Sm. Durga Devi vs Rebati Ranjan Chakrabarti and Others

Chittatosh Mookerjee, J.—Sm Durga Devi, the appellant In F. A. No 493 of 1980 had been a monthly tenant under the plaintiff respondent in respect of four rooms, one bath room and a kitchen on the first fioor of Premises No. 41, Rati Ahmed Kidwal Road at a rent of Rs. 200/ per month payable according to English calender. N. N. Man sukhani was also a monthly tenant under the plaintiff respondent in respect of. one room and one bath room on the first hoar of the same premises at a rent of Rs. 80/- per month payable according to English calender. It is the common case of both parties that both the aforesaid tenants had committed defaults in payment of rent since June, 1966 and accordingly the plaintiff respondent had instituted Ejectment Suit Nos 102 and 103 of 1968 respectively in the City Civil Court at Calcutta for their eviction under clause (i) of subsection (1) of section 13 of the Weit Bengal Premises Tenancy Act. Both the defendant tenants has deposited all arrears of rent, Interest due thereon and had complied with the provisions of sub-section (1) of section 17 of the West Bengal Premises Tenancy Act and accordingly in the said two previous Ejectment Suit Nos. 102 and 103 of 1968 the respective defendant tenants were granted benefits of sub section (4) of section 17 of the said Act.

The defendant tenants did not pey to the landlord or deposit In the office of the Rent Controller their respective rents for more than four months within a period of 12 months since August, 1969. Thereupon, the plaintiff respondents had filed the Instant two suits against them for eviction u/s 13(1)(i) of the West Bengal Premises Tenancy Act. The learned Judge, 13th Bench, City Civil Court has decreed the said two ejectment suits, inter alia, holding that In view of the proviso to subsection (4) of section 17 of the West Bengal Premises Tenancy Act both the defendants were not entitled to relief against ejectment u/s 13(1)(i) of the said Act. The case of both the defendant appellants was that one Sri Anath Bandhu Aditya, Pleader, had been entrusted by them to pay their rent since August, 1969 to the landlord.

Said Anath Bandhu Aditya nither paid the rent of the suit premises to the plaintiffs nor did he deposit the said amounts in the office of the Rent Controller The defendants had filed a criminal case against the said Anath Bandhu Aditya for breach of trust and a learned Presidency Magistrate, Calcutta had convicted the said lawyer. We understand that the appeal preferred by said Anath Bandhu Aditya against his conviction was also subsequently dismissed by the High Court.

Mr. Banklm Chandra Dun, learned advocate for the appellant, has submitted that both the defendants cannot be considered as defaulters since August, 1869 because non-payment of their respective rent since August, 1969 was net deliberate, wilful or intentional. According to Mr. Dutt, the default under clause (i) of subsection (1) of section 13 of the West Bengal Premises Tenancy Act means deliberate and wilful non-payment. Secondly. Mr. Dutt has submitted that Sri Anath Bandhu Aditya being a lawyer, payment by the defendants of the rent for the period in question to said Anath Bandhu Aditya amounted to due discharge of their obligation to pay rent, Mr Dutt further submitted that the said learned lawyer having misappropriated the money handed over by the defendants, the defendants themselves cannot suffer any prejudice and they cannot be treated as defaulters.

At the outset, it is necessary to point out that the judgment of the Criminal Court was admissible In evidence u/s 13 of the Evidence Act as proof of the factum of conviction of said Anath Bindhu Aditya u/s 408 of the Indian Penal Code. The findings made by the learned Magistrate however, cannot be relied upon by the defendants for proving their claim that they had handed over moneys to Anath Bandhu Aditya for paying rent or for depositing the same In the office of the Rent Controller. Narayan Mansu-khani the only witness examined by the defendants had deposed that they had entrusted Sri Anath Bandhu Aditya to pay rent to the plaintiff for the period from August, 1969 to May, 1970. On receipt of ejectment notice In April, 1970 the witness went to Anath Bandhu Aditya and came to knew that he did net deposit the amounts. In his cross examination the said witness admitted that he did not ask Anath Bandhu Babu to give him challans on deposit of money month by month. Therefore, he did net also try to ascertain whether he was making the deposits.

We agree with the trial court that both the defendants were defaulters in payment of their respective rents from August 1969 Admittedly, they had once obtained relief. under sub section (4) of section 17 of the Act in the previous ejectment suits and. therefore, they were not again entitled to such relief u/s 17(4) of the West Bengal Premises Tenancy Act in view of the proviso to said sub-section (4).

