Kalpana Verma Alias vs Kalpana Barman & Ors.

Affidavit-of-service filed in Court today be kept with the record.

The revisional application under Article 227 of the Constitution of India is at the instance of the plaintiffs in a suit for eviction under Section 6 of the West Bengal Premises Tenancy Act, 1997 and is directed against Order dated December 06, 2016 passed by the learned Civil Judge (Junior Division), 2nd Court at Sealdah in Ejectment Suit No. 328 of 2006.

The learned Trial Judge, by the order impugned, has disposed of an application under Section 7(2) of the said Act filed by the defendants holding that there is arrears of rent due and payable by the defendant.

The plaintiffs/petitioners in the suit alleged that the defendants have committed second default in payment of rent since the month of Chaitra 1411 BS and also alleged that the defendants have failed to pay monthly rents from the months of Poush 1408 BS to Chaitra 1408 BS.

Mr. Bhattacharyya, learned advocate appearing on behalf of the petitioners submits that the learned Trial Judge, in the order impugned, has recorded that defendant no. 2, namely, Swapan Kumar Verma, deposed as P.W.1, has filed affidavit-in-chief and during the course of his examination-in-chief, he filed documents which includes rent control challans showing payments of rents for the month of Agrahaian, Poush, Magh and Falgun 1408 BS. There is no document before the learned Trial Judge showing deposit of such rent with the rent controller for the month of Chaitra 1408 BS. He also submits that the learned Trial Judge in the order impugned has recorded that from the exhibit 5 series i.e. money order coupon and postal receipt showing tendering of rent for the month of Baisakh 1412 BS. From the said exhibit it does not appear that the rent for the month of Chaitra 1412 has been deposited with the rent controller although the plaintiffs are alleging that the defendants have committed default in payment of rent for the said month also.

Mr. Bhattacharya drawing attention of this Court to an application filed by the defendants whereby the defendants have prayed for condonation of delay in depositing rent for the months of Poush 1408 BS, Bhadra 1409 BS and Agrahayan 1409 BS, submits that in view of such admitted position the validity of deposit of rent for the said months should have been decided by the learned Trial Judge before coming into a conclusion that there is no arrear rent payable by the defendants.

Mr. Halder, learned advocate appearing on behalf of the defendants/opposite parties tries to draw my attention to the written arguments filed by his clients before the learned Trial Judge to justify that the defendants have deposited rents for those months in the title appeal arising out of the earlier eviction suit.

Heard the learned advocates for the parties and perused the materials-on-records.

It appears from the record that the plaintiffs have alleged that the defendants are defaulters in payment of rent from Chaitra 1411 BS and they are also in default of payment of such rents from Poush 1408 BS to Chaitra 1408 BS. It is admitted position that the defendants have filed an application in the suit praying that delay in depositing rents for the months of Poush 1408 BS, Bhadra 1409 BS and Agrahayan 1409 BS be condoned.

On perusal of the order impugned, it does not appear that the learned Trial Judge has considered the said application of the defendants. There is also no finding in the order impugned as to whether the defendants have actually deposited the rents for the months of Chaitra 1408 BS and Choitra 1411 BS.

The suit is for eviction on the ground of second default. In a suit of such nature the order under Section 7(2) of the said Act assumes much significance and importance since the decision on the said application has an effect in the ultimate outcome of the suit.

The learned Trial Judge is, therefore, under obligation to scrutinize the validity of the deposits and payments of the rents by the defendants with utmost care and caution.

In view of the discussion made above the order impugned is set aside with a direction upon the learned Trial Judge to decide the application under Section 7(2) of the said Act filed by the defendants/opposite parties afresh expeditiously within a period of three weeks from the date of communication of this order.

It is, however, made clear that this Court has not gone into the merit of the application under Section 7(2) of he said Act or the rival claims of the parties as to the validity of the deposit and/or payments of rents by the defendants.

With the above observation, the revisional application being C.O. 564 of 2017 is disposed of.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.