Jayanta Dutta and Another vs Sri Dhirendra Nath Dutta

Soumen Sen, J.—These two applications are taken up for analogous hearing and are being disposed of by this common judgment. These revisional applications are arising out of an order passed on 24th June, 2010 by which the civil Judge, Junior Division considered two applications one filed by the plaintiff u/s 17(3) of the West Bengal Premises Tenancy Act, 1956 and another u/s 151 of the CPC filed by the defendant for rendering police help for compliance of the order dated 16th January, 2007. The plaintiff instituted the suit for eviction against the defendant in the year 2001 on the ground of default, reasonable requirement, nuisance and annoyance along with other reliefs. In the same proceeding on an application filed u/s 17(2) of the Act an order was passed holding that the petitioner is a defaulter in payment of rent from September, 1986 to July, 1989 and accordingly the petitioner was directed to pay arrears rent for the said defaulted period being a sum of Rs. 10,540/- in ten equal instalments. The order records that the defendant has been dispossessed illegally from the suit premises on 23rd July, 1989 and accordingly the civil Judge directed suspension of rent from August, 1989 till the dispute regarding dispossession of the defendant from the suit premises is decided after taking evidence in the suit. Accordingly, the defendant was not held defaulter from August, 1989 till May, 2003. The defendant admittedly did not comply with the said order resulting in an application being filed in March, 2005 u/s 17(3) of the West Bengal Premises Tenancy Act for striking out the defence. The defendant contested the said proceeding in which it is contended that the defendant deposited the rent with the rent controller from January, 1989 till June, 1989. The plaintiff also received Rs. 5,000/- in cash from the defendant from 31st December, 1986 towards rent and Rs. 250/- on 20th January, 1989 and Rs. 1,500/- on 18th September, 1988 on granting money receipt and also Rs. 1,500/- on 3rd July, 1988 through Santosh Kr. Deb and Rs. 925/- on 9th June, 1988 through the same person. The defendant-petitioner disclosed such rent control challans and receipts in support of such contention in the said proceeding. It is argued that the learned Judge held that the petitioner is defaulter from September, 1986 to July, 1989 since the defendant could not file documents in support of his contention that the rents have been paid for the aforesaid period. Since the rents have been paid for such period, it is contended that the petitioner could not be held to be a defaulter for such period and in any event the learned Court before permitting striking out of defence should take into consideration that the basis for praying such relief does not exist or at least it requires re-consideration since the provision of Section 17(3) has a serious civil consequence.

Learned counsel for the plaintiff-landlord however, submits that in a proceeding u/s 17(3) of the Act, the trial Court is only required to consider whether the order passed u/s 17(2) of the Act has been duly complied with or not and in the event the learned Court finds that the said order has not been complied with, the Court has no other option but to strike out the defence which is a mandatory requirement of the said section. Moreover, in the instant case it was open for the tenant-petitioner to approach the Court with such materials before filing of the application u/s 17(3) of the West Bengal Premises Tenancy Act. The said defendant however, did not avail such opportunity and accordingly it is open for the petitioner to re-open the issue with regard to arrears of rent which are since been decided in a proceeding u/s 17(2) of the West Bengal Premises Tenancy Act, 1956. In this regard the learned counsel for the petitioner has relied upon the following decisions:

i) Aero Traders Pvt. Ltd. Vs. Ravinder Kumar Suri,

ii) Baidya Nath Majumdar vs. Pramatha Nath Dutta AIR 1988 CJ 539

iii) Mrs Manju Choudhary and Another Vs. Dulal Kumar Chandra,

In Mrs. Manju Choudhary (supra) the Hon''ble Supreme Court was considering the provision of Section 13 of the Bihar Buildings (Letting, Rent and Eviction) Ordinance 1982. In the said judgment, it was noticed that both the trial Court and the High Court found on fact that the tenant was a defaulter and in view of Section 13 of the said Act in case of the failure of the tenant to deposit arrears of rent within 15 days, the tenant faces the consequences of striking out the defence under the said Section. The case made out by the tenant for not depositing the rent was also found to be incorrect. In fact it will appear from the said judgment that the plea of the tenant for being unable to deposit the rent was not genuine on the basis of the evidence on record. The tenant in that case made out a case that there was a bank strike and he could not deposit his rent in time which was found to be not correct. The relevant portion of the said judgment relied upon by the petitioner is reproduced hereinbelow:

