Amitava Sen vs Anup Kumar Dey And Others

Sabyasachi Bhattacharyya, J. -

-

The defendant in an eviction suit, filed by the opposite parties under the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as “the

1997 Actâ€), has preferred the instant revisional application. In such suit, the petitioner filed an application under Section 7(2) of the 1997 Act, which

was disposed of on May 3, 2017 by directing the petitioner to pay Rs.1089/ within one month from the date of such order. Such stipulated time

expired on or around June 2, 2017. The maximum period of extension of 2 months thereafter, as stipulated in the proviso to SubSection (2) of Section

7 of the 1997 Act, also expired on or around August 1, 2017. Since the petitioner had not paid the amount as directed under Section 7(2) of the 1997

Act, the plaintiffs/opposite parties filed an application under Section 7(3) of the 1997 Act for striking out the petitioner’s defence against delivery

of possession. Only upon being served with a copy of the said application, the petitioner deposited on August 5, 2017 the sum directed to be paid vide

the order dated May 3, 2017.

The petitioner also filed an application under Section 151 of the Code of Civil Procedure for condonation of delay in depositing the said amount. The

plaintiffs/opposite parties controverted such application by filing a written objection thereto. By the impugned order dated December 6, 2017, the Trial

Judge rejected the petitioner’s application under Section 151 of the Code of Civil Procedure on contest and consequentially allowed the application

under Section 7(3) of the 1997 Act, filed by the opposite parties, thereby striking out the defence of the petitioner against delivery of possession.

-

Being thus aggrieved by the order dated December 6, 2017, the petitioner has challenged the same in the present revision under Article 227 of the

Constitution of India.The moot question which arises for consideration in the present revisional application is, whether the Court has the power to

extend the time for payment/deposit, as directed under Section 7(2) of the- 1997 Act, beyond the maximum period of extension permitted under the

proviso to the said subsection, that is after two months from the date, within which such deposit/payment was directed to be made by the order

passed under Section 7(2) of the 1997 Act.

Learned counsel for the petitioner, by placing reliance on the proviso to SubSection (2) of Section 7 of the 1997 Act, argues that the said proviso only

stipulates that one extension of time may be granted by the Court and that the period of such extension shall not exceed two months. It is submitted

that there is no outer limit provided therein as to when that extension may be sought. It could very well be that the prayer for extension is made

subsequent to expiry of the- two months period after the last date of deposit directed by the order under Section 7(2) of the 1997 Act.

-

To substantiate such argument, learned counsel for the petitioner cites a Division Bench judgment of this Court reported at (2012) 1 CAL LT 1 (HC)

[Subrata Mukherjee vs. Bisakha Das]. Placing particular reliance on paragraph no. 40 of the said judgment, learned counsel submits that the time limit

fixed, as mentioned in SubSections (1) and (2) of Section 7 of the 1997 Act, to pay or to deposit all admitted arrears of rent together with interest, as

mentioned in Clause (b) thereof, and consequently, the time limit mentioned for that purpose as mentioned in SubSection (2), was held to be “not

inflexible†and could be extended by Court by virtue of Section 5 of the Limitation Act, 1963. On the strength of such ratio, it is submitted that the

outer time limit, as stip-ulated in the proviso to Section 7(2) of the 1997 Act, was directory and could be extended by virtue of Section 5 of the

Limitation Act, 1963.

Learned counsel for the petitioner next relies on a judgment reported at (2018) 1 WBLR (Cal) 602 [Sibsankar Bhakat & Anr. vs. Radharani Bhakat

& Anr.], wherein a co ordinate Bench of this Court apparently laid down- relevant principles governing extension of time. While controverting the

aforesaid submissions, learned counsel appearing for the opposite parties argues that the maximum time limit within which the deposit h-as to be made

is 3 months from the date of disposal of the application under Section 7(2) of the 1997 Act.

-

In support of such contention learned counsel relies upon a judgment of a coordinate Bench, reported at (2015) 3 CAL LT 384 (HC) [Smt. Bina Devi

Binani vs. Ramesh Kumar Gupta (since deceased) by Smt. Kiran Gupta]. In the said judgment, while considering the proviso to SubSection (2) of

Section 7 of the 1997 Act, the Hon’ble Single Judge held that the word “extension†must relate to the date fixed by the original order under

SubSection (2) of Section 7. It was held further that an application for extension of time to deposit the arrear rent within the period fixed by the

original order passed by the Civil Judge must be made on or before the date of expiry of the original period fix-ed by the Civil Judg-e.

