Shanti Devi @ Durgawati Devi vs Kali Prosad Shaw

Indrajit Chatterjee, J. - This is an application under Article 227 of the Constitution of India wherein the orders dated 13-12-2013 and 18-02-2014 as passed by the learned 5th Court of Civil Judge (Junior Division), Howrah, in connection with Title Suit No. 114 of 1990 have been assailed before this Court.

It may be mentioned that vide the first order, the learned Trial Court was pleased to allow the application filed by the landlord/opposite party under Section 7(3) (sic) of the West Bengal Premises Tenancy Act and directed that the defence be struck out. In the second order, the learned Trial Court was pleased to reject the applications filed by the petitioner/tenant under Section 151 of the Civil Procedure Code praying for an order to accept the deposit, condonation of delay as regards such payment and to recall the order passed under Section 7(3) of the Act.

The fact relevant for the purpose of adjudication of this revisional application may be stated in brief thus:

The Title Suit No. 114 of 1990 was filed by the plaintiff against the original defendant, Motilal Shaw, praying for an order to evict the said tenant inter alia on the ground of default. That defendant entered into appearance and filed one application under Section 17(2) and that was allowed as per order dated 19th February, 2004 directing the tenant to deposit Rs. 8814/- within a fixed time. The defendant did not pay the said amount within that period and sat over the matter till he died in the year 2008. The legal heirs were duly substituted and those legal heirs are the petitioners before this Court.

The plaintiff ultimately filed an application under Section 7(3) or 17(3) of the Act of 1997 or 1956. That petition was filed in July, 2013, i.e. after 5 years of the death of the original defendant and roughly 9 years from the passing of the order under Section 17(2) of the Act of 1956.

On this premises, the learned Trial Court was pleased to allow the application filed by the present opposite party under that Section of the West Bengal Premises Tenancy Act and directed that the defence be struck off for non-compliance of the order under Section 17(2). It is true that in the order dated 13-12-2013 in which the petition of the plaintiff was allowed and the learned Trial Court noted that the petition was actually filed under Section 7(3) of the West Bengal Premises Tenancy Act, 1977 and later proceeded to say that Section involved was also that of Section 7(2) of the said Act. It is apparent from the order that the original defendant was directed to pay arrear rent of Rs. 5814/- as per order dated 19-02-2004 and that too within 15 Chaitra 1410 B.S.

It may be noted that as the suit was filed in 1990 there is no question of attraction of the provisions of the Act of 1997. There is no Act called as West Bengal Premises Tenancy Act, 1977. Thus, this Court is satisfied that actually the learned Trial Court misquoted both Sections 7(3) and Section 7(2) and also the Act itself. As the suit was filed in 1990 naturally, the suit was governed under the old Act of 1956 and not under the new Act of 1997 and sections ought to have been under Sections 17(2) and 17 (3) of the Act of 1956.

On the aforesaid premises, it is submitted by the learned Advocate appearing on behalf of the petitioners that actually the original defendant was a rickshaw puller and he was an old man which prevented him from making the deposit as per the order of the court dated 19-02-2004 and ultimately, he died and his legal heirs had no knowledge regarding this order and as such, they also could not comply with the said order.

Relying on the decision of the Apex Court as reported in AIR 1987 SC 1010 (M/s. B. P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick & Anr.) learned counsel tried to convince this Court that actually the court has the discretion to allow the defendant/tenant to make payment even after the stipulated date. In that decision, it was also held that expression "shall" used in Section 17(3) of the Act of 1956 as regards striking out of the defence is discretionary and not mandatory.

Learned Advocate further submitted that the West Bengal Premises Tenancy Act, 1956 being a beneficial legislation in favour of the tenant a liberal interpretation ought to have been given by the learned Trial Court while rejecting the application filed by the plaintiff presumably under Section 17(3) of the Act of 1956. By taking me to the judgement of B.P. Khemka (supra), the learned Advocate submitted that all the tenants against whom suits or appeals were pending on the date of promulgation of the Ordinance were entitled to seek the benefit of Section 17(2-A) by filing an application within one month from the date of promulgation of the Ordinance.

Thus, he submitted that the learned Trial Court ought to have exercised its discretion in favour of the tenant while allowing the application filed under Section 17(3) of the Act of 1956. He ended his argument by saying that the learned Trial Court did not enter into the merit of the applications filed under Sections 151 of the C.P.C. and if the impugned order dated 18-02-2014 is considered then this Court will come to the conclusion that the entire factual aspect was not considered at all by the learned Trial Court.

