Calcutta High Court (Appellete Side)
M/S. Sree Krishna Welding Works vs Amit Kumar Chamaria & Anr on 7 August, 2015
Author: Harish Tandon
Bench: Harish Tandon
951
M/L
07.08.15 C.O. 1247 of 2015
akd
M/s. Sree Krishna Welding Works.
Vs.
Amit Kumar Chamaria & Anr.
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Mr. Pratik Prokash Banerjee, Mr. Ramchandra Guchait.
... for the petitioner.
Mr. Sabyasachi Bhattacharyya, Mr. Supratim Laha, Mr. Pranav Sharma.
... for the opposite parties.
This revisional application is directed against the order no. 62 dated 4th February, 2015 passed by the learned Civil Judge (Junior Division), 1st Court, Howrah in Title Suit No. 144 of 2010, by which an application under Section 151 of the Code of Civil Procedure filed by the defendant/petitioner is rejected.
The plaintiffs/opposite parties filed a suit for eviction of a monthly tenant, inter alia, on the ground of default envisaged under Section 6 of the West Bengal Premises Tenancy Act, 1997. Admittedly the summons of the suit was served on the defendnat/petitioner on 8th October, 2010. The defendant entered appearance on November 26, 2010 and filed an application under Sections 7 (1) and 7 (2) of the West Bengal Premises Tenancy Act, 1997 in the suit. The defendant further filed a written statement on March 10, 2011 when the aforesaid applications were still pending.
The Court took up the application under Section 7 (1) of the said Act on 20th August, 2013 and disposed of the same on consent of the parties by allowing the petitioner to deposit the arrears rent with statutory interest within the stipulated period.
Admittedly the petitioner did not deposit the amount in terms of the said order until 13th May, 2014, when prayer was sought for passing the challans and the Court permitted the defendant to deposit the said amount at his own risk. The moment it was realized that the said amount is not deposited strictly either in terms of Section 7 (1) of the said Act or in terms of the order disposing of the application under the said provision, another application captioned as an application under Section 5 of the Limitation Act was taken out seeking condonation of delay in making belated deposits.
By the impugned order the Court held that the petitioner was negligent in depositing the rent and further observed that the application under Section 5 of the Limitation Act is not applicable.
Mr. Pratik Prakash Banerjee, the learned advocate appearing for the defendant/petitioner, submits that the provisions of the Limitation Act apply to a proceeding under the West Bengal Premises Tenancy Act, 1997 and the Court is not powerless to condone the delay for depositing the rent beyond the statutory period. He further submits that the order passed under Section 7 (1) of the said Act was never communicated by the learned advocate to his client and immediately after being apprised of such fact, the deposit has been made and, therefore, the Trial Court ought not to have taken a stringent and harsh view in condoning the delay in depositing the rent.
Mr. Sabyasachi Bhattacharyya, learned Senior advocate appearing for the plaintiffs/opposite parties, submits that the order under Section 7 (1) of the said Act was passed in presence of both the parties by consent. The Court permitted the defendant/petitioner to deposit the rent within the time indicated therein. He strenuously submits that the grounds assigned in the application for condonation of delay is not proper and sufficient and it cannot be said that there was any laches on the part of the learned advocate of the defendant in not communicating the order. He thus submits that the Trial Court after considering the averments made in the application under Section 5 of the Limitation Act have exercised discretion in rejecting the same, which should not be interfered with in exercise of power under Article 227 of the Constitution of India. Lastly he submits that the conduct of the petitioner is such, which does not require lenient approach in the matter and prays for dismissal of the revisional application.
At the very outset this Court must record that the provisions contained under Section 7 (1) of the Act does not require any application to be made for compliance thereof. It is a statutory duty cast on the tenant to take steps under the aforesaid provisions after entering appearance upon service of summons or where summons has not been served after recording appearance in the suit.
The said provision mandates that it is obligatory on the part of the tenant to deposit the arrears rent together with statutory interest within the prescribed time to avoid the penal consequences provided under Sub-section 3 of Section 7 of the said Act. There is no occasion either on the part of the tenant to take out an application under Sub-section 1 of Section 7 of the Act, nor it is obligatory on the part of the Court to adjudicate the said application extending the time for depositing the arrears rent.
Section 40 of the said Act makes the provisions of the Limitation Act applicable to a proceeding under the West Bengal Premises Tenancy Act, 1997. The power of the Court to condone the delay in depositing the rent within the prescribed period is not the centre of debate, as the Court in an appropriate case can condone the delay in exercise of inherent power enshrined under Section 151 of the Code of Civil Procedure.
The nomenclature of the application is not the determinant factor. It is imperative on the court to look into the substance of the application and the reliefs claimed therein and should not be swayed by the caption thereof quoting the wrong provisions. Even if the application was captioned as an application under Section 5 of the Limitation Act, it is in effect inviting the Court to invoke the inherent power to condone the delay in making the deposit belatedly.
The Rent Restriction Act is a beneficiary piece of legislation and any interpretation, which would frustrate the legislative intent, should be avoided by the Court.
The condonation is sought primarily on the ground that the learned advocate, who appeared before the Court on a fateful day, did not communicate the order within the time indicated therein. The said lawyer has not come forward and refuted the allegations made against him, rather it appears that he continued to act on behalf of the defendant/petitioner in the proceeding pending before the Trial Court.
A litigant should not suffer for the laches and lapses on the part of the counsel/lawyer. Furthermore non-compliance of the provisions under Sub-section 1 of Section 7 attracts serious penal consequences provided under Section 7 (3) of the said Act. The Court should take a pedantic and pragmatic approach to a matter to render justice between the parties. The lawyer has shouldered the burden of his lapses and laches and there is no counter-affidavit filed before the Trial Court, which may require the Court to disbelieve the statements made in the application.
It is not in dispute that an application under Section 7 (2) of the Act is still pending and the Court has fixed the date for hearing thereof. The said provision makes imperative upon the Court to determine the disputes raised therein and permits the tenant to deposit the rent within certain time indicated therein.
The adjudication is still pending. Denying the defendant/tenant to have the condonation of delay in depositing all the admitted arrears would close the doors of defence that may be taken and this Court, therefore, feels that the Trial Court ought not to have rejected the application, as the grounds set forth therein are not proper and satisfactory.
It is no doubt that there are some lapses attributable to the conduct of the defendant/petitioner, but the same is not of that magnitude to deny the substantive right conferred under the statute. Since the advantage, which the plaintiffs/opposite parties may have gathered by the lapses of the defendant/petitioner, this Court feels that the compensation in the form of costs can sufficiently take care of the same.
The order impugned is thus set aside.
The application under Section 151 of the Code filed by the defendant/petitioner stands allowed.
The deposit of arrears rent by the defendant/petitioner out of time be treated to have been made within the statutory period, subject, however, to a payment of costs assessed at Rs. 50,000/- to be paid to the advocate-on-record of the plaintiffs/opposite parties before this Court within two weeks from date.
In default, this order shall automatically stand recalled and the order impugned shall revive.
With these observations the revisional application is disposed of.
(HARISH TANDON, J.)