Calcutta High Court (Appellete Side)
Unknown vs Sri Hiralal Bhatter & Ors on 10 February, 2017
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
BEFORE:
THE HON'BLE JUSTICE SAHIDULLAH MUNSHI
C.O. No.957 of 2016 Ashok Kumar Talwar ... Defendant/Petitioner
-Versus-
Sri Hiralal Bhatter & Ors.
... Plaintiffs/Opposite Parties Mr. Anit Kumar Rakshit, Mr. Sankar Kr. Basu, Ms. Chandramala Mukherjee ... For the petitioner Mr. Debajyoti Basu, Mr. Manabendra Saha Roy, Mr. Suvadip Bhattacharyya Mr. Animesh Pal ... For the plaintiffs/opposite parties Heard on : 16.09.2016, 05.10.2016, 28.11.2016, 02.12.2016. Judgment on : February 10, 2017.
Sahidullah Munshi, J.:-
This revisional application, at the instance of the defendant, is directed against Order No.11 dated 30th January, 2016, passed by the learned 3rd Judge, Small Causes Court at Calcutta in Ejectment Suit No.6550 of 2014. The opposite parties/plaintiffs filed a suit for recovery of possession against the defendant/petitioner on the ground of default, change of mode of user of the suit premises and reasonable requirement. The defendant/petitioner entered appearance in the suit and filed an application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997. Petitioner also filed a written statement denying all allegations made in the plaint. In the application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997, the petitioner prayed for determination of the disputes regarding rate of rent and amount of arrears of rent payable by the defendant, if any, in respect of the suit premises. While making such prayer in the said suit, the defendant asserted that he paid rent on behalf of the said company to Sushila Devi Bhatter up to the month of March, 2002 against rent receipts. It has been contended by the defendant/petitioner that he paid a total sum of Rs.16,277/- (Rupees Sixteen Thousand Two Hundred Seventy Seven) only, vide one banker's cheque of State Bank of India issued on 20th March, 2004 for a sum of Rs.5,379/- (Rupees Five Thousand Three Hundred Seventy Nine) only, vide one demand draft of State Bank of India issued on 27th March, 2004 for a sum of Rs.5,469/- (Rupees Five Thousand Four Hundred Sixty Nine) only, and another banker's cheque of State Bank of India issued on 13th May, 2004 for a sum of Rs.5,429/- (Rupees Five Thousand Four Hundred Twenty Nine) only. It has been stated by the petitioner that said banker's cheque and demand draft were duly encashed by the said Sushila Devi Bhatter and deposited the same at Punjab National Bank, Clive Row Branch, Kolkata. The said Sushila Devi Bhatter illegally and wrongfully did not issue subsequent rent receipts for the period from April, 2002 to December, 2005. It has been stated by the petitioner that from the month of April, 2002 till December, 2005, the rent for 45 months @ Rs.357/- (Rupees Three Hundred Fifty Seven) only, amounts to Rs.16,065/- (Rupees Sixteen Thousand Sixty Five) only, and the said Sushila Devi Bhatter already received the said rent but did not issue receipts therefor. It has been contended by the petitioner that an Ejectment Suit being No.538 of 2005 was filed by the said Sushila Devi Bhatter. Sushila Devi Bhater died during the pendency of the suit and the present plaintiffs were substituted as plaintiffs in the said suit. The substituted plaintiffs withdrew the said suit without obtaining any leave from the learned Court and has filed the present suit. The plaintiffs have filed a written objection to the petitioner's application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 and a copy of which has been annexed at page 38 of the revisional application. The plaintiffs have dealt with the defendant/petitioner's averment under paragraph 6 of his application under Section 7(2) of the aforesaid Act with regard to payment of rent amounting to Rs.16,277/- (Rupees Sixteen Thousand Two Hundred Seventy Seven) only. Save and except saying that such averment is denied as false, the plaintiffs have not made any specific averment that they have not received such banker's cheque, demand draft and that they have not encashed those banker's cheque and demand draft in Punjab National Bank.