Certain relevant paragraphs of the said judgment are required to be set out in this context.“18. The object of providing various time limits, including

the time limit of on-e year for disposal of an application for adjudication of the arrear rent by the civil Judge is for speedy disposal of all eviction suits.

The question that falls for consideration in this case depends on the content and purport of the prov-iso to subsection (2) and subsection (3) of section

7 of the 1997 Act. -

-

Proviso to subsection (2) of section 7 of the 1997 Act provides for extension of time that may be granted by the civil Judge only once and the

-

period of such extension shall not exceed two months. From the bare reading of the proviso to subsection (2) of section 7 of the 1997 Act it is evident

that the Civil Judge has the jurisdiction to extend the time granted by the original order under said subsection (2) only once and such extension shall

not exceed two months. Now the word “extension†must relate to the date fixed by the original order under subsection (2) of section 7. Thus, the

only conclusion that can be arrived with regard to p-roviso to subsection (2) of section 7 of the said 1997 Act that an application for extension of time

to deposit the arrear rent- within the period -fixed by the original order passed by the Civil Judge must be made on or before the date of expiry of the

original period fixed by the civil J-udge.

-

This conclusion is more obvious in view of subsection (3) of section 7 of the 1997 Act providing that if the defendant tenant fails to deposit the

time specified under subsection (1) o-r subsection (2) or within such extended time as may be granted (which obviously mean the extension of two

months under the proviso to subsection (2)), the civil Judge shall order striking out of the defence of the tenant against delivery of possession to be

struck out and the hearing of the suit shall be proceeded with. The conse-quence under subsection (3) of section 7 of the 1997 Act of striking out

defence against delivery of possession is by operation of law and for that there is no necessity of any application by the plaintiff landlord. Once again

the word “shallâ€​ appearing in subsection (3) of section 7 of th-e 1997 Act is to be construed as mandatory.

-

The accrual of the right in favour of the plaintiff landlord under subsection (3) of section 7 of the 1997 Act for striking out defence of the

defendant- tenant against delivery of possession is by operation of law and if the- contention of Mr. Chatterjee that a tenant can file an application for

obtaining extension of time to make payment under proviso to subsection (2) of section 7, even after the expiry of the period stipulated by the original

order under subsection (2), then the right of the plaintiff landlord under subsection (3) of section 7 would be depended upon the discretion of the civil

Judge and even in a given case, the tenant may apply for extension even after expiry of one year after the stipulated period fixed by the original order

under subsection (2) or long thereafter. Any interpretation of the proviso to sub section (2) of section 7 of the 1997 Act accepting such contention of

-

Mr. Chatterjee would be absurd and shall be contrary to express provision contained in subsection (2) of section 7 of the 1997 Act. Further the

contention of Mr. Chatterjee cannot sustain in view of the decis-ion of the Supreme Court in the case of Nasiruddin (supra) and the aforesaid decisions

of this Court cited by Mr. Mukherjee. -

For all these reasons, I find the civil Judge exercising jurisdiction under section 7 of the 1997 Act does not have the jurisdiction to entertain any

application of a tenant defendant, in terms of the proviso to subsection (2) thereof, praying for extension of time to deposit the amount adjudicated by

the original order passed under the said subsection, after the expiry of the period stipulated by the original order. In these circumstances, I do not find

the decision of the Supreme Court in the case of Salem Bar Association (supra) cited by Mr. Chatterjee dealing with section 148 of the code of Civil

Procedure has any application in this case. Accordingly, I have no hesitation to hold that the impugned order dated July 25, 2012 passed by the learned

Civil Judge (Junior Division), Alipore in Title Suit No. 304 of 2009 is without jurisdiction and void. Therefore, the ground urged by Mr. Chatterjee that

the said order was already acted upon has no merit.†Learned counsel for the opposite parties next cites a judgment reported at 2016 (5) CHN

(CAL) 367 [Nilima Das vs. Bijay Kumar Manish Kumar HUF]. In the said judgment, the proposition laid down in Bina Devi Binani’s case was

reiterated.

