In the High Court At Calcutta Ordinary Original Civil Jurisdiction Original Side GA1643of 2014 GA2907of 2014 GA2908of 2014 GA2909of 2014 GA2910of 2014 CS405of 2013 Ashok Kumar Bhagnani -Vs.Mansur Ahmed & Anr.
Before : The Hon’ble Justice Arijit Banerjee For the plaintiff : Mr.Sabyasachi Chowdhury, Sr.Adv.Ms.Somali Mukhopadhyay, Adv.For the defendants Heard On CAV On Judgment On Arijit Banerjee, J.:(1) : Mr.Jishnu Chowdhury, Adv.Mr.S.M.
Ismail, Adv.Mr.Soumabho Ghose, Adv.: 05.06.2015, 11.12.2015, 22.04.2016, 16.06.2016 19.07.2016, 12.08.2016, 22.11.2016, 03.01.2017 07.03.2017, 05.05.2017 : 15.05.2017 : 21.09.2017 The plaintiff filed the present suit on 22 November, 2013 claiming a decree for recovery of khas possession of the suit premises, decree for arrear rent, decree for damages and decree for mesne profits.
The writ of summons was received by the defendants on 10 December, 2013.
The defendants entered appearance through their learned Advocate on 12 December, 2013.
The written statement was served on the plaintiff’s learned Advocate on 17 February, 2014.
In view of the defendants failing to comply with the provisions of Secs.
7 (1) and (2) of the West Bengal Premises Tenancy Act, 1997 (in short the said ‘Act’).the plaintiff on 2 June, 2014 filed an application being GA No.1643 of 2014 under Sec.
7 (3) of the said Act for striking out the defence of the defendants.
The defendants filed an affidavit in opposition to the Sec.
7 (3) application wherein it was contended that they were not obliged to file any application under Secs.
7 (1) and (2) of the said Act because the suit has been filed before the ‘Civil Judge’.
During the hearing of the said Sec.
7 (3) application, the defendants served on the plaintiff’s learned Advocate copies of the applications under Secs.
7 (1) and (2) of the said Act being GA Nos.2908 of 2014 and 2910 of 2014 along with two applications under Sec.
5 of the Limitation Act being GA No.2907 of 2014 and GA No.2909 of 2014.
In the said applications for condonation of delay of about 272 days the defendants contended that the delay in filing the applications under Secs.
7 (1) and (2) of the said Act had been caused by the misguidance of the Learned Advocate of the defendants whom the defendants contended, they had subsequently removed as their Advocate.
(2) By a common order dated 13 January, 2015 a learned Judge of this Court allowed the applications of the defendants under Secs.
7 (1) and (2) of the said Act.
The plaintiff preferred an appeal against the said order.
The Hon’ble Appeal Court set aside the said order and remanded back the matter to the FiRs.Court for fresh consideration.
(3) Accordingly, the present applications are before me.
Contention of the plaintiff:(4) Appearing for the plaintiff, Mr.Sabyasachi Chowdhury, Learned Sr.Counsel submitted that after receiving the writ of summons, it was the duty of the defendants to file application(s) under Secs.
7 (1) and (2) of the said Act and deposit the rent before the Civil Judge within one month.
The defendants duly filed their written statement within one month of receiving the writ of summons but they failed and neglected to comply with the mandatory provisions of Secs.
7 (1) and (2) of the said Act.
Hence, the defence of the defendants is liable to be struck out.
In this connection, Mr.Chowdhury relied on a decision of the Hon’ble Apex Court in the case of MRS.Manju Choudhary-vs.-Dulal Kumar Chandra, AIR1988SC602 Learned Counsel also relied on a decision of a learned Single Judge of this Court in the case of M/S.Diopharma-vs.-Sr.Rabindra Nath Sadhukhan, (2013) 4 ICC614 (5) Mr.Chowdhury then submitted that the delay in filing the applications under Secs.
7 (1) and (2) of the Act should not be condoned as the explanation given for the delay is not acceptable or bona fide.
The plea of the defendants that they were prevented from filing the applications under Secs.
7 (1) and (2) of the said Act due to wrong advice of their earlier Advocate is not sustainable as after filing the said applications on 10 September, 2014, the defendants executed their Vakalatnama in favour of the same learned Advocate on 20 September, 2014 in Misc.
Case No.1961 of 2014 filed before the City Civil Court, 6th Bench.
Had the defendants been misguided by the said learned Advocate, they surely would not have engaged him subsequently to represent them in another proceeding.
(6) Learned Counsel further submitted that the plea taken by the defendants in the applications under Secs.