...Section 13 of the Act stipulates that if in a suit for recovery of possession of any building the tenant contests the suit as regards the claim for ejectment, the landlord may move an application at any stage of the suit for an order on the tenant to deposit rent month by month at the rate at which it was last paid and also subject to the law of limitation, the arrears of rent, if any, and the court after giving an opportunity to the parties to be heard may make an order to deposit the rent month by month at such rates as to be determined and the arrears, both before and after the institution of the suit, if any, and thereafter provides "on failure of the tenant to deposit the arrears of rent within 15 days of the next following month the court shall order the defence against the ejectment to be struck off." Therefore, there is a duty cast on the court to strike out the defence if there is a failure of the tenant to deposit arrears of rent within 15 days. In this case, both the trial court as well as the High Court have found that there was, in fact, a delay to pay the arrears of rent within 15 days. In that view of the matter it is not possible to interfere with the order of the High Court.

In Aero Traders Pvt. Ltd. (supra) the Hon''ble Supreme Court was considering Section 15(7) of the Delhi Rent Control Act which provides that in case of second default in paying/depositing rent within a period of one month as contemplated u/s 15(1) of the said Act, the Court should strike out the defence u/s 15(7) of the said Act. It is submitted that although under the 1956 Act, the Court has the discretion to extend the time on an application being made by the tenant but such discretion has to be exercised judicially. The Hon''ble Supreme Court considered whether the appellant has made out any ground for exercising discretion in his favour in striking out his defence. The relevant portion is reproduced hereinbelow:

The question which, therefore, requires consideration is whether the appellant has made out any ground for exercising discretion in his favour of not striking out his defence. According to Black''s Law Dictionary "judicial discretion" means the exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court''s power to act or not act when a litigant is not entitled to demand the act as a matter of right. The word "discretion" connotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hard-and-fast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination, and a knowledge of the facts upon which the discretion may properly operate. (See 27 Corpus Juris Secundum, p. 289). When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice and not according to private opinion; according to law and not humour. It only gives certain latitude or liberty accorded by statute or rules, to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him.

In the present case, the finding of the Rent Controller and also of the Rent Control Tribunal is that the appellant set up a totally false plea of his having sent the rent through cheques to the landlord. Apart from pleading that he had sent the amount through cheques, he pleaded no other fact which could be taken into consideration by the Rent Controller for exercising discretion in his favour. It may be noted that the premises are commercial and are situate in Karol Bagh, which is a prime business area of Delhi and the rent is a paltry sum of Rs. 30 per month. But the appellant did not pay even this small amount of rent, which is virtually a pittance, and has remained in arrears for a long period of time. There is absolutely no ground on which any discretion could be exercised in his favour. The High Court was, therefore, perfectly justified in setting aside the order passed by the Rent Control Tribunal and restoring that of the Rent Controller.

On facts it was found that the plea taken by the appellant was completely untenable since the appellant set up a totally false plea of his having sent the rent through cheques to the landlord. It was on such facts the Hon''ble Supreme Court found that the rent control as also the Rent Control Tribunal was justified in not exercising the discretion in favour of the appellant.