-

It was recorded in paragraph no. 7 of Nilima Das Case that Bina Devi Binani was challenged before the Hon’ble Supreme Court in a Special

Leave Petition, which was rejected in limine vide Order dated October 12, 2015 on the ground that no ground for interference was made out in

exercise of the jurisdiction of the Hon’ble Supreme Court under Article 136 of the Constitution of India. The next judgment cited by the opposite

parties was reported at 2016(1) CLJ (Cal) 551 [M/s Venus Drug Centre vs. Dinabandhu Hajra & Ors.], where another coordinate Bench again

reiterated the proposition laid down in Bina Devi Binani’s case.

It may be noted that the first two of the aforesaid judgments, cited by the opposite parties, also relied upon the judgment reported at (2003) 2 SCC 577

(Nasiruddin vs. Sita Ram Agarwal). In the said case, the Supreme Court held inter alia that wherever a special Act provides for extension of time or

condonation of delay, the Court possesses the power therefor, but where the statute does not provide either for extension of time or such condonation,

the Court does not have the power to do so. For appreciating the context of the proviso to Section 7(2) of the 1997 Act, the evolution of Section 7 of

the 1997 has to be noticed briefly. Section 7 of the 1997 Act is as follows:

“S. 7. When a tenant can get the benefit of protection against eviction.â€"(1) (a) On a suit being instituted by the landlord for eviction on any of the

grounds referred to in section 6, the tenant shall, subject to the provisions of subsection (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 subsection (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 subsection, 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 l-andlord 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 subsection (-1) or subsection (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.

(4) If the tenant makes deposit or payment as required by subsection (-1) or subsection (2), no order for delivery of possession of the premises to the

landlord on the ground of default in payment of rent by the tenant, shall be made by the Civil Judge, but he may allow such cost as he may deem fit to

the landlord:

Provided that the tenant shall not be entitled to any relief under this subsection if, having obtained such relief once in respect of the premises, he again

makes default in payment of rent for four months within a period of twelv-e months or for three successive rental periods where rent is not payable

monthly.â€The said section evolved from Section 17 of the West Bengal Prem-ises Tenancy Act, 1956 (hereinafter referred to as “the 1956

Actâ€​). The said section was as follows:

“17. When a tenant can get the benefit of protection against eviction. (1) On a suit or proceeding being instituted by the landlord on any of the

grounds referred to in section 13, the tenant shall, subject to the provisions of s-ubsection (2), within one month of the service of the writ of summons

on him or where he appears in the suit or proceeding without the writ of summons being served on him, within one month of his appearance deposit in

Court or with the Controller or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant

may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made

together with interest on such amount calculated- at the rate of eight and one third per cent, per annum from the date when any such amount was

payable upto the date of- deposit, and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum

equivalent to the rent at that rate.

(2) If in any suit or proceeding referred to in subsection (1) there is any dispute as to the amount of rent payable by the tenant, the tenant shall, within

the time specified in subsection (1), deposit in court the amount admitted by him to be due from him together with an application to the court 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 such application, the court shall â€

(a)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, a preliminary order, pending final decision of the dispute, specifying the amount, if any, due from the

tenant and thereupon the tenant shall, within one month of the date of such preliminary order, deposit in court or pay to the landlord the amount so

specified in the preliminary order, and

- - -

(b) having regard to the provisions of this Act, make, as soon after the preliminary order as possible, a final order determining the rate of rent and the

amount to be deposited in court or p-aid to the landlord- and either fixing the time within which the amount shall be deposited or paid or, as the case may

be, directing that the amount already deposited or paid be adjusted in such manner and within such time as may be specified in the order. (2A)

Notwithstanding anything contained in subsection (1) or subsection (2), on the application of the tenant, the Court may, by order,

-

(a) extend the time specified in subsection (1) or subsection (2) for the deposit or payment of any amount referred to therein;

(b) having regard to the circumstances of the tenant as also of the landlord and the total sum inclusive of interest required to be deposited or paid

under subsection (1) on account of default in the payment of rent, permit the tenant to deposit or pay such sum in s-uch instalments and by such dates

as the Court may fix : -

-

Provided that where payment is permitted by instalments, such sum shall include all amounts calculated at the rate of rent for the period of default

- -

including the period subsequent thereto up to the end of the month previous to that in which the order under this subsection is to be made with interest

- -

on any such amount calculated at the rate specified in subsection (1) from the date when such amount was payable up to the date of such order. (2B)

No application for extension of time for the deposit or payment of any amount under clause (a) of sub section (2A) shall be entertained unless it is

made before the expiry of the time specified therefor in subsection (1)- or subsection (2)-, and no application for permission to pay in instalment under

clause (b) of subsection (2A) shall be entertained unless i-t is made before the expiry of the time specified in subsection (1) for the deposit or

pay-ment of the amount due on account of default in the payment of rent.