7 (1) and (2) of the said Act that the learned Advocate of the defendants lost sight of the amendment of 2005 to the said Act is not believable as the defendants in their affidavit in opposition filed in the plaintiff’s application under Sec.
7 (3) of the said Act admitted the fact that by the amendment of 2005, the words ‘Rent Controller’ were substituted by the words ‘Civil Judge’.
(7) Mr.Chowdhury then submitted that in the condonation of delay applications filed in connection with the applications under Secs.
7 (1) and (2) of the said Act, the defendants stated that they came to know about the 2005 amendment to the said Act whereby the words ‘Rent Controller’ were replaced by the words ‘Civil Judge’, only after the plaintiff filed the petition under Sec.
7 (3) of the said Act.
The application under Sec.
7 (3) was affirmed by the plaintiff and served on the defendants on 2 June, 2014 and the applications under Secs.
7 (1) and (2) of the said Act were filed by the defendants on 10 September, 2014.
No explanation has been given by the defendants in respect of the 98 days’ delay between 3 June, 2014 and 9 September, 2014.
Hence, the applications under Sec.
5 of the Limitation Act are liable to be dismissed.
(8) Mr.Chowdhury submitted that even if the defendants deposited the rent for the disputed period before the Rent controller, such deposits are invalid deposits.
Post 2005 amendment to the said Act, after filing of an eviction suit, the tenant is required to pay the rent to the Landlord or deposit the same before the ‘Civil Judge’.
There is no other way prescribed in the statute.
The tenant has to follow the procedure as prescribed in the statute.
A strict compliance with the statute is necessary.
In this connection learned Counsel relied on the Hon’ble Apex Court’s decision in the case of Atma Ram-vs.-Shakuntala Rani, (2005) 7 SCC211 (9) Mr.Chowdhury finally relied on a decision of the Apex Court in the case of Nasiruddin-vs.-Sita Ram Agarwal, AIR2003SC1543 in support of his submission that the rent legislation is normally intended for the benefit of the tenants but such benefits can be enjoyed by the tenants only on the basis of strict compliance with the statutory provisions.
Contention of the defendants:(10) Appearing for the defendants, Mr.Jishnu Chowdhury, learned Counsel submitted that from February, 2012, the plaintiff refused to accept rent and even prior thereto, for a few months, the plaintiff accepted rent but did not issue any rent receipt.
Rent was being deposited with the Rent Controller.
In this connection, learned Counsel referred to copies of the challans at pages 9 to 72 of the defendants’ supplementary affidavit dated 23 April, 2015.
He submitted that this is not disputed in the affidavit in opposition filed to the supplementary affidavit.
In the appeal filed by the defendants against the order dated 13 January, 2015, passed by the Learned Single Judge a point was taken by the plaintiff that the rent control challans were not on record.
The contention of the defendants was that they were only a technical defaulter and not a real defaulter, since deposit was being made with the Rent Controller.
However, this could not be substantiated in the absence of the rent control challans, and that is why the order of remand was passed by the Hon’ble Division Bench on 9 March, 2015.
Now that the challans are on record and this is not disputed by the plaintiffs, the defendants’ application under Secs.
7 (1) and (2) should be allowed and consequently, the plaintiff’s application under Sec.
7(3) of the said Act should be rejected.
(11) The default of the defendants is only technical.
It would have been a separate matter, if the defendants had not deposited the rent at all.
Since the learned Advocate of the defendants overlooked the 2005 amendment to the said Act, the rent was deposited before a wrong authority.
Technical defaults should be condoned and the discretion of the court should be exercised in favour of the defendants, submitted learned Counsel.
In this connection, he relied on the following decisions:(i) Miss Santosh Mehta-vs.-Om Parkash, AIR1980SC1664 (ii) M/s.B.P.
Khemka PVT.Ltd.-vs.-Birendra Kumar Bhowmick, AIR1987SC1010 (iii) Transfer Makers of India-vs.-Nemai Charan Mullick Alias Nemai Chand Mullick, (2002) 2 CLT78(HC).(iv) Swapan Dutta-vs.-Ashim Kumar Dutta, (2007) 2 ILR (Cal) 271.
(v) Madhabi Mukherjee-vs.-Dipali Mitra, (2012) 4 CHN (Cal) 154.
(12) Learned Counsel submitted that in the above referred cases there was no real default but only technical default.
The default was by the Advocate.
The defendants should not be made to suffer for the Advocate’s default specially in cases of the present nature.
In all the above referred cases, the Advocate’s default was condoned.
(13) Mr.Chowdhury then submitted that the remand order limits the scope of hearing of the present applications.
