Smt. Malti Devi @APPELLANT@Hash Smt. Amira Devi & Ors

Biswajit Basu, J.

The revisional application under Article 227 of the Constitution of India is at the instance of the plaintiff in a suit for eviction and is directed against

the order dated June 8, 2017 passed by the learned Civil Judge (Junior Division) 6th Court, Howrah in Title Suit No. 65 of 2012.

The opposite parties in the suit on May 28, 2012 filed an application under Section 7(2) of the West Bengal Premises Tenancy Act,

1997(hereinafter referred to as the said Act in short). The learned Trial Judge by the order dated May 26, 2017 disposed of the said application by

directing the tenants/defendants to pay the arrear rent of Rs. 8,745/- to the credit of the plaintiff in one instalment on June 8, 2017 and amount

equivalent to the last paid admitted rent was directed to be deposited within 15th of each succeeding month.

The learned Trial Judge by the order impugned enlarged the time for deposit of the arrear rent of Rs. 8,745/-, as determined by the order dated May

26, 2017 till August 18, 2017.

The plaintiff/petitioner has two fold grievances against the order impugned. The first grievance of the petitioner is the learned Trial Judge should not

have extended the time for deposit of the said arrear rent determined under Section 7(2) of the said Act, in the absence of any prayer for such

extension of time. Her second grievance is that under the provision of 7(2) of the said Act the tenant is required to deposit the amount of arrear rent

within one month from the date of the order. The learned Trial Judge by the order impugned allowed the tenant to deposit the said arrear rent, beyond

one month by extending the said time till August 18, 2017.

The learned advocate appearing on behalf of the petitioner in support of the said first grievance of the petitioner places reliance on Om Prakash and

others vs. Ram Kumar and others reported in AIR 1991 SUPREME COURT 409. The said learned advocate by referring to the paragraph no. 4 of

the said reported decision submits that a party cannot be granted a relief which has not been claimed.

The said learned advocate in support of the said second grievance of the petitioner refers the following decisions:-

(i) ARUP KUMAR ATTA VS. SUSANTA KUMAR GHOSH reported in 2014 (5) CHN (CAL) 424.

(ii) Smt. BINA DEVI BINANI VS. Smt. RAMESH KUMAR GUPTA (SINCE DECEASED) BY Smt. KIRAN GUPTA reported in (2015) 3 CAL

LT 384 (HC).

(iii) NILIMA DAS VS. BIJAY KUMAR MANISH KUMAR HUF reported in 2016 (5) CHN (CAL) 367.

(iv) Sri. LOKNATH DHAL VS. Smt. GITA RANI ROY reported in 2016 (1) CLJ (Cal) 202.

The said learned advocate submits that in all the aforesaid decisions it has been held that the order passed under 7(2) of the said Act must be

complied with within one month from the date of the said order. The learned Trial Judge, therefore has exercised jurisdiction not vested in him by

extending the time to comply the order under Section 7(2) of the said Act till August 18, 2017 which is more than one month from the date of the order

under Section 7(2) of the said Act.

The learned advocate for the petitioner by referring the judgement of the Hon’ble Apex Court in case of Jaisri Sahu vs. Rajdewan Dubey and

others reported in AIR 1962 SUPREME COURT 83 submits that when there is a conflict in decision on a question of law between two Benches of

the same High Court the question should be referred to the larger Bench. The said learned advocate also places reliance on the decision of Sundeep

Kumar Bafna vs. State of Maharashtra and other reported in AIR 2014 SUPREME COURT 1745 to contend the rule of per incuriam is essential to

maintain consistency of ruling.

The learned advocate on behalf of the opposite parties, on the other hand submits that the application under Section 7(2) of the said Act was

disposed of by the Learned Trial Judge on May 26, 2017. In the said order the Learned Trial Judge erroneously directed the tenants to deposit the

arrear rent within 14 days from the date of the said order i.e. within June 8, 2017. The Learned Trial Judge by exercising his power under Section 151

of the Code of Civil Procedure corrected the error committed by him in fixing shorter time limit than the provision of Section 7(2) of the said Act

provides for a tenant to deposit the arrear rent.