In counter to all these, Mr. Huda, learned Advocate, appearing on behalf of the plaintiff/opposite party submitted by taking me to page 7 of the revisional application containing paragraph nos. 4 and 5 to convince this court that actually the original defendant/tenant sought for protection under that section and sub-section also. Regarding the judgment of the Supreme Court in B. P. Khemka''s case (supra), learned Advocate submitted that in that case the Apex Court directed that the courts while disposing of the such applications under Sections 17(2) and 17(2A) of the Act will exercise its discretion in favour of the tenant considering the fact that it is a beneficial legislation but at the same time, the Apex Court directed as per that judgment that the court will consider the facts and circumstances of the case before the court. He submitted that in view of the case before the floor of the Apex Court, there was delay for two months and those deposits were questioned by the High Court and the trial court on technical grounds.

He also took me to the petition under Section 151 of the Code of Civil Procedure as filed by the present petitioners to say that except the factual aspect, nothing was contended in those applications. He further submitted that this case is pending since 1990 and that enough opportunity was given to the original defendant from 2004 to 2008 and to the present defendants from 2008 to 2013 but still then, they did not deposit the amount and as such, learned trial court was perfectly right in deciding the application virtually under Section 7(3) or 17 (3).

On scrutiny of the impugned order dated 13-12-2013, it appears that the learned trial court wrongly noted the arrear rent to be Rs. 5814/- but it ought to have been noted as Rs. 8814/-. I have taken into consideration the facts and circumstances of this case which show that the suit was filed in 1990. This court is in the dark as to on which date, the application under Section 17(2) or 17(2A) was filed before the court but as per paragraph no. 5 of this revisional application, it appears that the said application under Section 17(2) or 17(2A) was considered and allowed as per order dated 19-2-2004. Learned Court below was pleased to direct the defendant to pay Rs. 8814/-. It is admitted that the said amount is still unpaid. It is apparent from the fact of this case that the original defendant/tenant did not take any step to comply with the order of the court till he died in 2008. It is also true that the present petitioners/defendants also did not take any step to deposit that amount. It may be noted that the stipulated date to deposit such arrear rent was as early as on 15th Chaitra, 1410 (corresponding to English calendar year 13th April, 2004). It may also be noted that the application under Section 7(3) or 17(3) was filed in the year 2013 after a gap of roughly 9 years from the passing of the said year under Section 17(2) or 17(2A). This court is not unmindful of the direction of the Apex Court as given in B.P. Khemka''s case (supra) to interpret the legislation and the terms in favour of the tenants but at the same time the Apex Court directed that discretion is to be exercised on the facts and circumstances of the case. It is true that the principle has been laid down in that case that the word under Section 17(3) of the Act of 1956 is to be read as discretionary and not mandatory.

Be that as it may, considering the facts and circumstances of the case, this court is of the opinion that the defendants/tenants very negligently did not try to deposit that amount. Question raised by the learned Advocate appearing on behalf of the petitioners that the original defendant was a rickshaw puller has no backing before this court in any of the petitions cited in this revisional application. The capacity of the tenant to pay certain amount is not to be considered while disposing of one application under Section 17(2) or Section 17(2A). If the party is in default, he has to pay that amount as may be assessed by the court. Here, in the instant case, the matter proceeded for 9 long years but the original defendant and also the present defendants/petitioners did not take any step till the application of the plaintiff filed under Section 17(3) was allowed.

The plaintiff/opposite party cannot said to be was in a hurry to file the application under that section as he waited for long 9 years to file such an application.

Thus, in view of the discussion so long made, this court is not at one with the learned Advocate appearing on behalf of the petitioners that the impugned orders be set aside. I find no irregularity in the said order except the misquoting of sections which this court has regularised while discussing the fact of this case. I reiterate that Section 7(2) be read as Section 17 (2) and Section 17 (3) and the act be read as West Bengal Premises Tenancy Act of 1956.

Thus, this application under Article 227 of the Constitution of India is hereby dismissed on contest.

There will, however, be no order as to costs.

Both the orders passed by the learned trial court are hereby confirmed.

Learned trial court is directed to see that the suit in question, which is already 26 years old, may be disposed of as early as possible, preferably within one year from the communication of this order.

SOffice is directed to communicate this order to the learned trial court at once.