The only point before this Court today is whether the defendants are able to produce the rent control challans to substantiate the grounds contained in the earlier order of the Ld.
Single Judge dated 13 January, 2015.
The scope of hearing is limited.
The only question is whether or not rent was deposit regularly before the Rent Controller.
The defendants have now brought on record copies of the rent challans.
Hence, this point goes in favour of the defendants and their applications should be allowed.
(14) As regards the decisions cited by learned Counsel for the plaintiff on strict compliance with the statutory provisions, learned Counsel for the defendants submitted that in none of the decisions it has been held that the Court does not have power to extend the time period for deposit of rent by the tenant.
It is the discretion of the Court which has to be judicially exercised depending on the facts and circumstances of the case.
In the present case, the defendants relied on their learned Advocate who was unaware of the 2005 amendment of the said Act.
Hence, the rent instead of being deposited before the ‘Civil Judge’ was being deposited before the Rent Controller.
For such technical default, the defence ought not to be struck out.
Court’s View:(15) I have considered the rival contentions of the parties.
(16) The short point involved in these applications is whether or not the Court should condone the delay in filing the applications under Secs.
7(1) and (2) of the said Act and allow those applications.
If the said applications are allowed, the plaintiff’s application under Sec.
7(3) will necessarily fail.
On the other hand, if the defendants’ applications under Secs.
7(1) and (2) are rejected whether on merits or because of con-condonation of delay, then the application for striking out the defence should succeed.
(17) Admittedly, the writ of summons was served on the defendants on 10 December, 2013.
Accordingly, under Sec.
7(1) of the said Act the defendants were obliged to deposit the admitted arrear rent in Court within a month from that date.
Further, in case of a dispute regarding the quantum of rent, the defendants were required to file an application under Sec.
7(2) of the said Act within a month from 10 December, 2013.
Secs.
7(1).(2) and (3) of the said Act read as follows:“S.
7(1)(a) On a suit being instituted by the landlord for eviction on any of the grounds referred to in Section 6, tenant shall, subject to the provisions of sub-Section (2) of this Section, pay to the landlord or deposit with the Civil Judge 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 ten per cent per annum.
(b) Such payment or deposit shall be made within one month of the service of summons on the tenant or, where he appears in the suit without the summons being served upon him, within one month of his appearance.
(c) The tenant shall thereafter continue to pay to the landlord or deposit with the Civil Judge month by month by the 15th of each succeeding month, a sum equivalent to the rent at that rate.
(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 Judge only once and the period of such extension shall not exceed two months.
(3) If the tenant fails to deposit or pay any amount referred to in sub-section (1) or sub-section (2) within the time specified therein or within such extended time as may be granted, the Civil Judge shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit.” (18) On 2 June, 2014, the plaintiff filed an application under Sec.
7(3) of the said Act for striking out the defence.
On or about 8 September, 2014 the defendants filed applications under Secs.
7(1) and (2) supported by applications under Sec.
5 of the Limitation Act for condonation of delay of about 245 days in filing the applications under Secs.
7(1) and (2).(19) Mr.Sabyasachi Chowdhury, learned Counsel for the plaintiff vociferously argued that the explanation given by the defendants for the delay in filing their applications under Secs.
7(1) and (2) should not be accepted as the same is not credible or bona fide.
The defendants contended that they were misguided by their learned Advocate and hence, they changed their Advocate.
However, even thereafter, they engaged the same learned Advocate to represent their case in a litigation before the City Civil Court at Calcutta.
Had they been really misguided by their learned Advocate, it is highly improbable that they would have engaged the same learned lawyer subsequently in another litigation.
Hence, the story of being misguided by their learned lawyer has been concocted by the defendants.
There is surely some logic in the argument of Mr.Chowdhury but the possibility of there being an element of truth in the case of the defendants cannot be ruled out.
It is possible that the 2005 and 2006 amendments to the said Act escaped the notice of the defendants’ learned lawyer, as a result of which the learned lawyer advised the defendants to deposit the rent with the Rent Controller even after institution of the suit, although, the rent should have been deposited in this Court subsequent to filing of this suit.
(20) Mr.Sabyasachi Chowdhury relied on the Apex Court decision in the case of MRS.Manju Choudhary-vs.-Dulal Kumar Chandra (supra) in support of his submission that there is a duty cast on the Court to strike out the defence if there is a failure of the tenant to deposit the arrears of rent within the time period prescribed by the relevant statute.
In that case the prescribed time period was 15 days under the Bihar Building (LR & E.) Control Ordinance, 1982.
Further in that case it was found tha