In Baidya Nath Majumdar (supra) a learned single Judge of this Court refused to exercise discretion u/s 115 of the CPC having arrived at a conclusion that the order passed by the Munsif was passed in accordance with the appropriate law and procedure. The revisional Court on facts found that the default in the said case was very much real in nature and extended over a period of 12 months. The circumstances of the said case on facts found to be not of such a nature where the Court should exercise the discretion in favour of the petitioner. The relevant portion of the said judgment is reproduced hereinbelow:

3 It appears that the application u/s 17(3) of the West Bengal Premises Tenancy Act was allowed by the learned Munsif by his order dated 20.7.1983 on finding that the petitioner-defendant had not deposited any rent after 13.7.1982. It is against this order that the petitioner-defendant has come up with the present revisionary petition with assertion that he deposited rent upto 19.8.1983.

The question of condoning the delay hardly arises since this Court exercising revisionary powers can only consider if the impugned order has been passed in accordance with the appropriate law and procedure. The order having been passed in accordance with the appropriate law, this Court cannot interfere with it in any way. It is true that the cited decision interprets the word "shall used in section 17 (3) of the Act as mere directory and not mandatory. By way of clarification it has been held therein that the Code considering a petition u/s 17 (3) of the Act is vested with the discretion to order either striking out of the defence or not depending upon the circumstances of the case and the interests of justice and further that if the court was inclined to pass an order in favour of the tenant, it could condone the default and extend the time for payment of deposit. In the cited case the default pertained only to belted tenants of rent for two months and it was observed that these defaults mere technical were not of such a serious nature as to warrant the Court refusing to exercise its discretion to feel constrained to strike the defence. This is not the case here. In this case the defaults were very much real in nature and they extended over a period of twelve months. The circumstances of this case were not, therefore, such as to attract the exercise of the discretion. The cited decisions, therefore, does not come to the aid of the petitioner-defendant in any way.

On a considering of the materials on record and the facts and circumstances of the case I am of the view therefore, that the opposite party-plaintiff''s petition u/s 17 (3) of the West Bengal Premises Tenancy Act has been rightly disposed of by the learned Munsif. His order therefore, does not require any interference from the side of this court. The present revisional application must therefore, fail.

Mr. Hiranmoy Bhattacharyya, learned counsel appearing for the opposite party submits that in absence of an application for condonation of delay the Court should not enlarge the time and in any event, the power to enlarge the time is discretionary which is to be exercised on sound judicial principles. In support of this submission, he relied on the following decisions:

i) Malnad Traders Vs. New India Assurance Co. Ltd.,

ii) In re: Sadhu Choudhury 1987 (1) CLJ 510

iii) Harbhajan Singh Sole Vs. Shankar Choudhury,

iv) B.P. Khemka Pvt. Ltd. Vs. Birendra Kumar Bhowmick and Another,

In Shanti Prasad Jain (supra), it was found that the appellants were guilty of negligent default in depositing the rent in compliance with the order of the Rent Controller. The appellant also failed to provide any explanation or justification for such wilful default and it was found on the analysis of the pleading that in fact they made contradictory statements in their applications for condonation of delay which were not the defence taken by them in the objection filed to the application u/s 15(7) of the Delhi Rent Control Act. It was also found from record that the application for condonation of delay was filed when the hearing of the application u/s 15(7) of the Act was concluded and the matter was adjourned for orders. The application for condonation of delay was a belated one and an afterthought attempt made to explain the wilful default. On such facts that the discretion exercised by the High Court against the tenant in refusing to condone the delay was perfectly justified.

In Sabu Choudhury (supra) it was held that if there is any technical delay in making deposit, such delay can be condoned by the Court and the Court can grant extension of time in exercising discretion in favour of the tenant. The Court should not be too technical in such matters.

