Jaishree Devi and Others vs Ashok Kumar Raidant and Others

Ishan Chandra Das, J.—1. Heard the learned Counsel for the parties.

In the instant revisional application the legality and propriety of the Order No. 167 dated 11th September, 2015 have been questioned by the petitioners who happen to be the defendants/tenants of Ejectment Suit No. 312/1996 before the City Civil Court, Calcutta and subsequently transferred & renumbered as Ejectment Suit No. 916 of 2000, now pending before learned Judge, 3rd Bench, Presidency Small Causes Court, Calcutta.

The background of the instant revisional application is that the petitioners being the defendants of the original Ejectment Suit No. 312 of 1996 (now Ejectment Suit No. 916 of 2000) applied for permission of the court to deposit the amount equivalent to the admitted rent and to decide the issues like rate of rent or arrears of rent in terms of Section 17(1) and 17(2) of the West Bengal Premises Tenancy Act, 1956 and they also applied for depositing the arrears of rent by instalments in terms of Section 17(2A)(a)(b) of the Act of 1956. Subsequently, they filed an application under Section 151 of the Code of Civil Procedure for fixation of the date of hearing of the application under Section 17(2A)(a)(b) of the Act, since the other two applications were disposed of but the prayer for depositing the arrears of rent by instalments was yet to be disposed of. The learned trial court in the order impugned held that no specific order need be passed on the petition under Section 17(2A)(a)(b) of the Act, but the order under Section 17(2) dated 15.06.2005, which is at page 63 of the application, covered the issue/question of instalments and direction was given to the petitioners herein to clear up their due rent and statutory interest by the date fixed (i.e., on 19.07.2005).

The learned Counsel appearing for the petitioners, in course of hearing, drew my attention to a decision of a Division Bench of this Court in M/s. Jiia Ens v. Hindustan Ice and Cold Storage Co. Ltd., reported in 88 C.W.N. 78 and pointed out that learned trial court committed the mistake by directing the petitioners to make deposit of arrears of rent and statutory interest by one instalment keeping the application under Section 17(2A) of the Act pending. Relying on another decision of this Court in Pulin Kumar Chowdhury v. Sachindra Mohan Bose, reported in 1978 (1) CLJ 645, he also submitted that keeping the application under Section 17(2A) read with the proviso thereunder pending, the application under Section 17(3) cannot be invoked.

To fortify his argument, he relied on a decision of this Court in Laxmi Narayan vs. Durgapada Karmakar, reported in , AIR 1981 Calcutta 352 and pointed out that learned trial court was directed to calculate the amount of arrears of rent to be paid to the landlord in terms of the proviso to Section 17(2A)(b). Drawing my attention to the Order No. 90 dated 15.06.2005, learned Counsel for the petitioners submitted that while disposing of the application under Section 17(2) of the West Bengal Premises Tenancy Act, 1956, learned trial court held that the rate of rent was Rs. 9/- per month and the petitioners were defaulter in payment for 121 months for which they were liable to pay Rs. 1089/- and statutory interest as calculated to the tune of Rs. 500/- (i.e., Rs. 1589/- in total). Since the application under Section 17(2A) was not disposed of, the defendants/petitioners could not deposit the arrears of rent and statutory interest as directed by the learned court below by order dated 15th June, 2005.

The learned Counsel for the opposite parties herein who happen to be the landlord of the premises in question claimed that the petitioners adopted a dilatory tactics in getting the suit disposed of since they were directed to deposit a small amount of Rs. 1589/- some time in the month of 2005 and after a lapse of 10 years they filed an application under Section 151 of the Code of Civil Procedure praying for an order to fix up a date for hearing of the application under Section 17(2A)(a)(b) of the West Bengal Premises Tenancy Act, 1956 dated 7th January, 1997 (which is at page 59 of the application) which was pending for long.

In this context the order of learned trial court being Order No. 90 dated 15.06.2005 is quoted below for proper appreciation of the dispute arose in the revisional application:

"The plaintiff files hazira and the defendant takes no steps. Heard the petition filed by the defendant u/s. 17(2) of the W.B.P.T. Act. Considered. Perused the plaint from where it appears that the monthly rent is Rs. 9/- and the defendant is a defaulter since April, 1995. No challan or receipt has been filed by the defendant showing payment of rent since April, 1995. Therefore, the defendant is in arrear in payment of rent since April, 1995 to May, 2005 for 121 months for which he is liable to pay Rs. 1089/- together with statutory interest of Rs. 500/- totalling Rs. 1,589/-. The defendant is directed to clear up the said arrears of rent by the next date fixed positively."

True it is that the provision of Section 17(2A) of the West Bengal Premises Tenancy Act, 1956 was enacted with a view to protecting the tenants from the hardship caused to them due to the fact that where huge arrears of rent are to be paid by a tenant, he can deposit the same by easy instalments.

The provision of Section (2A) of the Act is quoted below:

"(2A) Notwithstanding anything contained in sub-section (1) or sub-section (2), on the application of the tenant, the Court may, by order,

(a) extend the time specified in sub-section (1) or sub-section (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 sub-section (1) on account of default in the payment of rent, permit the tenant to deposit or pay such sum in such instalments and by such dates as the Court may fix:"

A plain reading of section 17(2A)(a)(b) of the W.B.P.T. Act, 1956, clearly mandates that the tenant is at liberty to file an application under Section 17(2A)(a)(b) for extension of time for the deposit or payment of amount as directed as per application under Section 17(1) or 17(2) and the court may having regard to the circumstances of the tenant as also of the landlord and the total sum inclusive of interest, permit the tenant to deposit or pay such sum in such instalments and by such dates, to be fixed by the Court.

In the case in hand the petitioners were found defaulters in payment of rent for 121 months where the rate of rent was Rs. 9/- per month payable according to English calendar and the petitioners were directed to pay the total arrears of rent of Rs. 1089/- and statutory interest of Rs. 500/- and in total Rs. 1,589/- as calculated. By the order dated 15.06.2005 the petitioners herein were directed to pay the same within one month by one instalment only.

By the order impugned the learned trial court held the following:

"It remains an admitted position that no specific order has been passed on the petition u/s. 17(2A)(a)(b) WBPT Act, 1956. But the order u/s. 17(2) dated 15.06.2005 impliedly covered the issue/question of instalments, by directing the defendants to clear up their due rent and statutory interest by the next date fixed."

The provisions u/s. 17(2A)(a)(b) of the Act were made to protect the interest of the tenants so that they can clear up arrears of rent and statutory interest by easy instalments in case of urgent need and such a right cannot be exercised as a luxury with a view to frustrating the interest of the landlord, I am afraid, it was being done repeatedly in the instant case.

Having regard to the facts of the case, the conduct of the petitioners herein, I firmly conclude that learned trial court was correct in his approach and I am unable to take a different view in the matter.

The learned Counsel for the petitioners, in course of hearing, emphatically submitted that the conduct of the present petitioners is a glaring example of abusing the process of law and concurring with the view as expressed by the learned Counsel for the opposite parties herein, I firmly conclude that the order impugned does not require any interference and it stands affirmed.

Since I find no merit in the revisional application, the same stands dismissed.

I make no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.