(3) If a tenant fails to deposit, or pay any amount referred to in subsection (1) or subsection (2) within the time specified therein or within such

extended time as may be allowed under clause (a) of subse-ction (2A), or -fails to deposit or p-ay any instalment permitted under clause (b) of

subsection (2A) within the time fixed therefor, the Court shall order the defence against delivery of possession to be struck out and shall proceed with

the hearing of the suit. -

(4) If a tenant makes deposit or payment as required by subsection (1),subsection (2), or subsection (2A) no decree or order for delivery of

possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may

allow such costs as it may deem fit to the landlord: Provided that a tenant shall not be entitled to any relief under this subsection if, having obtained

such relief once in respect of the premises, he has again made default in the payment of rent for four months within a period of twelve months.â€​

-

It may further be noted that Section 17 of the 1956 Act was followed by Section 17A (Power of Court to set aside the order striking out defence

against delivery of possession), -Section 17B (Power of Court to set aside decree in case where defence against delivery of possession struck out),

Section 17D (Power of Court to- set aside decrees passed on account of default in the payment of rent) and Section 17E (Power of Court to- set aside

certain decrees passed in suits brought by Transferee Landlords within three years from- the date of transfer).

-

It is seen that, by virtue of SubSection (2B) of Section 17 of the 1956 Act, no application for extension of time for the deposit or payment of any

amount under Clause (a) of- SubSection (2A) could be entertained unless it was made before the expiry of the time specified therefor in SubSection

(1) or SubSection (2), and no application for installment under Clause (b) of the SubSec-tion (2A) could be entertained unless it was made before

expiry of the time specified in SubSection (1) for the deposit or payment of the amount due on account of default in payment of rent.

However, the rigour of SubSection (2B) was alleviated by the subsequent provisions of Sections 17A onwards. It is notable that such a restriction, as

to an application for extension of time being filed before expiry of the time specified in SubSections (1) or (2), is absent in the present Section 7 of the

1997 Act. However, such absence has apparently been compensated in favour of the landlord by obliteration of provisions like Sections 17A onwards

of the 1956 Act, which gav-e a post facto breather, in the 1997 Act.

In fact, the scheme of evolution from the 1956 Act to the 1997 Act, with reference to Section 17 and Section 7 of the said Acts respectively, indicates

that the tenant was compensated for withdrawal of the cloak of protection afforded by Sections 17A onwards of the 1956 Act, by removing the

restriction stipulated in SubSection (2B) of the 1956 Act. Hence, with utmost respect, the deduction drawn in the cases of Bina Devi Binani (supra),

Nilima Das (supra), M/s Venus Drug Centre (supra) from the principles laid down in Nasiruddin’s (supra) case was not a necessary logical

inference, inasmuch as the proposition as to the extension application is to be filed mandatorily on or before the period fixed under Section 7(2) of the

1997 Act is concerned.

(It would be relevant to mention that since the Special Leave Petition against Bina Devi Binani was rejected in limine on the premise that no ground

for interference was made out under Article 136 of the Constitution of India, there was no adjudication by the Hon’ble Supreme Court on merits

and consequently, there was no merger of the order of the learned Single Judge of this Court with tha-t of the Hon’ble Supreme Court. As such,

the said decision could not be said to have attained fruition as a ratio decidendi laid down by the Hon’ble Supreme Court.)

It is evident that the 1997 Act removed such a rigour, while curtailing post facto leeway granted previously to the tenant under the 1956 Act by virtue

of Sections 17A onwards of the said Act. As such, with utmost respect, the said three judgments of coordinate Benches of this Court, being rendered

in the cases of Bina Devi Binani (supra), Nilima Das (supra), M/s Venus Drug Centre (supra), are par incuriam to such extent, being contrary to the

scheme of Section 7 of the 1997 Act, as evident from a comparison with its predecessor statute, the 1956 Act.