In Harbhajan Singh (supra) deposits were not made in compliance with the provisions of Section 17(1) of the West Bengal Premises Tenancy Act, 1956 and the Court recorded an order u/s 17(3) striking out the defence of the tenants-defendants. The tenant filed an application u/s 151 of the CPC read with Section 5 of the Limitation Act. The trial Court recalled the order of striking out defence. The said order was challenged in revision before the High Court. Learned single Judge after considering the decisions on this point held that from a reading of the said decisions it emerged that when an application was made bona fide disclosing sufficient grounds for which the deposits following the disposal of the petition u/s 17(2) (2A) (a) and (b) of the Act 1956 or for current months should not be made within the stipulated time and in view thereof, the Court should exercise its discretion for acceptance of the same upon consideration of such facts and circumstances of the case. The Court in such a situation must exercise discretion on the grounds being shown thereof irrespective of the form of the application made therefor. On facts it was found that in the petition u/s 5 of the Limitation Act, no cogent reason was disclosed as to why the deposits for the month from May 1996 to October, 1996 in compliance with the provisions of Section 17(1) of the Act were not made following the disposal of the petition u/s 17(2) and (2A) of the Act nor any reason was disclosed as to why the deposits for the said months were not sought to be made upon receipt of notice of the application filed by the landlord-plaintiffs u/s 17(3) of the Act or any time before the order so made in the said petition u/s 17(3) of the Act by the trial Court. It was on such facts it was held that order for striking out the defence in the suit of the tenants-defendants cannot be sustained and the recalling application of the tenant was accordingly dismissed. The revisional application was allowed.

In. B.P. Khemka (supra) it was held that the words ''shall order the defence against delivery of possession to be strike out'' occurring u/s 17(3) have to be construed as a directory provision and not a mandatory provision as the word ''shall'' has to be read as ''may''. Such canon of construction is warranted because otherwise the intendment of the legislature will be defeated and the class of tenants for whom the beneficial provisions were made by the ordinance and the amending will stand deprived of them. On the question of exercising the discretion in such matters, in paragraph ''15'' the Hon''ble Supreme Court made the following observations:

Once the word "shall" used in section 17(3) is read as "may" and consequently the provision for striking out of the defence is to be read as directory and not mandatory then it follows that the Court is vested with discretion to order wither striking out of the defence or not depending upon the circumstances of the case and the interests of justice. This Court has consistently taken the view that if the Court has the discretion not to strike out the defence of the tenant committing default in payment or deposit of rent as required by a provision in any Rent Restriction Act, then the Court surely has the further discretion to condone the default and extend the time for payment or deposit and such a discretion is a necessary implication of the discretion not to strike out the defence. We may only refer in this connection to three earlier decisions of this Court. Shyamcharan Sharma Vs. Dharamdas, is a case which arose under the Madhya Pradesh Accommodation Control Act, 1961, Miss. Santosh Mehta Vs. Om Prakash and Others, and Ram Murti Vs. Bhola Nath and Another, were cases which arose under the Delhi Rent Control Act, 1958. The Rent Control Act of Madhya Pradesh as well as the Rent Control Act of Delhi provided that if a tenant failed to make payment or deposit as required by the Section against eviction to be struck out and proceed with the hearing of the application. In all these cases it has been uniformly held that the powers of discretion vested in the Rent Controller give him further right to condone the delay in deposit or payment of rent for the subsequent months.

In B.P. Khemka (supra) it was found that the default was not one of non-payment of the arrears or the rent for the subsequent period. The default pertained to belated payments of rent for two months and was, therefore, a default in the technical sense than in the real sense and hence of an inconsequential nature. It was on such facts it was held that having regard to the intendment of the Act and nature of the provisions it can never be said that the default were of such serious nature as to warrant the Court refusing to exercise its discretion and to feel constrained to strike out the defence.

Mr. Bhattacharyya submitted that having regard to the clear finding in the order dated 26th May, 2003 that the defendant could not file a scrap of paper to prove that he paid rents to the plaintiff from September, 1986 to July, 1989 such issue cannot be reopened subsequently since it is well settled that the principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a Higher Court having at an earlier stage decided the matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. Satyadhyan Ghosal and Others Vs. Sm. Deorajin Debi and Another, . This submission was made on the basis of the written objection to the application filed u/s 17(3) of the West Bengal Premises Tenancy Act disclosing certain documents showing deposits made with the rent controller for the month of 1988-89.

