Saswati Dutta vs Devjyoti Das Choudhuri

Subhasis Dasgupta, J

The impugned order dated 6th December, 2018, passed by the learned Civil Judge (Junior Division), 3rd Additional Court, Alipore in Ejectment Suit No. 108 of 2016, rejecting petition under Section 151 of the Code of Civil Procedure, dated 08.06.2018, filed by defendant/petitioner praying for fresh computation of the arrears of rent for the error occurred in the order dated 04.01.2018, and for liquidation of arrears of rent by three (3) installment, instead of two (2) installment as already ordered, is the subject matter of challenge in this revisional application.

The Trial Court disposed of 7(2) petition of W.BP.T. Act, 1997, on 21.06.2017, holding the defendant/petitioner to be a defaulter since October, 2012 to May, 2016, and accordingly directed a total amount of Rs.58,080/-(rupees fifty eight thousand eight) for liquidation being the arrears of rent for 32 months together with 10 % (ten percent) interest within two (2) month from the date of this order by two (2) installment.

Having detected some errors in the computation of arrears of rent, plaintiff/landlord already took out an application under Section 151 of C.P.C. for necessary correction of the order dated 21.06.2017, already disposing of the 7(2) petition of W.B.P.T. Act, 1997.

The Trial Court by order dated 04.01.2018, modified the order doing necessary correction for the inadvertent mistake occurred in connection with the computation of arrears of rent. By order dated 04.01.2018, while correcting the previous order dated 21.06.2017, the Trial Court modified the period of defaulter for 44 months i.e. from October, 2012 to May, 2016, and accordingly directed tenant/defendant to deposit in all total Rs.1,18,187/- within two (2) months from the date of order (04.01.18). It was also observed in such order, dated 4.01.2018, by the Trial Court that if an amount of Rs.58,080/-, as already adjudicated being the arrears of the rent vide order dated 21.06.2017, was already paid by the tenant/defendant, in that event, he was supposed to pay further sum of Rs. 58,107/- within one (1) month. After expiry of 5 (five) months of disposal of petition of plaintiff/landlord seeking for correction, the petitioner/tenant/defendant woke up again having discovered further error in the order dated 04.01.2018, by which he was held defaulter for 44 months i.e. from October, 2012 to May, 2016, which according to petitioner/tenant ought to have been for 43 months in all. It was at this background, the petition Under Section 151 C.P.C. was filed by the petitioner/tenant/defendant on 08.06.2018. By the order impugned learned Trial Court rejected the petition under Section 151 C.P.C. holding that it had no power to revise its own order dated 04.01.2018.

Learned advocate for the petitioner/defendant, while raising challenge against the impugned order, submitted that though petitioner had already complied with the order, passed by the Trial Court by depositing the amount on 05.12.2018 and 03.01.2019 respectively, but the error committed by the Trial Court in connection with the computation of arrears of rent ought not to have been allowed to perpetuate any more. It was thus proposed by the learned advocate for the petitioner that due to miscalculation of arrears of rent, the petitioner/defendant was highly confused, and complied the direction of the Trial Court by making two deposit, as mentioned above, doing little departure in the given circumstances of the case, which the Trial Court would necessarily take care of the same in connection with an appropriate issue, if raised, at any point of time.

Learned advocate for the petitioner further submitted that when the petitioner/defendant had deliberate intention to deposit the arrears of rent, as already adjudicated by the Trial Court, and when petitioner/defendant had already deposited the arrears of rent by making two (2) deposit on two different dates, in compliance with the order of the Trial Court, the petitioner/defendant should not be put to mischief of Section 7(3) of the W.B.P.T Act, 1997.

Per contra, learned advocate for the plaintiff/landlord submitted that instant petition under Section 151 C.P.C. had been filed by the petitioner/defendant seeking further correction of the order passed under Section 7(2) of W.B.P.T. Act, 1997, which was nothing but a purposive one, simply to drag the proceedings for an indefinite period of time. Contending the deposits pertaining to the arrears of rent, as already adjudicated by the Trial Court in connection with the 7(2) of proceeding of W.B.P.T Act of 1997, to have been made at the sweet will of the petitioner/defendant, not being to secure compliance of the order passed by the Trial Court, learned advocate for the landlord/opposite party submitted that the same would automatically attract the provision of Section 7(3) of the W.B.P.T Act, 1997, and upon noticing the same, filed long before the instant petition, this purposive petition under Section 151 C.P.C had been filed. It was also contended by learned advocate for the plaintiff/opposite party that whenever the petitioner defendant/tenant had already deposited the arrears of rent at their sweet will on two different dates, consequences thereunder would inevitably follow, and the same could not be resisted taking plea of error, occurred in the computation of arrears of rent. Upon raising such points landlord/opposite party sought for dismissal of this revisional application.