He further adds that by virtue of the proviso appended to Section 7(2) of the said Act, the tenants/defendants are entitled to an extension of time

for deposit of the arrear rent determined under Section 7(2) of the said Act for a further period of two months from the date of the initial order.

Therefore according to him the tenants/defendants are entitled to deposit the arrear rent within ninety days from the date of the order disposing the

application under Section 7(2) of the said Act. The tenants/opposite parties pursuant to the order impugned deposited the said arrear rent on August 2,

2017 i.e. well within 90 days from the date of the initial order under Section 7(2) of the said Act. The said learned advocate to get support of his said

submission places reliance on an unreported decision of the learned Single Judge of this Court in the case of Md. SAMUD VS. Sri. ANIL

MUKHERJEE passed in CO No. 2826 of 2017.

The learned advocate for the opposite party relying on the decision of Sitala Debi(Sm.) vs. Man Bahadur. reported in 76 C.W.N. 435 submits that

for the error committed by the learned Trial Judge in fixing a shorter period of time to deposit the arrear rent than the period of time within which the

tenant is entitled to deposit such rent under Section 7(2) of the said Act and the proviso thereof. The learned Court below has rectified such error by

the order impugned in exercise of it’s power under Section 151 of the Code of Civil Procedure which the Court always has. He further contends

that such power should have been exercised to cover cases where a breach occurs not for the fault or negligence of the defaulting party but on

account of an action or inaction of Court.

Heard learned advocates for the parties, perused the materials on record.

The learned advocate for the petitioner although tried to contend that the application under Section 7(2) of the said Act is not maintainable since

the opposite parties without complying the provision of Section 7(1) of the said Act had filed the application under Section 7(2) of the said Act. The

order disposing the application under Section 7(2) of the said Act is not under challenge in the present revisional application. In fact the petitioner has

accepted the said order. Therefore it is not open to the petitioner to contend that the application under Section 7(2) of the said Act is not maintainable.

The provision of Section 7(2) provides that the Civil Judge shall, having regard to the rate at which rent was last paid and the period for which

default may have been made by the tenant, make, as soon as possible within a period not exceeding one year, an order specifying the amount, if any

due from the tenant and, thereupon, the tenant shall, within one month of the date of such order, pay to the landlord the amount so specified in the

order. The proviso appended to the said provision of the said Act provides that having regards to the circumstances of the case an extension of time

may be granted by the Civil Judge only once and period of such extension shall not exceed two months.

It is an admitted position in the present case that the Learned Trial Judge fixed a period of time to deposit the arrear rent in his order disposing the

application under Section 7(2) of the said Act which is shorter than the period stipulated under the said provision of the said Act. The Learned Trial

Judge corrected the said error by the order impugned. The tenants therefore had no occasion and/or scope to apply for extension of time to deposit the

arrear rent.

In the decision of the Hon’ble Apex Court relied on by learned advocate for the petitioner reported in AIR 1991 SUPREME COURT 409 a

landlord instituted a proceeding against another person who is not a real tenant, the real tenant was not proceeded against but the landlord sought

eviction of the original tenant who is in possession. In the said context the Hon’ble Apex Court in the said report observed that a party cannot be

granted a relief which is not claimed. The fact and circumstances of the said case is completely different from the present case. Therefore the

contention of the Learned Advocate for the petitioner that in the absence of any prayer of the Learned Trial Judge should not have extended the time

to deposit arrear rent has no merit accordingly fails.

The tenants/defendants by the order impugned was permitted to deposit the arrear rent within August 18, 2017 i.e. within 84 days from the date of

initial order disposing the application under Section 7(2) of the said Act. i.e. well within the period stipulated under Section 7(2) of the said Act and the

proviso thereof.

The decision relied on by the leaned Advocate for the petitioner reported in 2014 (5) CHN (CAL) 424(supra), it has been held that the tenant is

liable to deposit the arrear rent within one month from the date of order under the said provision of the said Act. The tenant, however, under the

proviso appended to section 7(2) of the said Act is entitled to an extension of time for compliance of such order for a period not exceeding two months

from the date of the order under Section 7(2) of the said Act. In the present case the tenants/opposite parties have deposited that arrear rent in

compliance of the order under Section 7(2) of the said Act within three months from the date of the said order. The said decision, therefore, comes in

aid of the opposite parties.

