Calcutta High Court (Appellete Side)
Kalithody Sahaderan Thirumulpad @ K.S. ... vs Rahul Moitra on 9 March, 2017
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashis Kumar Chakraborty
C.O. 4455 of 2016
With
C.O. 2628 of 2016
Kalithody Sahaderan Thirumulpad @ K.S. Thirumulpad
Vs.
Rahul Moitra
For the petitioner : Mr. Malabika Roy Dey
For the opposite party : Mr. Gouri Sankar Paul
Mr. Lalratan Mondal
Heard on : 30.01.2017 & 27.02.2017
Judgement on : 09.03.2017
Ashis Kumar Chakraborty, J.
Since the orders impugned in these revisional applications were passed in the ejectment suit filed by the opposite party, under the West Bengal Premises Tenancy Act, 1997 (in short "the Act of 1997"), deciding the applications filed by the defendant petitioner under Sections 7(1) and Section 7(2) of the Act of 1997 and the application of the opposite party under Section 7(3) of the Act of 1997 in order to avoid prolixity, both the revisional applications are disposed of by this common judgment and order.
The facts giving rise to these revisional applications may be briefly stated. The opposite party instituted the Ejectment Suit No. 31 of 2013, before the learned Civil Judge (Senior Division), 10th Court at Alipore, South 24-Parganas claiming eviction of the petitioner from the suit property on the ground, inter alia, for default in payment of rent. The suit was filed under the Act of 1997 and the revisional petitioner, as the defendant tenant filed two separate applications; the first, under Section 7(1) and the other under Section 7(2) of the Act of 1997. In both the said applications it was the case of the petitioner that he was a tenant in respect of the suit property under Smt. Gouri Roy, since deceased (hereinafter referred to as "the original owner") at the monthly rental of Rs.800/-; during the subsistence of the tenancy, on September 08, 2005 he entered into an agreement with the original owner to purchase the suit property for a consideration of Rs.7,00,000/- within January 31, 2006 and paid Rs.3,00,000/- to the original owner as earnest money or part consideration but the original owner died on September 22, 2005. According to the petitioner the original owner had no child, in spite of his various efforts and issuance of a public notice he could not find any heir and legal representative, either of the original owner or of her pre-deceased husband. However, after receipt of a notice under Section 6(4) of the Act of 1997 from the opposite party claiming to have become the owner of the suit property by virtue of duly probated Will of the original owner, the petitioner filed Title Suit No. 2748 of 2012, before the learned Court below, against the opposite party claiming a decree for specific performance of the agreement for sale of the suit property entered into by the original owner, since deceased. The petitioner also claimed to have filed Title Suit No. 2533 of 2013 (originally numbered as Title Suit No. 42 of 2013), before the learned Civil Judge (Junior Division), 2nd Court at Alipore against the opposite party, claiming that he is not liable to pay any rent in respect of the suit property from the month of February, 2006. The petitioner alleged that up to the month of August, 2005 he had paid rent to the original owner and in view of the said agreement dated September 08, 2005 entered with the original owner, from the month of February, 2006 he is not liable to pay any rent in respect of the suit property. In the application under Section 7(1) of the Act of 1997 the petitioner prayed for an order before the learned Court below to allow him to deposit the arrear monthly rent in respect of the suit property for the months of September, 2005 to January, 2006 together with statutory interest with the learned Court below.
In the application under Section 7(2) of the Act of 1997 the petitioner only prayed for the learned Court below to adjudicate his liability to pay monthly rent in respect of the suit property from the month of February, 2005 onwards.
On March 28, 2016 the learned Court below heard both the applications filed by the petitioner under Section 7(1) and Section 7(2) of the Act of 1997. By order dated March 28, 2016 the learned Court below held that though the defendant petitioner had admitted the default in payment of rent between September, 2005 to January 2006 but he has not filed any document showing the payment of current rent, as well as arrear rent. The learned Court below held that as the petitioner did not deposit the arrear rent for admitted period of default, he has not fulfilled the legal requirement of availing the benefit of Sections 7(1) and Section 7(2) of the Act of 1997. It is the said order dated March 28, 2016 which has been assailed by the petitioner in the first revisional application, C.O. 2628 of 2016. The petitioner, however, could not obtain any interim order in the first revisional application.
During the pendency of the first revisional application before this Court, the opposite party filed an application in the ejectment suit, under Section 7(3) of the Act of 1997, praying for striking out the defence of the petitioner in the suit against delivery of possession. By order dated November 04, 2016 the learned Court below allowed the said application of the opposite party by striking out the defence of the petitioner in the said ejectment suit against delivery of possession. It is the said order dated November 04, 2016 which is the subject matter of challenge in the second revisional application, C.O. 4455 of 2016.