Such extension application, akin to applications under Section 5 of the Limitation Act accompanying a belated appeal, which can be filed after filing of

the appeal, itself is not fettered by an mandatory time limit, apart, of course, from the statutory three months which is the limitation for making the

payment/deposit itself. Such an application, thus, can be filed even after expiry of one month from the order under Section 7 (2), but prior to the last

statutory limit of further two months. Once the extension application is allowed, the date of grant of extension will operate from the expiry of one

month after the order under Section 7 (2).

As far as the decision reported at (2018) 1 WBLR (Cal) 602 is concerned, the same does not help the petitioner at all but only lays down that in the

event the tenant does not discharge the statutory obligations under Section 17(2) of the 1956 Act, and in the event the 1997 Act comes into force in

the meantime, the Trial Judge would unhesitatingly extend the right available to the landlord under Section 7(3) of the 1997 Act and strike out the

defence of the tenant even without any application to that effect. As to the argument advanced by the petitioner, that the Division Bench judgment of

this Court in Subrata Mukherjee’s case makes the time limit for deposit of arrears flexible to the extent that the same can be extended, under

-

Section 5- of the Limitation Act, even beyond the three months period s-tipulated by Section 7(2) and its proviso, such proposition is defeated not only by

the scheme of the 1997 Act, read in the light of Nasirud-din’s case, but is also negated by the very subsequent paragraph, that is paragraph no. 41

of Subrata Mukherjee’s judgment itself. Para 41 reads as follows:

“Para 41: However, the time limit fixed for payment to the landlord, after adjudication of the dispute with regard to the rate of rent with the

extended time limit, as mentioned in the proviso of subsection (2), is inflexible and this cannot be extended by the Court under any circumstances,

naturally, provisions of Section 5 of the Limitation Act will not be applicable.â€​

In the light of the aforesaid observations, the question which fell for consideration in the instant revisional application can be answered only in the

negative. The last limit within which the tenant has to deposit the arrears of rent, as adjudicated under Section 7(2) of the 1997 Act, as well as to file

the application for extension of t-ime to pay/deposit beyond one month from the date of the order under Section 7 (2), is three months from the date of

the order passed under Section 7(2) of the 1997 Act.

As held in Subrata Mukherjee’s case, the power to grant such extension flows from Section 5 of the Limitation Act conjointly with the enabling

stipulation in the proviso to SubSection (2) of Section 7 of the 1997 Act. However, the Court does not have any power to extend such time for

deposit/payment beyond three months from the date of the order under Section 7(2). Any deposit/payment directed to be made under Section 7(2) can

be made within such three months, subject to the Court allowing an application for extension/condonation of de-lay in making the same, if deposited

after one month from the date of such order under Section 7 (2) of the 1997 Act. As such, the time limit for filing such application for

extension/condonation in the present scheme of the 1997 Act, also has to bethree months from the date of the order under Section 7 (2).

-

In the light of the above discussions, it can readily be inferred from the specific provisions of the proviso to SubSection (2) of Section 7- of the 1997

Act, read in the light of Nasiruddin’s case, that the last limit for depositing the arrears as directed under Section 7(2) is three months from the date

of the order passed under Section 7(2), in view of the stipulation in Section 7(2) that the tenant shall-, within one month of the date of the order passed

under the said subsection, pay to the landlord the amount so specified in the order, read with the proviso, which says that the period of the single

extension which may be granted by the Court shall not exceed two months. Hence, the one month outer limit of the initial order under SubSection (2),

in conjunction with the last stretchable limit of a further two months, takes the outer periphery of payment/deposit, as well as the last date for making

an extension application, to a maximum of three months from the date of the order passed under SubSection (2) of Section 7 of the 1997 Act.

In the instant case, the order under Section 7(2) of the 1997 Act was passed on May 3, 2017 and the outer limit of three months ended on or about

August 1, 2017. As the deposit itself was made only on August 5, 2018, the Court below was entirely powerless to extend the time or to condone the

delay for that matter. As such, there was no option for the Trial Court but to refuse the petitioner’s prayer for condonation of delay in depositing

the arrears and to allow the application of the plaintiffs/opposite parties under Section 7(3) of the 1997 Act, thereby striking out the defence of the

petitioner against delivery of possession. Accordingly, C.O. No. 4155 of 2017 is dismissed on contest, thereby affirming the impugned order dated

December 6, 2017 passed by the Civil Judge (Junior Division), Additional Court at Sealdah, DistrictSouth 24 Parganas in Ejectment Suit No. 42 of

2014. There will be no order as to costs.