Per contra Mr. Haradhan Banerjee, learned counsel appearing with Mr. Prabal Mukherjee for the petitioners submits that this matter has a chequered history. In fact the learned trial Judge in deciding the application u/s 17(1) and 17(2) of the West Bengal Premises Tenancy Act observed that the petitioner has been dispossessed from the suit premises illegally on and from 23rd July, 1989 and accordingly there should be a suspension of rent payable by the defendant from August, 1989 till the dispute regarding dispossession of the defendant from the suit premises is decided after taking evidence in the suit. After such observation the learned trial Judge also held that the defendant was unable to produce any receipts from September, 1986 to July, 1989 and therefore, it can be concluded at this stage that the defendant is defaulter in payment of rent from September, 1986 to July, 1989 that is for 35 months. The rent from August, 1989 however, shall remain suspended subject to the decision of the suit. It is submitted that it would thus appear that the issue has not been conclusively decided and it is only on the establishment that the defendant was not illegally dispossessed, the Court may direct the defendant to pay the arrears rent since 1989. Moreover, the defendant in objection to the application filed u/s 17(3) of the West Bengal Premises Tenancy Act had relied upon documents which would show that rents were deposited with the office of the Rent Controller in respect of periods which are covered under the order dated 26th May, 2003 and it is the duty of the Court to at least consider such documents which according to the petitioner are valid deposits to find out whether there had been any default. It was also submitted that even u/s 7(2) of the Act, the Court can extend the period at least once in depositing the arrears rent. This aspect of the matter was not considered by the trial Judge in striking out the defence u/s 7(3) of the West Bengal Premises Tenancy Act. It was submitted that the defendant was dispossessed without due process of law and so long this issue is not ultimately decided the order passed u/s 7(2) of the Act is only tentative and not a final determination and accordingly the provision of Section 7(3) of the Act would not get attracted.

In this regard Mr. Bandyopadhyay relied upon the following decisions:

i) Samir Sobhan Sanyal Vs. Tracks Trade Pvt. Ltd. and others,

ii) Sm. G.R. Denria vs. Pannalal Manna & Ors. 1986 (2) RCJ.

In Samir Sobhan Sanyal (supra) the vendee entered into an agreement for sale with the knowledge that the tenant was in possession. Thereafter the vendee obtained the decree for possession without impleading the tenant nor any independent suit was filed against the tenant for possession the tenant who was in possession of the premises was dispossessed in execution without due process of law. Such dispossession was held to be illegal. In Sm. G.R. Denria (supra) it was held on the facts stated therein that the Court below should have given the defendant an opportunity to deposit rent before striking out the defence.

In absence of facts clearly stated in Sm. G.R. Denria (supra) the Court is unable to find out the real reason for extending such period.

However, considering the peculiar facts and circumstances of the case and having regard to the fact that the petitioner disclosed some rent receipts which would prima facie go to show that even for the period in respect whereof the petitioner was held to be defaulter, some payments were made to the Rent Controller an opportunity should have been given to the petitioner to prove such tender of rent since if it was found to be a valid tender and valid deposit then to that extent the petitioner cannot be held to be a defaulter. It is true that no application u/s 5 of the Limitation Act was filed. Although an oral prayer could be made for condonation of delay but in these facts it would have been proper for the petitioner to file an application for condonation of delay in depositing the arrears of rent at least for the period for which they were unable to produce any rent receipts. Even from the documents of rent receipts relied upon, it appears that there would be some period for which the petitioner would still be a defaulter. It is also a fact that only after an application was filed u/s 7(3) of the Act, in the written objection some receipts were relied to resist such claim without making a formal prayer for condonation of delay in depositing such rents or for recall of the order dated 26th May, 2003.

