Kalyan Mondal vs Rajat Koruri & Anr.

Challenge in this application is against the Order dated 7th September,

2016 passed in C.R. No. 7 of 2015 affirming the order dated 06.08.2015 passed

by the ld. Civil Judge (Junior Division), 7th Court, Howrah in Title Suit no. 7 of

2006 by the learned District Judge, Howrah.

Brief facts leading to this case is that the opposite parties as plaintiffs

brought a Title Suit against the predecessor-in-interest of the petitioner being

Title Suit no. 7 of 2006 in the court of learned Civil Judge (Junior Division), 7th

Court at Howrah praying inter alia, a decree for Khas possession of the suit

premises by evicting the defendant/petitioner his men, agents and servants

therefrom and for damages and mesne profits.

In the said suit the predecessor-in-interest of the petitioner as defendant

filed an application under Section 7(2) of the West Bengal Premises Tenancy Act

1997 disputing the ownership of the landlord and inter alia that the

plaintiff/opposite party no. 1 collected rent from the month of February, 2003 to

February, 2006 but did not grant rent receipts. An application under Section

7(1) of the West Bengal Premises Tenancy Act, 1997 was also filed to allow the

defendant to deposit the current rent @ Rs. 250/- per month from the month of

March, 2006. The said applications u/s 7(2) WBPT Act, 1977 was allowed and

the defendant was directed to liquidate the arrear rent of Rs. 10,000/- payable @

Rs. 2,000/- per month by five installments along with current rent by 15th of

each succeeding month vide order dated 26/02/2007. According to petitioner,

said order has been complied with.

Since, the original defendant tenant died on 27th July, 2007, the petitioner

could not deposit the rent unless substituted in the suit. It is contended that

after substitution, the petitioner prayed for permission to deposit the arrear rent

and also current rent by filing an application under Section 151 of Code of Civil

Procedure which was rejected by learned trial court on 6th August, 2015 which

order was impugned in revision before the learned District Judge but the same

was dismissed on 7th September, 2016 holding inter alia that the revisional

application is not maintainable.

This is the said order impugned which is under challenged in this

revisional application under the scheme of Article 227 of the Constitution of India

on the ground that the learned Judge acted illegally and with material irregularity in not considering the fact that unless the present petitioner was

substituted in the proceeding, he was unable to comply with the order passed in

proceeding under Section 7(2) and 7(1) of the West Bengal Premises Tenancy Act.

Learned counsel for the opposite party at the outset submitted that the

revisional application is not maintainable in view of the fact that the scope of the

power of revision by the High Court under Section 115 of the Code of Civil

Procedure as amended by the Code of Civil Procedure (Amendment) Act, 1999

has been decided in case of Mrityunjay Sen versus Shrimati Sikha Sen

reported in 2003(1) CLJ, 263 wherein it has been held that the Code of Civil

Procedure (Amendment) Act of 1999 and Civil Procedure (Amendment) Act of

2002 was challenged in the Supreme Court of India and the Apex Court in the

case of Salem Advocate Bar Association, Tamil Nadu v. Union of India

reported in 2002 SAR (Civil) 922 upheld the vires of the said amending Acts.

It has been observed that with effect from July 1, 2002 when the amended

provisions of Section 115 of the Code of Civil Procedure came into force, the

revisional jurisdiction of the High Court has been materially restricted. In order

to invoke the revisional jurisdiction of the High Court the party concerned is not

only to satisfy the High Court that by order impugned subordinate Court

exercised a jurisdiction not vested in it by law or failed to exercise a jurisdiction

vested in it by law or acted in the exercise of its jurisdiction illegally or with

material irregularity but also to satisfy the High Court that if the order had been

made in his favour that would have finally disposed of the suit or the proceeding. So by the proposed amendment the legislature suggested that no revision would

lie against such orders which do not finally decide the lis.

