Madhabi Mukherjee vs Dipali Mitra

Jyotirmay Bhattacharya, J.

Re: RVM No. 43 of 2008

The defendant (tenant) has filed this application praying for review of the order passed by this Court on 24th September, 2007 in C.O. 3357 of

2007. By the said order, the order of the learned Trial Judge by which the defence of the tenant was struck out for non-compliance of the

provision of the section 7(1) of the West Bengal Premises Tenancy Act, 1997, was affirmed by this Court, as this Court found that the deposit of

rent for certain period were invalid as such deposits were not made in the manner as prescribed u/s 7(1) of the said Act. The suit for eviction was

filed by the landlord under the provision of the West Bengal Premises Tenancy Act, 1997, in 2005. At the time when the said suit was filed, there

were three options available to the tenant for deposit of rent. ''One of such options was to pay the rent to the landlord directly; the other option

was to deposit the rent with the controller and the other option was to deposit such rent with the Court.

Subsequently in 2006, the provision of section 7(1)(a) was amended and the forum for deposit of such rent with the controller was deleted. The

said amendment of 2006 came into effect on 1st June, 2006 since when as per the amended provision of the said Act only two forums were

available to the tenant for deposit of rent in connection with the pending eviction suit. One of such options was to pay the rent directly to the

landlord'' and the other option was to deposit the rent with the Court in connection with the pending suit.

Admittedly, the tenant deposited the rent regularly with the rent controller upto August 2007 without following the mandate of the said amended

provision of law. Thus, the deposit of rent with the rent controller for the period from June 2006 to August 2007 became invalid, as those deposits

were not made inconformity with the amended provision of the said Act. In fact that was the reason for which the defence of the tenant against

eviction was struck out by the learned Trial Judge on the application filed by the landlord u/s 7(3) of the said Act.

This Court has also affirmed the said order of the learned Trial Judge by the order which is now under review. If the order under review is

considered at a glance then this court does not find any apparent illegality in the said order as the deposit for the period from June 2005 to August

2007 were all invalid deposits.

But fact remains that the tenant deposited the rent for the said period regularly with the rent controller.

Thus, this is the case where this Court finds that the default which the tenant committed in depositing rent for the said period is really a default in

technical sense and not a default in real sense, as it is really a case of irregular deposit and not a case of non-deposit of rent. As such this Court by

following the decision of the Hon''ble Supreme Court in the case of B.P. Khemka Pvt. Ltd. Vs. Birendra Kumar Bhowmick and Another, holds

that striking out of the defence of the tenant against the eviction for such technical defaults, was not justified.

As such this Court holds that the order which was passed by this Court on 24th September, 2007 is required to be reviewed.

The application for review is thus, allowed.

The order being order No. 11 dated 10th August, 2007 passed by the learned 5th Judge, Presidency Small Cause Court at Calcutta in

Ejectment Suit No. 299 of 2005 by which the defence of the petitioner against the eviction in the said suit, was struck out is set aside.

The revisional application being C.O. 3357 of 2007 is thus, allowed.

Re: C.O. No. 826 of 2008

Let me now consider the other revisional application filed by the tenant/defendant.

By the impugned order being No. 16 dated 25th January, 2008 passed by the learned Judge 5th Bench Presidency Small Cause Court at

Calcutta in Ejectment Suit No. 299 of 2005 the defendant''s four applications were rejected.

As a matter of fact, after the defence of the defendant against eviction was struck out u/s 7(3) of the West Bengal Premises Tenancy Act,

1997, the defendant filed an application u/s 7(1) of the said Act. Since he filed the said application beyond the prescribed time of limitation, he filed

another application u/s 5 of the Limitation Act for condonation of delay in filing the said application u/s 7(1) of the said Act. He also filed another

application u/s 7(2) of the said Act along with another application u/s 5 of the said Act for condonation of delay in filing the said application u/s

7(2) of the said Act.

Since the petitioner deposited the rent all throughout since January 2001 regularly with the rent controller till August 2007, the petitioner was

under the impression that he was not required to take recourse to the provision of section 7(2) of the said Act. However, ultimately the learned

Trial Judge found that the deposit for certain period i.e. from June 2006 to August 2007 were invalid as the deposit for the said period was not

made in consonance with the amended provision of the said Act.

After his defence was struck out by the learned Trial Judge, the tenant filed a revisional application before this Court which was also rejected

by this Court. It is only at that point of time, the tenant was advised to file those four applications so that invalid deposits can be regularised.

However, considering the reason for the delay in filing those two applications u/s 7(1) and 7(2) of the said Act and also by taking note of the

order which the Court has passed on the review application, this Court allows the petitioner''s application for condonation of delay filed in

connection of those two applications u/s 7(1) and 7(2) of the said Act and for expediting the hearing of the suit this Court takes up those two

applications for hearing on merit with the consent of the parties.

Mr. Dey, learned advocate appearing for the plaintiff/opposite party has rightly pointed out that under the scheme of the present Act, there is

no provision under which such invalid deposits with the controller can be regularised.

In my view, he is absolutely correct in his submission that those invalid deposits cannot be regularised even by correction of challans. As such,

this Court holds that regularization of such invalid deposit is not possible under the scheme of the present Act.

Having regard to the fact that the deposits for the period from June 2006 to August 2007 are invalid, the tenant is now required either to pay

the rent for the said period directly to the landlord or to deposit such arrear rent with the Court.

Admittedly, the tenant could not deposit the rent for the subsequent period i.e. from September 2007 till date as his defence was struck out.

Since the order of striking out of his defence has been set aside by this Court, the tenant is now required to pay the arrear rent for the period from

September 2007 till June 2012.

Since Mr. Dey''s client is agreeable to accept the entire arrear rent for the said period directly, this Court directs the petitioner to pay the entire

arrear rent for the period from June 2006 to July 2012 either to the landlord/opposite party directly or to his learned advocate on record in the

Court below positively by 31st July, 2012.

It is also made clear that in the event, the landlord and his learned advocate on record refuses to accept such payment directly, the petitioner

(tenant) will be at liberty to deposit rent with the Court within seventh day of August 2012.

Liberty is granted to the petitioner (tenant) to withdraw the invalid deposits which were made by him with the controller for the period from

June 2006 onwards.

It is however made clear that in default of payment of such amount or any part thereof within the time as aforesaid, the order of striking out the

defence which was passed by the learned Trial Judge earlier, will stand revived.

The tenant is also directed to go on depositing regularly the rent for the current months from August 2012 onwards in any of the modes as

prescribed under the Act.

The impugned order is thus, set aside.

This revisional application is allowed subject to payment of cost of Rs. 20,000/- to be paid by the petitioner (tenant) to the plaintiff/opposite

party by 31st July, 2012.

Considering the stage of the trial of the suit, this Court directs the learned Trial Judge to expedite the hearing of the suit as far as possible so

that the suit can be disposed of preferably within 31st December, 2012. Urgent Xerox certified copy of this order, if applied for, be supplied to the

learned advocate for the petitioner immediately.