The only point to be addressed by this court is whether the Trial Court could correct an error, or an apparent mistake occurred in the computation of arrears of rent in connection with the proceeding under Section 7(2) of the W.B.P.T. Act, 1997, taking recourse to Section 151 of C.P.C. or not.

The admitted case of the parties is that petitioner/defendant committed default in the payment of rent since November, 2012 to May, 2016. From the order dated 21.06.2017, it appears that while disposing of 7(2) petition of W.B.P.T. 1997, the Trial Court had taken notice of a fact that plaintiff/landlord had accepted rent and granted receipt to the defendant/tenant up to the month of October, 2012, at the rate of Rs. 1800/- per month. The averment contained in para 3 of the plaint reiterated the same thing describing the tenant to have committed default in the payment of rent since November, 2012 to May, 2016. The dispute raised by the parties with regard to the arrears of rent thus squeezed to one month only, what according to petitioner/defendant was wrongly calculated, but it was according to plaintiff/landlord such correction, if done at this stage, would hardly serve any purpose to plaintiff. The significant aspect is that adjudication of arrears of rent is of paramount consideration while disposing of petition under Section 7(2) of W.B.P.T Act, 1997. If there be any inadvertent mistake, miscalculation occurred in the process, serious will be the consequence. Therefore, calculation, computation of arrears of rent in connection with 7(2) proceeding of W.B.P.T. Act significantly calls for perfect computation with mathematical precision to serve the legislative intent. The Trial Court is thus, obliged to apply its judicial mind sincerely and meticulously, so that there could not be any error in the computation of arrears of rent.

When there had been a previous correction of the order, dated 21.06.2017, for the inadvertent mistake occurred in the calculation of arrears of rent with the aid of Section 151 and 152 of C.P.C. on the prayer of the landlord/opposite party, there could be further correction, if the circumstances necessitated such correction for the inadvertent mistake occurred in the calculation of the arrears of rent by the Trial Court, taking resort to Section 151 C.P.C. Though, defendant/petitioner had already deposited the amount on two different dates, the reference of which is mentioned hereinabove, but that would not stop the petitioner/defendant from raising such plea soliciting further correction on the ground of miscalculation of arrears of rent.

Learned advocate for the petitioner/defendant sought to fortify the case of the petitioner by referring 4 decisions mentioned hereinunder:

The decision rendered in the case of M/s B.P. Khemka Pvt. Ltd. Vs. Birendra Kumar Bhowmick reported in (1987) 2 SCC 407;

2013 SCC Online Cal 20244, delivered by learned Judge of this court in the case of Smt. Pramila Mukjherjee Vs. Smt. Uma Kar;

2019 (2) CLJ (Cal) 458, rendered in the case of Asit Kumar Kundu @ Asit Kundu;

2015 (1) CLJ (Cal) 333, delivered by learned Single Judge of co-ordinate Bench of this court in the case of Ashok Kumar Bhagnani Vs. Mansur Ahmed & Anr.

All such 4 decisions referred above, are relatable to a situation where an order striking out the defense against delivery of possession was passed either under Section 17(3) of W.B.P.T Act, 1956, or under Section 7(3) of W.B.P.T. Act, 1997, which was the subject matter of the challenge in such cases.

Learned advocate for the plaintiff/opposite party countered such decisions, as referred by the petitioner, submitting that in the absence of disposal of 7(3) petition, filed by the opposite party/landlord which was pending in the Trial Court, there could not be any application of such decision sought to be relied upon.

Learned advocate for the plaintiff/opposite party further contended that the ratio decided by the Apex Court, in the case of M/s B.P. Khemka Pvt. Ltd. (Supra), would not be applicable in the given set of facts, as such decision came into being upon consideration of W.B.P.T. Act, 1956.