Ms. Malabika Roy Dey, learned advocate appearing for the petitioner submitted that the aforementioned agreement for sale of the suit property entered into by the original owner in favour of the petitioner was required to be completed within January 31, 2006 and, therefore, the petitioner is not liable to pay any rent in respect of the suit property from the month of February, 2006 and he has also filed two suits against the opposite party, one claiming specific performance of the agreement for sale entered into by the original owner and the other, claiming a declaration that he is not liable to pay any rent for the suit property from the month of February, 2006. Urging these facts it was contended on behalf of the petitioner that the learned Court below committed an error of law in passing the first impugned order dated March 28, 2016 rejecting both the applications of the petitioner filed under Section 7(1) and Section 7(2) of the Act of 1997, respectively.
Ms. Roy De assailed the second impugned order dated November 04, 2016 passed by the learned Court below on two grounds. It was first contended that during pendency of the first revisional application, C.O. 2628 of 2016 against the order dated March 28, 2016 the learned Court below ought not to have heard the application of the opposite party under Section 7(3) of the Act of 1997. It was the second contention that in any event without deciding the application under Section 7(2) of the Act of 1997 on merit, by adjudicating the arrear rent if any, payable by him to the opposite party the learned Court below committed an error of law in allowing the application of the opposite party under Section 7(3) of the Act of 1997. According to Ms. Roy De, it is settled law that in a suit for ejectment under the Act of 1997 when the defendant files an application under Section 7(2) of the Act of 1997 without first deciding the said application on merit, the Court cannot entertain an application under Section 7(3) of the Act of 1997 for striking out the defence of the defendant against delivery of possession. In support of such contention, she relied on a Single Bench decision of this Court in the case of re : Dwarkadas Raghubir Prosad Chowdhury, reported in 1987 (1) CLJ 479. The said decision was in a case where the ejectment suit was filed under the provisions of the West Bengal Premises Tenancy Act, 1956 (in short "the Act of 1956"). She also cited another decision of a learned Single Judge of this Court in the case of Ashok Kumar Bhagnani vs. Mansur Ahmed, reported in 2015 (4) CHN (Cal) 699.
However, Mr. Gouri Sankar Paul, learned advocate appearing for the plaintiff opposite party strenuously contended that none of the impugned orders passed by the learned Court below in the present case suffers from any infirmity. According to him, in the present case the application filed by the petitioner under Section 7(1) of the Act of 1997 was not maintainable. He submitted that when the petitioner did not deposit the admitted arrear rent along with his application under Section 7(2) of the Act of 1997 within the time stipulated in Section 7(1) of the Act of 1997, the learned Court below was absolutely correct to pass the second impugned order dated November 04, 2016 allowing the application of the opposite party under Section 7(3) of the Act of 1997 by directing striking out of the defence of the petitioner in the eviction suit against delivery of possession. It was contended that though the petitioner challenged the first impugned order dated March 28, 2016 before this Court by filing the revisional application, C.O. 2628 of 2016 but he was unable to obtain any interim order from this Court directing stay of operation of the said order and mere pendency of the first revisional application, C.O. 2628 of 2016 before this Court would not prevent the learned Court below deciding the application filed by the opposite party under Section 7(3) of the act of 1997. Relying on the decision of the Supreme Court in the case of Nasiruddin & Ors. Vs. Sitaram Agarwal, reported in (2003) 2 SCC 577, Mr. Paul submitted that the word "shall" appearing in Section 7(3) of the Act of 1997 has to be held mandatory and in the facts of the present case, the learned Court below committed no error of law in passing the order dated November 04, 2016 impugned in the second revisional application.
I have carefully considered the materials on record, as well as the arguments advanced by the learned advocates appearing for the respective parties. In the present case, in order to decide the challenge of the petitioner against the orders dated March 28, 2016 and November 04, 2016 passed by the learned Court below, it is necessary to ascertain the scope and effect of the provisions contained in Sections 7(1) and 7(2) of the Act of 1997. A reading of the provisions contained in Section 7(1) and Section 7(2) of the Act of 1997 makes it abundantly clear that the same are independent of each other. Section 7(1) of the Act of 1997 requires a tenant to pay or deposit an arrear rent when he does not question the amount of such arrears at all, at any stage of the proceeding. Section 7(2) of the Act of 1997 contains certain requirements namely, (i) that there must be a dispute raised as to the amount of rent payable; (ii) that the tenant must, for the purpose of the said section, make deposit of all admitted arrears within the statutory period; and (iii) that the said deposit, if any, must be accompanied by an application praying for determination of the amount of rent. From a reading of Section 7(1) of the Act of 1997 it is clear that when a tenant does not dispute either the relationship of landlord and tenant between the parties or the arrear amount of rent, he has to only deposit the arrear rent in Court or pay the said amount to the plaintiff landlord within the stipulated time and he does not need to file any application before the Court. It is Section 7(2) of the Act of 1997 which requires an application to be filed by the defendant tenant before the Court for adjudication of the arrear rent payable by him which must be accompanied by the deposit of admitted arrear rent. Of course, the power of the Court to adjudicate the arrear of rent payable by the defendant tenant also includes the power to adjudicate any dispute raised by the defendant tenant disputing the relationship of landlord and tenant between the parties. In the present case, when the petitioner disputed his liability to pay rent in respect of the suit property from the month of February, 2006 onwards and filed the application under Section 7(2) of the Act of 1997 before the learned Court below seeking adjudication of his liability to pay rent in respect of the suit property from the month of February 2006, there was no scope to maintain an application under Section 7(1) of the Act of 1997. Therefore, when the application of the petitioner under Section 7(1) of the Act of 1997 was not maintainable the decision of the learned Court below to reject the said application cannot be faulted the any ground.