Appearing for the petitioner Mr. Rakshit, learned Counsel, submitted that the order impugned cannot be sustained on the ground that the learned Court below has failed to appreciate that rent was duly paid by the defendant/petitioner through demand draft and banker's cheque but no receipt was granted by the plaintiffs. The learned Court below ought to have disbelieved the denial of the plaintiffs with regard to payment of the said amount by the defendant/petitioner. Mr. Rakshit submitted that the learned Court below has failed to take into account that while on the question of default since January, 1994, a suit was previously instituted and such suit having been withdrawn without leave of the Court to file afresh, the default for which the earlier suit was instituted cannot be a ground in the present suit. Mr. Rakshit has further submitted that when the default of rent was claimed by the landlords in the earlier Act, such default cannot be carried forward in the new Act of 1997. According to Mr. Rakshit, since rent receipt has been granted up to March, 2002 there cannot be any default prior to the said period. It is only from April 2002 to December, 2005, the arrear can be claimed but according to him, there is no default for the said period inasmuch as payment has been made by the defendant/tenant in respect of which no receipt has been granted by the landlord. Therefore, according to Mr. Rakshit, learned Court below ought not to have passed the order impugned holding that the defendant is a defaulter for a period from January, 1994 to December, 2015 and the learned Court below has exercised a jurisdiction not vested with him under the law and the order impugned should be set aside.
In support of his aforesaid submission Mr. Rakshit has relied on the following judgments in the case of -
• Rani Bala Debi - Vs. - Kamal Krishna Nath reported in 69 CWN 511.
• Biraj Mohan Bhattacharjee - Vs. - Ajit Kumar Basu reported in 75 CWN 156.
• Ghanshyam Das Gupta - Vs. - Devilal & Ors., reported in (1990) 1 SCC 465.
Relying on Rani Bala Debi (supra) Mr. Rakshit submitted that pre-Act default would not be construed as default under the present Act. According to him, the default under 1956 Act cannot be considered to be a default in 1997 Act.
Relying on Biraj Mohan (supra) Mr. Rakshit reiterated that pre-Act default cannot be taken into consideration. This judgment approves the views taken in Rani Bala Debi (supra).
Relying on Ghanshyam Das Gupta (supra) Mr. Rakshit submitted that the said report supports the views of the Calcutta decisions in Biraj Mohan Bhattacharjee(supra) and Rani Bala Debi (supra).
Mr. Debajyoti Basu, appearing for the opposite parties/plaintiffs, submitted that the defendant is a defaulter since 1994 although, he claimed that he made payment to the plaintiffs since April, 2002 to December, 2005 but nothing could be proved before the Court below that such payment was actually made and the same was received by the landlords. According to him, onus lies upon the defendant to prove that he actually made payment of rent to the landlords. According to Mr. Basu, the defendant could not satisfy the Court as to what prevented him to take steps against the landlords for not issuing rent receipt for the said period for which he made payment of rent to the landlord. According to Mr. Basu, the learned Court below has rightly held that the defendant is defaulter of rent since 1994 and the learned Court below had rightly rejected the petitioner's application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997.
In support of his contention he relied on the following judgments in the case of -
• Ashok Kumar Bhagnani - Vs. - Mansur Ahmed & Anr., reported in 2015(1) CLJ(Cal) 333.
• Sri Subrata Mukherjee - Vs. - Smt. Bishakha Das with Sri Pratap singh Bengani & Ors. - Vs. - M/s. Calcutta Tent Industries, reported in (2012) 1 WBLR (Cal) 595.
• Smt. Bina Devi Binani - Vs. - Ramesh Kumar Gupta (since deceased) by Smt. Kiran Gupta, an unreported judgment dated 14th May, 2015 in C.O.1847 of 2013.
I have heard the parties at length, considered the materials on record and the decisions cited by the learned advocates for the parties as also the impugned judgment and order passed by the learned Court below. While giving serious thought to the order impugned, two questions emerge out, viz. :
1) Whether learned Court below rightly held that the deposits made by the defendant/petitioner are not valid deposits of rent for the period April 2002 to December, 2005;
2) Whether the plaintiff is entitled to arrear rent since the month of January, 1994 to December, 2015.