Without any controversy, the object of enactment of 1956 Act is different from the objective purpose of 1997 Act, which is intended to secure a balance between the interest of the landlord and the tenant. The interest of the landlord was not adequately taken care of in 1956 Act.

The time limit to deposit arrears of rent, as prescribed under Section 7(2) of 1997 Act, including its proviso, has to be mandetorily observed, so as to secure compliance of the order passed under Section 7(2) of W.B.P.T. Act, 1997. Such proposition of law came to be decided in the case of Joga Singh Vs. Shashi Bala Sinha, reported in (2018) 5 CHN 665, as referred by learned advocate for opposite party.

Attention of the court was drawn by the learned advocate foe the opposite party/plaintiff to a decision reported in 2017 SCC Online Cal 16183, delivered in the case of Sudha Ranjan De & Ors. Vs. Sri Ganga Narayan Banerjee, in order to establish that the power of court to extend time, so as far as deposit of arrears of rent is concerned, as mentioned in 7(2) of W.B.P.T. Act, 1997, is restricted to be exercised once.

Same was the view, as decided in the case of Smt. Bina Devi Binani Vs. Raremsh Kumar Gupta (since deceased) by Smt. Kiran Gupta, reported in (2015) 3 Cal LT 384, as sought to be relied upon by learned advocate for the opposite party.

Finally, referring a further decision of Division Bench of this court delivered in the case of Subrata Mukherjee Vs. Bishakha Das, reported in (2012) 3 CHN 423, learned advocate for the opposite party/plaintiff submitted that the time limit shown in Section 7(2) of W.B.P.T. Act was inflexible one, and could not be extended under any circumstances, even taking support of Section 5 of the Limitation Act.

From the certified copy of the order of the lower court record, it appears that the opposite party/plaintiff filed a petition dated 12.03.2018, under Section 7(3) of W.B.P.T. Act of 1997, which admittedly could not be disposed of as yet by the Trial Court.

Learned advocate for the both the parties are thus, ad idem on the point that the petition filed by the plaintiff/landlord under Section 7(3) of W.B.P.T. Act, 1997, could not be disposed of as yet. That being the position, the court is of the view that it is not the appropriate time to look into those decisions largely relied upon by both the parties to this case.

This court should neither take into account, nor address a situation doing hypothetical exercise or even by surmise and conjecture, what the Trial Court had no occasion to dispose of the issue pertaining to 7(3) of W.B.P.T. Act, 1997, up till date.

The situation is not thus matured enough to place any implicit reliance upon those decisions, as discussed above. It is thus, left to be decided by the Trial Court in connection with the prayer under Section 7(3) of W.B.P.T. Act, 1997.

Since, simpliciter point was raised by the petitioner/defendant soliciting correction in the order dated 04.01.20108, holding the petitioner to be a defaulter for 44 months, commencing from October, 2012 to May, 2016, instead of 43 months, such point should have been duly addressed to by the Trial Court taking resort to Section 151 of C.P.C., irrespective of the consequence, that would follow on the premise that adjudication of arrears of rent on the prayer of 7(2) of W.B.P.T. Act, 1997, irresistibly calls for perfect computation of arrears of rent with mathematical precision.

The impugned order rejecting petitioner under Section 151 C.P.C. dated 08.06.2018, filed by the petitioner/defendant, as such can not go unaltered.

Accordingly, the impugned order is set aside.

The Trial Court is directed to hear out the petition dated 08.06.2018 under Section 151 C.P.C. filed by the petitioner/defendant afresh, giving sufficient opportunity to learned advocate for opposite party within two (2) months from the date of communication of this order, and to decide the issue afresh in accordance with the law.

After disposal of such 151 petition dated 08.06.2018, the Trial Court is further directed to dispose of the pending 7(3) petition under W.B.P.T. Act, 1997 as expeditiously as possible preferably within two (2) months thereafter, independently adhering strictly to the provisions of law without being influenced by the discussions covered in this revisional application.

Petitioner is directed to make communication of this order to the learned court below.

With this observation, the Revisional Application thus stands disposed of. Urgent certified copy of this order and judgment, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.