Mr Dutt, learned advocate for the appellant, Is not right in his submission that only a tenant who deliberately, wilfully or intentionally makes a default in payment of rent for four months or more is liable to be ejected under clause (i) of sub-section (1) of section 13 read with the proviso to sub section (4) of section 17 of the West Bengal Premises Tenancy Act Neither of the above previsions have qualified the expression default by the words deliberate wilful or intentienal. Therefore, we cannot add to the said statutory provisions relating to default. The default under the West Bengal Premises Tenancy Act means non payment of rent in accordance with provisions of the Act. The tenant u/s 4(1) of the Act has statutory obligation to pay to the landlord the fair root or the rent agreed upon as the case might be. Such rent under sub-section (2) of section 4 shall be paid within the time fixed by contract or in the absence of such contract by the 15th day of the month following the month for which it is payable.

When the landlord does not accept any rent tendered by the tenant within the lime referred to in section 4 or where there is e bonafide doubt as to the person or persons to whom rent is payable the tenant u/s 21 of the Act may deposit rent with the Rent Controller in the prescribed manner But such deposit in the office of the Rent Controller shall constitute payment to the landlord only if the same had bean deposited within the time mentioned in and section (1) of section 22 end did not cease to be invalid for the reasons mentioned in sub section (2) of section 22 of the Act.

When the tenant did not either amicably pay the rent to the landlord or had validly deposited rent to the landlord or had validly deposited rent In the office of the Rent Controller the different sub sections of section 17 give him opportunities to pay or deposit the said arreer rent with interest due thereon and to qualify for obtaining relief under sub-section (4) of section 17 against ejectment on the ground of default In payment of rent. But as already stated. such benefit under sub- section (4) of section 17 has been denied to a tenet who having once obtained such a relief has again made default in payment of root for four months within a period of 12 months. Mr. Mukherjee, learned advocate for the respondent, has rightly submitted that atleatt ao far as this court is concerned, the expression default in payment of rent" has been interpreted in Its technical or literal sense of "non-payment of rent". The West Bengal Premises Tenancy Act net having qualified the expression "made default in payment of rent", while deciding an ejectment suit, the court Is not required to enquire Into the reasons for making such default--whether the same wee deliberate, wilful or intentional. When a tenant does not pay rent due within the time prescribed by section 4 of the West Bengal Premises Tenancy Act, he makes default. A tenant who had been depositing rent u/s 21 of the said Act simply makes default when be contravenes sub section (1) or (2) of section 22 of the Act.

It would be sufficient to refer to the following observations of the Division Bench in M/s. Shree Nursing Timber Works v. Sm. Amala Bala Dassi 73 CWN 622 (530). "The defendant''s counsel argued that the word "default" connotes a blameworthy conduct on the part of the defendant- In any case, we do not consider that the word "default" has been used In section 17 in the sense suggested by tho defendant. From the scheme of the Act It la quite clear that by the word default" the fremere of the Act merely wanted to refer to the fact of non-payment of rent for any particular period". We respectfully agree with the above statement of law and hold that the defendants had committed delaulta for more than four months by neither paying to the landlord nor depositing their rente in tho office of the Rent Controller since August, 1969

The decision of a learned Single Judge of the Madras High Court in 5 C. Basappa v. Jamnadoss 1979(1) M.L.J. 317, is of no assistance to the appellant Inasmuch as the provisions of section 10(2)(i) and (ii)(a) of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960 does not appear to be pari materia with section 13(1)(i) read with section 17(4) proviso of the West Bengal Premises Tenancy Act. For the same reason, the decision of another Single Judge of the Madras High Court in A. Soundarapadian Nadar Vs. S. Madasamy Mudaliar and Another, , Is not relevant, because under the relevant law the question was whether the tenant bed committed wilful default in payment of rent. The Supreme Court in Miss. Santosh Mehta Vs. Om Prakash and Others, , interpreted section 15(7) of the Delhi Rent Control Act, 1958 by holding that the power of the Controller to order the defence against eviction to be struck out was discretionary and in proper cases he may refuse to strike out the defence Therefore, the Supreme Court held that no case for punitive exercise of discretion had been made out against the defendant who had paid to her advocates the sums but the latter had betrayed her.