In the decisions relied on by the learned Advocate for the petitioner reported in (2015) 3 CAL LT 384 (HC)(supra) and reported in 2016 (5) CHN

(CAL) 367(supra) the question falls for consideration before the learned Single Judge of this Court was whether a defendant/tenant who has failed to

deposit the arrear rent in terms of the order passed by the learned civil Judge under sub-section (2) of section 7 of the said Act of 1997 can file an

application, after the expiry of the last date of payment directed by a Civil Judge, for extending the time for payment of arrear rent either under section

151 of the Code or under section 5 of the Limitation Act, for condonation of delay. In the present case as has already been held that the tenant had no

occasion and/or scope to apply for extension of time to deposit the arrear rent and the tenant has deposited the arrear rent determined under Section

7(2) of the said Act within three months from the date of such order. The said decisions, therefore, have no manner of application in the facts and

circumstances of the present case.

In the decisions relied on by the learned Advocate for the petitioner reported in 2016 (1) CLJ (Cal) 202(supra) is of no help for the petitioner, in as

much as in the said decision the learned Single Judge of this Court has held that there is no scope of providing extension of time or condonation of

delay in default to deposit the rent under Section 7(2) of the said Act after expiry of this stipulated period of time, but the issue involved in the present

case is quite different, with that of the said reported decision, as such has no manner of application in the present case.

The unreported decision relied on by the learned Advocate for the opposite party in the case of Md. SAMUD VS. Sri. ANIL MUKHERJEE

passed in CO No. 2826 of 2017.The learned Single Judge of this Court held as under:-

“In any event, the extended time available to a tenant to make the payment, if taken into account, appears to be three months from the date of the

order passed under Section 7(2) of the Actâ€​.

In the present case the tenants/opposite parties have deposited the arrear rent within three months from the date of order under Section 7(2) of the

said Act. Therefore such deposit is within time as held in the aforesaid decision.

In all the decisions, discussed above there is no conflict on the point that the order under Section 7(2) of the said Act is required to be complied

within one month from the date of the order, but the tenant by virtue of the proviso appended to the said Section 7(2) of the said Act, is entitled to an

extension of time for compliance of the said order which is not exceeding two months from the date of the said order. Therefore, the decisions of the

Hon’ble Apex Court relied on by the learned advocate for the petitioner reported in AIR 1962 SUPREME COURT 83 and AIR 2014 SUPREME

COURT 1745 are not relevant to the issues involved in the present revisional application.

In the decision reported in 76 CWN- 435(supra) it has been held that the Court has always the inherent power to make such orders as may be

necessary for ends of justice and to prevent abuse of process of Court and such power can be exercised to rectify an action or inaction of the Court

for which a party litigant may be prejudiced. The relevant portion of the paragraph no. 15 of the said reported decision is the produce below:-

“15. Under section 151, the Court has always the inherent power to make such orders as may be necessary for ends of justice or to prevent abuse

of the process of the Court. The exercise of this power has been extended to cover cases where a breach occurs, to the prejudice of a party litigant

and to the advantage of the other litigant, not due to any fault or negligence of the defaulting party but on account of an action or inaction of Court on

the principle Actus Curiae neminem gravabit.....â€​.

In the present case the learned Trial Judge disposed of the application under section 7(2) of the said Act erroneously fixing a shorter period for

deposit the arrear rent than the period within which the tenant is entitled to deposit such arrear rent by virtue of the said provision of the said Act. The

learned Trial Judge by the order impugned rectified the said error by extending the time to deposit the arrear rent. The tenant deposited the arrear rent

within the period stipulated under Section 7(2) of the said Act and the proviso thereof. The decision reported in 76 CWN-435 (supra) is directly

applicable in this case.

In view of the discussions made above this Court is of the opinion that the order impugned does not suffer from any illegality or infirmity. C.O 3080 is

therefore dismissed. No order as to costs. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance

with all requisite formalities.