Nandalal Karmakar vs Sudhirlal Das

S.K. Bhattacharyya, J.—This application by the Plaintiff under 115 of the CPC is for setting aside the order passed by the Judge, Eighth Bench, City Civil Court, Calcutta, in an ejectment suit instituted by the Plaintiff against the Defendant opposite party.

Facts leading up to the present application may briefly be stated.

The Petitioner instituted a suit for eviction of the Defendant from the suit premises on ground of default in payment of rent and also for reasonable requirements for his own use and occupation and for the purpose of building and rebuilding. The Plaintiff alleged that the Defendant was a monthly tenant in respect of the suit premises at a rental of Rs. 101-88 P. payable according to English calendar month, which was determined by a notice to quit dated July 21, 1970.

After the summons was served on the Defendant opposite party on July 24, 1972, he entered appearance on July 31, 1972.

On August 10, 1972, the opposite party filed two applications under Section. 17(1) and Section 17(2A)(b) of the West Bengal Premises Tenancy Act, 1956, inter alia, praying for permission to deposit the rent for the month of July 1972 at Rs. 101-88 P. and subsequent rents thereafter By the second application the Defendant claimed that he had already deposited the rent upto June 1972 with the Rent Controller to the credit of the Plaintiff and in case the Court was of opinion that any rent was still payable by the Defendant to the Plaintiff, he might be granted easy instalments therefore. On the following day the Defendant filed another application u/s 17(1) of the West Bengal Premises Tenancy Act, 1956, wherein it was stated that the rent for the month of November 1971 was deposited by the Defendant on January 25, 1972 and by way of abundant caution, the Defendant was willing to deposit the rent for that month with statutory interest thereof in the Court. The Plaintiff filed objection to these applications disputing the Defendant''s rights to claim instalments and also the legality and validity of the deposits alleged to have been made by him.

The matter was heard by the learned Judge, City Civil Court, who by his order dated April 3, 1973, found that the Defendant had deposited the rent upto February 1973, but the amount of rent fell short by 88 P. each month during the period from July 1972 to February 1973. The learned Judge accordingly permitted the Defendant to deposit the balance rent with statutory interest on an interpretation of Section 17(2A)(b) of the Act.

It is against this order that the Plaintiff moved this Court and obtained a Rule.

It is contended on behalf of the Petitioner that the learned Judge was in error in applying the provision of Section 17(2A)(b) of the Act to the facts of the instant case in the absence of an application u/s 17(2) of the Act. In other words, it was contended that since the Defendant did not raise any dispute as to the amount of rent payable by him within the meaning of Section 17(2) of the Act, it was not open to him to apply Sub-section (2A)(b) of the said section.

On behalf of the opposite party it was pointed out that the impugned order did not come within the scope or ambit of Section 115 of the CPC and this Court would not, therefore, interfere with the order in revision. At any rate, the principle embodied in the maxim De minimis non curat lex would apply in the facts of the instant case.

After hearing the learned Advocates of the parties at length and on a careful consideration of all the materials made available to the Court, I see no sufficient reason to interfere with the order passed. It is not disputed that the applications filed by the Defendant before the trial Court were filed within time. What the Petitioner''s dispute is that the Court did not have the power to invoke the provisions of Sub-section (2A) unless a dispute had been raised before the Court under Sub-section (2). Before the learned Judge, it was contended that the application u/s 17(2A)(b) was filed at a very late stage, but it would appear from the records that an application u/s 17(2A)(b) was made before the Court on August 10, 1972 and an objection thereto was filed by the Plaintiff on December 21, 1972. Consequently, this objection before the learned Judge appears to have been misconceived.

Sub-section (2A) opens with a non obstinate clause and refers to Sub-section (1) or Sub-section (2) notwithstanding whereof an application may be made by the tenant to the Court. Therefore, an application under Sub-section (1) would also come within the scope of Sub-section (2A) and notwithstanding anything contained in the earlier sub-sections, an application could be made by the tenant to the Court either for extension of time or for payment of rent in arrears by instalments. An application under Sub-section (2A), in my opinion, could therefore be filed notwithstanding an application under either of the two earlier sub-sections or there may also be a composite application within the time specified combining an application under Sub-section (2A) read with Sub-section (1) or an application under Sub-section (2A) read with Sub-section (2). The instant application having been made within the time specified must, therefore, be regarded as a composite application under Sub-section (1) read with Sub-section (2A) and even if it was not so there is an application on the record under Sub-section (1) of Section 17 made within the time specified.

The learned Advocates appearing for the Petitioner, however, contended that even if the application be treated as one coming within Sub-section (2A)(b) of the Act, the learned Judge was not entitled to split up the rent and direct payment only in relation to the portion of the rent in default, thereby precluding the landlord from getting the statutory interest on the entire rent due for the period. This contention cannot be regarded as valid, particularly, with regard to the deposits to be made under Clause (b) of Sub-section (2) of Section 17 of the Act, which speaks of adjustments of the deposits of rents already made. I see no reason why this analogy should not be available to the tenant in case of an application under Sub-section (1) read with Sub-section (2A) of Section 17 of the Act.

Admittedly, the rent payable by the Defendant is Rs. 101-88 P. per month and there is also no dispute that it had been deposited in the City Civil Court from July 1972 to February 1973 at the rate of Rs. 101 per month, there being a shortage of 88 P. per month during this period. The total amount falling short is thus Rs. 7-04 P. Even if this contention of the learned Advocate for the Petitioner is accepted, the principle embodied in the maxim De minimis non curat lex should apply in the facts of the instant case. The principle was made applicable in the case of Suhash Chandra v. Panchu Rani 64 C.W.N. 438 where the tenant failed to deposit a small amount by way of interest in accordance with the provisions of Section 17(1) of the Act and the Court held that the above principle applied.

As to the arguments advanced on behalf of the opposite party that even if it be assumed that the decision of the trial Judge was erroneous, on a question of law, it had no relation to the question of jurisdiction of that Court and this Court cannot, therefore, correct the error u/s 115 of the Code of Civil Procedure. In the case of Shri M.L. Sethi Vs. Shri R.P. Kapur, the Supreme Court pointed out that

a distinction must be drawn between the errors committed by Subordinate Courts in deciding the questions of law which have relation to or are concerned with, questions of jurisdiction of the said Court and errors of law which have no such relation or connection. An erroneous decision on a question of law reached by a subordinate Court, which has no relation to the question of jurisdiction of that Court, cannot be corrected by the High Court u/s 115.

In the instant case, the decision on the question of law has no relation to the question of jurisdiction of that Court in determining the issue before it and in that view of the matter the present application would not also be maintainable.

In the result, therefore, the application fails and the rule is discharged. In the circumstances of the case, I make no order as to costs.