Air Lift vs Kartick Chandra Chandra and Others

Jyotirmay Bhattacharya, J.—One Lakshmi Narayan Chandra since deceased filed a suit for eviction against the petitioner herein on various grounds under the West Bengal Premises Tenancy Act. The said suit which was filed sometime in April, 1991 was registered as Ejectment Suit No. 211 of 1991. On transfer, the said suit was renumbered as Ejectment Suit No. 346 of 2002.

Since before the institution of the said suit the defendant had been depositing the rent in the office of the rent Controller at Calcutta at the contractual rate of Rs.640 per month in the name of the said landlord. Even after institution of the instant suit, the defendant/petitioner herein continued to deposit the rent regularly in the name of the said landlord in the office of the Rent Controller, Calcutta though his prayer for deposit of the current rent in Court was allowed by the learned Trial Judge as per the provision u/s 17(1) of the West Bengal Premises Tenancy Act, 1956.

The original plaintiff namely Lakshmi Narayan Chandra died on 6th November, 1993 during the pendency of the said suit. After his death an application for substitution was filed by his son who is the opposite party No. 1 herein on 3rd February, 1994. A copy of the said application was served upon the learned Advocate of the petitioner on 14th November, 1995 i.e. more than a year after the said application was filed. The said application for substitution was, in fact, allowed on 21st August, 2002 i.e. eight years after the said application was filed in Court.

Even thereafter the defendant/petitioner herein continued to deposit the rent in the name of the original plaintiff since deceased in the office of the Rent Controller, Calcutta up to January, 2006.

The petitioner claims that he continued to deposit the rent upto June, 2002 in the name of the original plaintiff even after his death as he was advised to do so until substitution is effected. Even after the substitution was effected and the present plaintiffs were brought on record in August, 2002, still then, such deposits were continued to be made by one Mrs. Sarbani Mandy, an Advocate�s clerk who did so up to January, 2006 due to oversight and without adhering to the instruction given to her by the petitioner�s learned Advocate for depositing the rent from September, 2008 in the name of the substituted plaintiffs, as substitution was effected in August, 2008.

Subsequently after realizing that the deposits which were made by the defendant in the name of the deceased plaintiff for the post substitution period, are invalid and/or irregular, the defendant/petitioner filed an application u/s 151 of the CPC inter alia praying for acceptance of those irregular deposits which were made after the death of the original plaintiff till January, 2006 as valid deposit. An affidavit filed by the Advocate�s clerk namely, Mrs. Sarbani Nandy admitting her default in this regard, was also submitted by the defendant petitioner herein along with the defendant�s said application u/s 151 of the Code of Civil Procedure.

The said application was filed by the defendant/petitioner during the pendency of the defendant�s application u/s 17(2) of the West Bengal Premises Tenancy Act which is still pending for consideration before the learned Trial Judge.

Though the validity of such deposit is a matter of consideration in connection with the petitioner�s application u/s 17(2) of the West Bengal Premises Tenancy Act, but still then, the learned Trial Judge, instead of deferring the consideration of the petitioner''s application under 151 of the CPC till the hearing of the defendant''s application u/s 17(2) of the said Act, considered the defendant''s said application u/s 151 of the CPC separately and ultimately dismissed the petitioner''s said application by holding inter alia that since the defendant had the knowledge of the death of the original plaintiff, the defendant ought not to have deposited the rent in the name of the deceased plaintiff before the office of the Rent Controller at Calcutta after the death of the original plaintiff. The learned Trial Judge, thus, held that the defendants were very much negligent in discharging his duties regarding deposit of the current rent and, as such, the petitioner''s prayer for acceptance of those deposits as valid deposit was rejected by the learned Trial Judge.

Being aggrieved by and dissatisfied with the said order of the learned Trial Judge, the instant Revisional Application has been moved by the defendant/petitioner herein before this Court.

Heard Mr. Roy Chowdhury, learned Senior Counsel appearing for the petitioner and Mr. Chatterjee learned Senior Counsel appearing for the opposite party No. 1.

Considered the materials on record including the order impugned.

On perusal of the impugned order this Court finds that it is rightly pointed out by Mr. Roy Chowdhury that the explanation which was given by his client in his application u/s 151 of the CPC regarding the cause of such irregular deposit, was not considered at all by the learned Trial Judge while disposing of the defendant�s said application.

Mr. Chatterjee submits that such consideration was not at all necessary as there was no bona fide in the petitioner''s contention to the effect that such deposits were made by the Advocate''s clerk due to oversight and without adhering to the instructions given to her by the petitioner''s learned Advocate as aforesaid. Mr. Chatterjee contended that even assuming that such instruction was given by the petitioner''s Advocate to the concerned clerk still then, it cannot be believed that the deposits for such a long period up to January, 2006 were made by the clerk concerned due to her mistake. Mr. Chatterjee further contended that if the petitioner had any diligence in taking appropriate steps in depositing rent, then such defects in depositing the rent for the post substitution period, could have been very well detected by the petitioner himself after going through the first challan through which the rent of the suit premises was deposited in the name of the deceased plaintiff after substitution was effected.

Mr. Chatterjee further contended that it is not the case of the petitioner that all the challans for depositing rent upto January, 2006 were kept with the Advocate''s clerk and the petitioner had no occasion to go through those challans before January, 2006, when such irregularities were allegedly discovered. According to Mr. Chatterjee, the explanation given by the petitioner in this regard is absolutely unreliable and cannot be believed.