The power of the Court to extend the time in case of default of payment of rent has been considered in the case of Shibu Chandra Dhar Vs. Pasupati Nath Auddya, . The said judgment was rendered under similar provision as was existing in the West Bengal Premises Tenancy Act, 1956. The Hon''ble Supreme Court following the earlier judgments on this point held that the Act is a beneficial legislation and such a statute has to be liberally construed so as to ensure that the statutory purpose is fulfilled and not frustrated. In paragraph ''6'' of the said decision the judgment delivered by the Hon''ble Supreme Court in the case of B.P. Khemka Pvt. Ltd. Vs. Birendra Kumar Bhowmick and Another, was considered in which Their Lordships in paragraph ''15'' held that the Court surely has the discretion to condone the default and extend the time for payment or deposit and such a discretion is a necessary implication of the discretion not to strike out the defence. In a subsequent decision in the case of Gaya Prasad Kar Vs. Subrata Kumar Banerjee, in which the Hon''ble Supreme Court allowed the condonation on the finding that there was no willful default in tendering the rent by the tenant to the landlord and it was only on account of initial refusal of the landlord the tenant was compelled to tender rents for the subsequent month for the second time which was not according to the time prescribed u/s 4 of the 1956 Act. The default was found to be too technical to be taken note of so as to arrive at a conclusion that the tenant had committed willful default in payment of the monthly rents. The power to extend such time under the Act of 1997 has been recognised by a Division Bench of this Court in Subrata Mukherjee Vs. Bisakha Das, .

In order to find out whether the order passed u/s 7(2) of the West Bengal premises Tenancy Act has been complied with or not, the Court can certainly look into the documents which would show that the amount as claimed or determined earlier may not be the actual amount payable on discovery of subsequent materials and documents. However, such a case is required to be made out.

In my view, nothing prevented the Court from looking into the documents that were produced along with the objection filed u/s 7(3) of the West Bengal Premises Tenancy Act showing payments even for the defaulted period. If such payments are genuine and valid then the petitioner could not be held to be a defaulter for such periods. It was on the basis of disclosure of such materials along with written objection filed u/s 7(3) of the Act and a clear finding in favour of the petitioner that the petitioner was dispossessed from the suit premises in August, 1989 this Court is inclined to give an opportunity to the petitioner to make a formal prayer for extension of time to deposit the rent which is required to be quantified and reassessed on the basis of the subsequent disclosures. The Court is inclined to give this opportunity to the petitioner after being inspired by the famous lines " The statute of limitation is an extremely beneficial law, on which the security of all men depends"-Serjeant Williams (2wms saund 64). The said sentence one can find on the first page of Rustomji on Limitation.

However, since it would require a fresh consideration of the amount of arrears rent and having regard to the fact that the petitioner remained silent until the application u/s 7(3) of the Act was filed, the petitioner would be permitted to have the said issues reconsidered upon payment of cost of Rs. 6,000 as a condition precedent. In the event such cost is paid within a period of one week from date, the petitioner would be permitted to file an appropriate application as may be advised for condonation of delay in depositing rent and/or recalling of the order dated 26th May, 2003. In the event such application is filed, the learned trial judge is directed to consider the said application along with the objection filed u/s 7(3) of the Act being uninfluenced by any observation made in this order and shall decide the said two applications on merits. In the event it is held that such application is an abuse of the process of law and such deposits are invalid and not genuine the trial Judge shall impose exemplary costs while dismissing such application for wasting valuable judicial time. This order shall not be construed to mean that the prayer for condonation of delay in depositing the rent has been allowed.

In so far as the issue with regard to dispossession of the petitioner is concerned, the Court must ensure that the order dated 16th January, 2007 is complied with. In order to avoid all future complications, the trial Court may appoint a special officer to hand over possession to the petitioner in presence of the opposite party. The issue as to whether the petitioner was in fact put to possession and was in possession of the suit premises from 16th January, 2007 till the possession is handed over to the petitioner by the special officer would be decided at the trial of the suit. The remuneration and other costs and charges for implementing this order should be borne by the opposite party at the first instance. The impugned orders are set aside.

The revisional applications are allowed. Photostat certified copy of the order, if applied for, be given to the parties on usual undertaking.