D. W. 1, Narayan Mansukhanl, merely claimed that they had entrusted Anath Bandhu Aditya to pay rent to the plaintiff month by month. He did not further testify whether the defendants had tendered rent or whether the landlord had refused and that thereupon they were advised to deposit rents in the office of the Rent Controller,

We have already observed that default in payment of rent under the West Bengal Premises Tenancy Act means non payment of rent and does not necessarily involve any blame worthy conduct on the part of the tenant who neither pays the landlord nor validly deposits the rent to the Rent Controller. Secondly, In the Instant case the defendants have not proved the precise date or dates on which they had allegedly paid to their learned advocate. Since the plaintiff landlord had previously filed ejectment suits against them on the ground of default and the defendants had obtained therein relief u/s 17(4) of the West Bengal Premises Tenancy Act, it cannot be said that the defendants had been totally unaware of the legal consequences of again making default in payment of rent. Accordingly, the learned Judge of the court below was Justified in observing that the defendants were negligent by not making any enquiry whether rents were being regularly deposited. For the foregoing reasons, we conclude that by neither paying their landlord nor depositing their rents since August 1969 in the office of the Rent Controller the defendants had made defaults In payment of rent for more than four months.

We also reject the extreme contention of the learned advocate for the appellant that their alleged payment to their own learned lawyer, Anath Bandhu Aditya, amounted to valid deposit of rent in the office of the Rent Controller. In the first place, the said Anath Bandhu Aditya was the agent of the defendants. Therefore the alleged handing over money to their own agent cannot be deemed to be payments to the plaintiff landlord. The learned advocate for the appellant has drawn our attention to a large number of reported decisions which have considered mistakes or errors on the part of the lawyer as sufficient causes far condoning delay u/s 6 of the Limitation Act. In the first place, there Is certainly no general doctrine that saves parties from the results of e wrong advice or mistaken advice given by legal practitioner which may In the circumstances of a particular case give rise to sufficient cause within the meaning of section 5 of the Limltation Act (vide AIR 1937 276 (Privy Council) , The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, at page 757, The Punjabi University, etc. Vs. Acharya Swami Ganesh and Another, , M/s. Concord of India Insurance Co. Ltd. v. Sm, Nlrmala Devi end others AIR 1978 SC 1666, paragraph 6) Similar consideration may arise when applications are made for restoretion or re-hearing of cases which were dismissed for default or heard expaite on account of default of a party''s lawyer.

The above principles cannot be Invoked In case of every default by a lawyer who might have been engaged as an agent of a party. In relation to acts performed by a lawyer net qua-iawyer before a court or tribunal. We find no justification for holding that a principal who engages a lawyer as his agent for transacting any work shall not be liable for default or laches of his agent. When a lawyer is engaged to represent a party In a cause pending before the court, the lawyer concerned can be said to be performing two-fold duties. Not only he represents his client but he Is assisting the court to dispense justice end acts as an officer of the court. Therefore when due to bonafide default of his lawyer a client''s case goes by default, the courts of law have held that such mistake or error would constitute sufficient cause for condoning delay or for restoring the case for fresh hearing. These principles cannot be Invoked to the facts of the present case. In accepting deposits of rent u/s 21 (1) of the West Bengal Premises Tenancy Act, the Rent Controller acts In its administrative capacity and does not function as a court or tribunal. It was not obligatory on the part of the defendants to engage a lawyer to deposit rent u/s 21 of the Act. Accordingly by allegedly handing over money to Anath Bandrtu Aditys, the defendants cannot be deemed to have deposited rents In the office of the Rent Controller. Deposits in the office of the Rant Controller constitute payment to the landlord only when the condition precedents mentioned In section''s 21 and 22 of the West Bengal Premises Tanancy Act are fulfilled. In the instant case, there is no evidence that the defendants or their agent had tendered atlesst on one occasion a rent to the plaintiff landlord or that on refusal the defendants had made deposits in the office of the Rent Controller within the prescribed time. We conclude that the defendants after having once obtained relief u/s 17(4) had again made default since August, 1969 for more than four months end, therefore, they were not eligible for relief under the said sub-section (4) of section 17 of the West Bengal Pre mises Tenancy Act.

We, therefore, dismiss these two appeals without any order as to costs. But in view of the special facts of these cases, we direct that In case within one month from this day the appellants filed undertakings in the trial court they will be granted time to vacate till 31st March, 1985 subject to the further condition, they would go on depositing current rents at the rate last paid within 15th day of each succeeding month and in case of their default for any two months, the decree far ejectments shall become Immediately executable. If the above amounts be deposited the plaintiff respondents would be entitled so withdraw the same without prejudice and without security.

Sharma, J.

I agree.