So far the first question is concerned, the learned Court below has held that some payments were made for a sum of Rs.16,277/- (Rupees Sixteen Thousand Two Hundred Seventy Seven) only, to the plaintiffs but the amount was not considered to be the rent for the period April, 2002 to December, 2005. According to the defendant, the said amount paid by them under banker's cheque and demand draft which is equivalent to the rent for the said period when it was being paid by the defendant/tenant. The learned Court below has disbelieved such payment holding, inter alia, that the defendant failed to prove the same and that the plaintiffs/landlord would not get the opportunity of cross- examining the defendant/tenant. Question arises as to whether any presumption can be drawn in favour of the payment of rent through such banker's cheque and demand draft by the defendant/tenant to the landlady when it is the admitted case that such banker's cheque and demand draft were encashed by Sushila Devi Bhatter. Question of granting rent receipt would have been immaterial if it were proved that rent equivalent to the said period has been paid by the defendant/tenant by banker's cheque or by demand draft.
Payment of some money by the tenant to his landlord is one thing but payment of such amount whether could be construed to be rent for some particular tenancy months, is a different thing. If one claims that he has paid rent, he is to prove that rent has been paid. If one alleges that despite payment of rent no receipt was issued by landlord then the tenant has to take recourse of the law provided under the 1997 Act. If nothing is done, simply by saying that some money he has paid, he has paid rent, would not be sufficient to escape from the hurdle of default. At best the money bona fide paid would be adjusted against the total default. However, in this case, materials disclosed by the tenant shows that an amount of Rs. 16,277/- (Rupees Sixteen Thousand Two Hundred Seventy Seven) only, has been paid to Sushila Devi Bhatter through banker's cheque and demand draft and the same has been encashed by her then onus lies upon the said Sushila Devi Bhatter, who encashed the banker's cheque and the demand draft in her account. Therefore, the learned Court below has committed gross illegality in not holding that presumption of payment is in favour of the tenant whose demand draft and banker's cheque had been encashed by Sushila Devi Bhatter. Therefore, the learned Court below ought to have held that tenant made payment of the said amount in absence of any rebuttal made by the plaintiff that no such payment was received by Sushila Devi Bhatter. Learned Court below disbelieved payment of such amount by the tenant/defendant. This part of the finding is liable to be set aside and the landlady, Sushila Devi Bhatter, having not taken the opportunity of rebutting the presumption, it will be accepted that the tenant has made payment of the said amount and such amount has to be adjusted against the total amount of rent due and payable by the tenant.
By making such payment it cannot be held that the tenant has not committed any default for a specified period that is to say, from April 2002 to December, 2005. At best it can be said that the tenant has made some amount of money towards the monthly rent payable to the plaintiff. Therefore, no finding can be arrived at that the tenant has made payment of monthly rent for the period from April, 2002 to December, 2005 in absence of rent receipt and that the tenant will not be defaulter for the said period from April, 2002 to December, 2005. If it is considered that the defendant is not a defaulter for the period from April, 2002 to December, 2005, then it has to be held that the rent due and payable by the tenant prior to April, 2002 shall be deemed to have been waived by the plaintiff but that is not the case here. The defendant/tenant is only entitled to adjustment of the said amount of Rs.16,277/- (Rupees Sixteen Thousand Two Hundred Seventy Seven) only, against the total arrear of rent and in this regard, the finding arrived at by the learned Court below, that the defendant did not seek relief under the Premises Tenancy Act allegedly for non- granting of the rent receipt by the plaintiff in his favour despite making payment of the said amount, does not appear to be illegal.
