He submitted the suit was pending even in spite of this Court's order to dispose of within four months which passed long back. The suit could not be disposed of in time. He submits that the defendants/tenants have abused the process of Court and, in fact, misused the order obtained by them from this Hon'ble High Court. He submits that the learned Court below failed to appreciate the scope and ambit of the provision. Learned Court below also failed to appreciate the order passed by this Hon'ble Court. He then submits that no application was filed immediately after the order passed by this Hon'ble Court with a prayer to allow them to deposit. He further submits that the sheer negligence and in effect the defendants/opposite parties showed their disinterest to contest 4 the suit. He submits, in such circumstances, both the orders passed by the learned Court below should be set aside.
On the other hand, learned Counsel appearing for the opposite parties submits that it is true that on different occasions order were passed. His clients could not deposit the amount. However, they are agreeable to deposit this money now, as directed earlier by this Court. He took a plea that the order passed on 20th February, 2015. He has filed an application for certified copy after four days i.e. on 24th February, 2015 and the certified copy was obtained by them on 25th March, 2015. He submitted that after obtaining certified copy, they have made an application before the learned Court below and the learned Court below had granted opportunity to the defendants/ opposite parties to make payment. He submitted that there was no latched on his clients' part and there was also nothing wrong in the order passed by the learned Court below.
Considered the submissions made by the learned Counsel appearing for the parties.
The relevant provision under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 reads as follows:
"Sec.7(2) If in any [suit] referred to in sub-section (1), there is any dispute as to the amount of the rent payable by the tenant, the tenant shall, within the time specified in that sub-section, deposit with [the Civil Judge] the amount admitted by him to be due from him together with an application for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. On receipt of the application, [the Civil Judge] shall, having regard to the rate at which rent was last paid and the period for which default may have been made by the tenant, make, as soon as possible within a period not exceeding one year, an order specifying the amount, if any, due from the tenant and, thereupon, the tenant shall, within one month of the date of such order, pay to the landlord the amount so specified in the order:
Provided that having regard to the circumstances of the case, an extension of time may be granted by [the Civil 5 Judge] only once and the period of such extension shall not exceed two months."
It is specific in the provision under Section 7(2) that only one and final extension of two months could be granted by the learned Court below. The learned Court below strictly followed the same and that was not the end of the matter. Defendants/opposite parties moved several applications. This Hon'ble Court passed an order giving 30 days time to deposit the amount but the defendants/opposite parties were reluctant to obey rather they applied for certified copy after four days. There is no effort on their side for taking out an application or giving intimation to the Court below that they have applied for certified copy or they should be allowed to deposit without certified copy of the order.
In my view, the defendants/opposite parties clearly abused the process of this Hon'ble Court and also the learned Court below and they did flout the order passed by this Court. Now-a-days order of this Hon'ble Court is also available on server and on the basis of server copy one could have made application to deposit the money in time as directed by this Hon'ble Court but there is no effort on the side of the defendants/opposite parities. In my view, both the orders passed by the learned Court are not sustainable.
Accordingly, both the orders are set aside. The revisional application is, thus, allowed. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Ashoke Kumar Dasadhikari, J.)