Further, when the defendant petitioner admitted his liability to pay the arrear rent in respect of the suit property from the month of September, 2005 to January, 2006 at the rate of Rs.800/- per month at the time of filing of an application under Section 7(2) of the Act of 1997 he was mandatorily required to deposit the said admitted arrear rent, together with the statutory interest thereon in the learned Court below. Therefore, when the petitioner filed the application under Section 7(2) of the act of 1997 without depositing the admitted arrear rent for the months of September, 2005 to January, 2006 together with statutory interest at the rate of 10% per annum, the learned Court below committed no error of law rejecting the said application. Even in the case of Dwarkadas Raghubir Prosad Chowdhury (supra) cited by the petitioner, while interpreting the provisions contained in Section 17(2) of the Act of 1956, which were similar to Section 7(2) of the Act of 1997, the learned Single Judge of this Court held that if the tenant also raises any dispute as to the amount of rent payable by him, then also together with an application under Section 17(2) of the Act of 1956, he has to deposit, within the time specified in Section 17(1) of the Act of 1956, the amount admitted by him to be due from him. Therefore, the said decision does not come to any assistance of the petitioner.
Although, the petitioner challenged the first impugned order dated March 28, 2016 by filing the first revisional application, C.O. 2628 of 2016 before this Court , but he was unable to obtain any interim order directing stay of operation of the said order. Mere pendency of the first revisional application could not prevent the learned Court below to hear the said application of the opposite party tender Section 7(3) of the Act of 1997.
Section 7(3) of the Act of 1997 provides that if the tenant fails to deposit or pay any amount referred to in Section 7(1) or Section 7(2) of the Act of 1997, 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 proved with the hearing of the suit.
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 his 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 the Rent Control Act is a welfare legislation not merely beneficial enactment for the tenant, but also for the benefit of the landlord.
Following the decision of the Hon'ble Supreme Court in the case of Nasiruddin (supra) cited by the opposite party, in the case of Bina Devi Binani vs. Ramesh Kumar Gupta, reported in (2015) 3 Cal LT 384 (HC) this Court held that the word "shall" used in Section 7(3) of the act of 1997 is imperative in nature. Therefore, when the petitioner did not deposit the admitted arrear rent for the moths of September, 2005 to January 2006 together with the statutory interests thereon, the learned Court below was correct to reject the application under Section 7(2) of the Act of 1997. Consequently, the learned Court below committed no error of law in passing the second impugned order dated November 04, 2016 allowing the application of the opposite party under Section 7(3) of the Act of 1997.
So far as the decision in the case of Ashok Kumar Bhagnani (supra) cited by the petitioner, in the said case a learned Single Judge of this Court held that even after the plaintiff landlord filed application under Section 7(3) of the Act of 1997 for striking out the defence of the defendant against delivery of possession, the defendant tenant can maintain an application under Section 7(1) of the Act of 1997 to deposit the admitted arrear rent. It was further held that Section 7(3) grants the Court the power to extend the time for the tenant to make deposit of arrear rent. With utmost humility, I find that such finding is contrary to the plain language of Section 7(3) of the Act of 1997. Further, in the said case the decision of the Supreme Court in the case of Nasiruddin (supra) was not placed before the Court. For all these reasons, I am unable to apply the said decision in this case.
For all the foregoing reasons, I find that there is no merit in either of these two revisional applications. Accordingly, both the revisional applications, C.O. 2628 of 2016 and C.O. 4455 of 2016 stand rejected.
However, there shall be no order as to costs.
Let urgent certified copies of this judgment, if applied for, be made available to the parties upon compliance with all requisite formalities.
(Ashis Kumar Chakraborty, J.)