Malati Malik And Others vs Swapan Kumar Nag And Others

Important questions have been raised by the defendants in this revisional application under Article 227 of the Constitution of India. Two orders have

been challenged in the present revision. By the first, an application filed by the petitioners under Section 7(2) of the West Bengal Premises Tenancy

Act, 1997 was dismissed on contest, on the sole premise that the tenants had not deposited the admitted arrears as contemplated in Section 7(2) of the

said Act of 1997. Consequentially, by the same order dated August 18, 2017, the defence of the petitioners was struck out under Section 7(3) of the

said Act of 1997. Subsequently, the petitioners took out another application under Section 7(2), along with an application under Section 5 of the

Limitation Act for condonation of delay in filing the second application.

The contention of the petitioners was that, since the previous application was not rejected on merit, the second application under Section 7(2) of the

said Act of 1997 was maintainable. Such second application was also dismissed, giving rise to the second impugned order dated March 13, 2018.

Relying on a Division Bench judgment of this Court reported at 2012(3) CHN (CAL) 423 (Subrata Mukherjee Vs. Bishakha Das) (paragraph- 40),

learned counsel for the petitioners argues that the time limit for deposit of even the admitted arrears of rent, as contemplated in sub-sections (1) and

(2) of Section 7 of the said Act of 1997, is not inflexible.

As such, it is argued, non-deposit of such amount could not tantamount to violation of a mandatory provision to justify outright rejection of the

application under Section 7(2) of the said Act of 1997. As such, the trial court exercised jurisdiction not vested in him by law in dismissing the

application under Section 7(2) of the said Act and striking out the defence of the defendants. Next submission advanced by the learned counsel for the

petitioners is that the language of Section 7(2) of the aforesaid Act stipulates that no deposit of the amount as specified in sub-section (2) of Section 7

of the said Act could be accepted if the same was not accompanied by an application under the said provision. It is not the other way round, and as

such, it cannot be said that an application without such a deposit is not valid in the eye of law.

The third argument advanced is that there is no sanction for non-deposit of the admitted arrears to render such provision mandatory.Hence, the

deposit of such admitted arrears is at best directory and not a sine qua non for taking up an application under Section 7(2) of the said Act for

adjudication. The last leg of the submissions of the learned counsel for the petitioners is that in construing the provisions of Section 7(3) of the said

Act, the court has to be liberal. In support of such proposition, the petitioners cite a judgment reported at 2015(1) CLJ (Cal) 333 (paragraphs 6 to 9)

(Ashok Kumar Bhagnani Vs. Mansur Ahmed and Anr.). In controverting such arguments, the learned counsel for the plaintiffs/opposite party nos. 1

to 3 submits that the stipulation of deposit of admitted arrears is mandatory and has to be complied with even for an application under Section 7(2) of

the said Act to be taken up for adjudication.

Relying on a judgment reported at 2018(1) CLJ (Cal) 162 (Mr. Anwar Hussain Vs. Raja Mohammed Amin and Ors.), rendered by a co-ordinate

Bench of this Court, it is submitted that the provisions of Section 7(2) of the said Act are mandatory and absence of deposit of admitted arrears is fatal

for the defendants’ application under Section 7 (2) of the said Act. Accordingly, it is submitted, the trial court was perfectly justified and within its

jurisdiction in striking out the defence of the petitioners upon dismissal of the petitioners’ application under Section 7(2) of the said Act of 1997 for

non deposit of admitted arrears.

As to the second impugned order, it is submitted that, in effect, merits of the first application under Section 7(2) of the said Act were gone into by the

first impugned order.As such, it is argued, the second application under the same provision was not maintainable at all. At this juncture, certain queries

were put to the learned counsel for the opposite party nos. 1 to 3 by this Court. Learned counsel for the opposite party nos. 1 to 3 seeks some

breathing space to get ready with the matter on such aspect.

Accordingly, C. O. 921 of 2018 will appear as a ‘listed motion’ along with C. O. No. 1263 of 2018 on July 3, 2018. There will be an order of

stay of operation of the order dated August 18, 2017 passed by the Civil Judge (Junior Division), First Court at Chandernagore, DistrictHooghly, in

Title Suit No. 281 of 2016 as well as the stay of all further proceedings in the said suit till July 31, 2018 or until further orders, whichever is earlier.

Service on opposite party nos. 1 to 3 is dispensed with in view of appearance through learned advocate. Service on the proforma opposite party is also

dispensed with for the time being.