It has further been observed that it can never be suggested that the High

Court can interfere with each and every order passed by a Court subordinate to it

only if the requirements of Sub-Section (1) of Section 115 CPC are satisfied or for

the ends of justice or to prevent abuse of the process of court can refuse to look

into the proviso to said Sub-Section (1). Amendment was introduced by the

amending Act of 1999 to restrict the power of revision only in respect of cases

where the order would have finally disposed of the suit or the proceeding if it had

been made in favour of the party applying for the revision.

Accordingly, it has been settled that the revisional application will only lie

against such final or interlocutory order if it has been made in favour of the party

applying for revision would have finally disposed of the suit or proceeding.

It would appear from the impugned order that a revisional application was

preferred by the petitioner/defendant before the learned District Judge, Howrah

under Section 115A of Code of Civil Procedure contending that the opposite

party/plaintiff filed suit for eviction of the original defendant/tenant from the

suit premises who having entered appearance had filed application under Section

7(2) and Section 7(1) of WBPT Act 1997 for depositing current rent and arrear

rent.

The revisional application so preferred by the petitioner was coupled with

an application under Section 5 of Limitation Act for condonation of delay of 44

days in preferring the revisional application. The learned Judge condoned the delay by allowing application under Section 5 of Limitation Act and the revisional

application was taken up for hearing on the point of admission on consent of the

parties to the suit but dismissed the revisional application with his opinion that

application was not maintainable on the proposition as laid in case of

Mrityunjay Sen versus Shrimati Sikha Sen (supra).

It reflects from order dated 26th February, 2007 that defendants'' petition

under Section 7(2) WBPT Act was decided holding that there was relationship of

landlord and tenant between the parties as the defendant is a monthly tenant @

Rs. 250/- per month payable according to English Calendar month in respect of

the suit premises and the arrear rent of Rs. 10,000/- was to be liquidated by the

defendant by five equal installments @ Rs. 2000/- per month payable by 15th of

each succeeding month along with current rent.

It would appear from rent challan for the months of March to July, 2007

that the rent in arrear were liquidated in terms of the order but the defendant did

not deposit the current rent.

It further reflects from order sheet that an application under Section 151

CPC was filed on behalf of the petitioner on 30th August, 2015 before the learned

trial court to allow him to deposit the rent in arrear which was rejected. It is

contended on behalf of the petitioner that his father died and rents could not be

deposited. I do agree with the contention of the petitioner that unless he gets

substituted in the suit he had no option open for deposit of rent with rent

controller as it was available under the scheme of the WBPT Act, 1956, but in the

present case situation is otherwise which is axiomatic from the order dated 26th February, 2007. The Order-sheet goes to show that the petitioner appeared by

filing Vokalatnama, on 30th August, 2007 after the death of his father the original

defendant whereas the petitioner filed application under Section 151 Code of Civil

Procedure for allowing him to deposit the arrear rent on 30.9.2013.

In this context, learned Counsel for the opposite party adverts my attention

to the order dated 26th February, 2007. It depicts that the petitioner himself

deposed as P.W. 1 on behalf of his father. So he had every knowledge about the

order for deposit of the arrear along with the current rent but he filed application

under Section 151 of Code of Civil Procedure belatedly only on 30th September,

2013 whereas he was substituted on or before 30th August, 2007 after the demise

of his father. Therefore, it was rightly held by the trial court that the

petitioner/defendant had defaulted in deposit of rents willfully beyond by the

statutory period of limitation as envisaged under Section 7(3) of the Act. The

dismal conduct of the petitioner being the substituted defendant is apparent from

the application for revision filed before the learned District Judge coupled with an

application under Section 5 of Limitation Act for condonation of 44 days delay.

This is not the case where the court can gather from the conduct of the

parties that there was a regular or erratic payment of rents and the landlord

having accepted the accumulated rent in one go without any demur. Therefore, it

cannot be said that defendant petitioner was not a willful defaulter.

In the context above, this court does not find any ground to interfere into

the order impugned holding the revisional application was not maintainable.

Thus, the revisional application is dismissed however without any order as

to costs.

Urgent certified photocopy of this Judgment and order, if applied for, be

supplied to the parties upon compliance with all requisite formalities.