Mr. Chatterjee further submits that the death of the original plaintiff was not unknown to the defendant. The heirs of the original plaintiff who inherited the suit premises after the death of the original plaintiff was also not unknown to the defendant. The petitioner has also not given the name of his lawyer who instructed him to deposit the rent in the name of the deceased landlord. According to Mr. Chatterjee the reasons for not depositing the rent in the name of the heirs of the original plaintiff immediately after the death of the original plaintiff, have not been explained properly by the petitioner. As such Mr. Chatterjee submits that the petitioner''s application u/s 151 of the CPC was rightly rejected by the learned Trial Judge for want of bona fide on the part of the defendant/petitioner herein.

Though there are some substance in the submission of Mr. Chatterjee, but, still then, this Court cannot ignore the fact that the defendant''s application u/s 17(2) of the West Bengal Premises Tenancy Act, 1956 is yet to be disposed of by the learned Trial Judge on merit. It is settled law of the land that while disposing of the defendant�s application u/s 17(2) of the said Act, the Court is required to calculate the entire arrear which is payable by the defendant to his landlord in respect of the suit premises up to the date of disposal of the defendant�s application u/s 17(2) of the said Act. It is equally settled that the Court cannot pass a decree for eviction on the ground of post suit default in payment of rent. If that be so then the Court while disposing of the defendant''s application u/s 17(2) of the said Act is not only required to consider the validity of such deposits but also is required to calculate the entire arrear of rent payable by the petitioner upto the date of disposal of the petitioner''s application u/s 17(2) of the said Act and is also required to permit the petitioner to deposit such arrear rent on account of such invalid deposits.

Thus, in any event when the Court was required to consider the validity of such deposits while disposing of the petitioner''s application u/s 17(2) of the said Act, and further since the said consideration is a material consideration for disposing of the defendant''s application u/s 17(2) of the said Act, the learned Trial Judge, in my view ought to have considered the defendant�s application u/s 151 of the CPC along with the defendant�s said application u/s 17(2) of the said Act.

This Court is still at a loss to understand as to why such an application u/s 151 of the CPC was filed by the petitioner during the pendency of his application u/s 17(2) of the said Act particularly, when the adjudication which was sought for in the said application u/s 151 of the Civil Procedure Code, is a matter of consideration in the petitioner''s application u/s 17(2) of the said Act.

Be that as it may, since the learned Trial Judge disposed of the plaintiff''s application u/s 151 of the CPC independently, this Court is required to consider the propriety of the said order herein.

I have already indicated above that while disposing of the defendant''s application u/s 151 of the Code of Civil Procedure, the learned Trial Judge did not consider the explanation which was given by the petitioner regarding the cause of such irregular deposits. The petitioner claims that those deposits upto the date of substitution of the plaintiffs in the place of the original plaintiff, were made under the legal advice given by his Advocate.

The petitioner further claims that the subsequent deposits were made by the Advocate''s clerk without adhering to the instruction given by his learned Advocate as aforesaid.

Under such circumstances, the petitioner claims that the petitioner was not at fault in making such irregular deposits. According to the petitioner irregularity, if there be any, was resulted either due to wrong advice given by his lawyer or due to mistake made by his Advocate''s clerk.

The petitioner claims that for such wrong advice given by his Advocate and/or for the default on the part of the Advocate''s clerk, the petitioner cannot be penalized, particularly when the petitioner deposited the entire rent and there is no default in payment of rent on the part of the petitioner in real sense.

Mr. Roy Chowdhury, learned Senior Counsel ultimately submits that his client is also prepared to redeposit the entire invalid deposits in the suit, as per the determination which will be made by the learned Trial Judge, while disposing of the defendant''s application u/s 17(2) of the said Act.

In the facts of the instant case this Court holds that the explanation which were given by the petitioner regarding the cause of such irregular deposits, are very much material and/or relevant for coming to the ultimately conclusion regarding validity of such deposits. Long delay in taking steps for substitution by the plaintiff, according to the petitioner, is also a major cause for deposit of rent irregularly.

But since such relevant material was not taken into consideration by the learned Trial Judge while disposing of the defendant''s application u/s 151 of the Code of Civil Procedure, this Court holds that the impugned order cannot be retained on record. The impugned order stands set aside.

Since determination of the validity of such deposit is a material consideration u/s 17(2) of the said Act, this Court disposes of this Revisional Application by directing the learned Trial Judge to consider the defendant''s application u/s 17(2) of the said Act along with the defendant''s said application u/s 151 of the CPC analogously.

It is made clear that the learned Trial Judge while disposing of both the aforesaid applications of the defendants will consider the merit of those applications without being influenced by any of the observations made by the learned Trial Judge while disposing of the defendant''s earlier application u/s 151 of the CPC or by this Court while disposing of this Revisional Application.

The Revisional Application, thus, stands allowed.

Since the suit is pending for disposal even at the trial stage since 1991, this Court directs the learned Trial Judge to dispose of the defendant''s those two applications positively within a period of three months from the date of communication of this order and thereafter will make all endeavour to dispose of the suit itself as early as possible without granting any unnecessary adjournment to either of the parties.

Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the requisite formalities.