Section 7 of the West Bengal Premises Tenancy Act, 1996 applies to the proceedings for ejectment whatever may be the grounds. Section 7 is applicable only when a proceeding for eviction of a tenant is instituted by the landlord on any of the grounds referred to in Section 6 of the Act. Section 7 comes into play when the landlord institutes a proceeding for eviction of the tenant. Necessarily, such a proceeding can be instituted on one or more of the grounds referred to in different clauses of sub-Section (1) of Section 6. Clause (a) of sub-Section (1) of Section 7 casts mandatory duty upon the tenant either to pay the admitted arrears of rent either to the landlord, or to deposit the same with the Court who is in seisin of the ejectment proceeding together with interest @ 10% per annum. Section 7(1)(a) provides that all arrears of rent are to be paid to the landlord or deposited with the Court together with interest @ 10% per annum. Sub-Section (1) speaks of payment or deposit of 'all arrears of rent'. The deposit of payment to be made under Section 7(1) is, of course, subject to sub-Section (2). Sub-Section (2) is attracted where the tenant raises a dispute about the amount of rent payable by him if he comes with a case that what the landlord has stated as regards the rate of rent of the suit premises is not correct or the amount said to be lying due as arrears of rent is not correct, the tenant is required to file an application under sub-Section (2) but the tenant must join issue with the landlord about the rate of rent but may dispute the landlord's assertion as regards the arrear, in that case, the tenant need not make any deposit under clause (a) of sub-Section (1) of Section 7 of the West Bengal Premises Tenancy Act, 1997. In such circumstances, the tenant must file an application under Section 7(2). The expression 'all arrears of rent' means the arrears of rent admitted by the tenant and such arrears are the arrears on the date of deposit of payment under clause (a).
The defendant/tenant/petitioner filed two rent receipts before the Court, one dated 31st January, 2002 and the other dated 31st March, 2002. The learned Court below has held that since according to the defendant/tenant, the amount of rent payable by him was Rs.357/- (Rupees Three Hundred Fifty Seven) only, and the said rent receipts stood for Rs.387/- (Rupees Three Hundred Eighty Seven) only, per month, there was sufficient reason for the Court below to disbelieve the said rent receipts. However, it appears from the records that the defendant/tenant did not make any attempt to prove the said two rent receipts. Therefore, they are not entitled to get any benefit out of that and I do not find any wrong committed by the learned Court below in disbelieving the said rent receipts.
So far the arrear rent from January, 1994 till the date of filing of the suit, the submission of Mr. Rakshit that in view of the withdrawal of the previous suit the amount of default claimed in that suit cannot be claimed by the plaintiff, cannot be supported. The decision cited by Mr. Rakshit has no application in the present case simply because according to Mr. Rakshit, no leave was obtained to file a suit afresh and according to him, since the present suit is not maintainable, the default which was claimed earlier, cannot be claimed in the present suit, is without any basis. Mr. Rakshit submitted that pre-Act default cannot be claimed. Such submission, in my view, is not tenable unless one can show that any specific bar has been created under the 1997 Act regarding claim of such default prior to the enactment of the present Act under which the present suit has been instituted. Therefore, unless and until it is held that the present suit is not maintainable, such submission cannot be entertained. At the moment the learned Court below has committed no error in calculating the default since January, 1994.
However, if during the final hearing of the suit Court comes to a conclusion while deciding the issue of maintainability together with other issues that the suit is barred for not having obtained leave to file afresh on the ground of default, the question would be otherwise and obviously consequences will follow. If such a situation arises, then definitely the tenant will get the benefit of the same but for the present, the arrear rent as calculated by the learned Court below has to be paid by the tenant together with statutory interest. Since substantial alteration has been made in the judgment and order passed by the learned Trial Court I set aside the said order with a direction upon the learned Court below to make a fresh calculation of arrear rent in terms of the observation made hereinabove and to deduct therefrom a sum of Rs.16,277/- (Rupees Sixteen Thousand Two Hundred Seventy Seven) only, which has already been paid by the defendant. The learned Court below is directed to decide the matter afresh and calculate the arrear together with interest statutorily payable by the tenant.
Revisional application is disposed of.
There will be no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.
(Sahidullah Munshi, J.)