Sri (Dr.) Kalyan Kumar Ghosh vs Sri Prabir Biswas

The defendant in an eviction suit filed under the West Bengal Premises Tenancy Act, 1997 complains of the failure on the part of the trial court to

take up an adjudication that it was obliged to under Section 7(2) of the said Act. The contention of the petitioning defendant is that the trial court

refused to exercise a jurisdiction that the trial court was vested with in terms of the statute. It appears that the plaintiff purchased the suit property

from the petitioner’s original landlord who had inducted the petitioner, apparently for a tenure of three years, in 1996. There is no averment in the

petition regarding the attornment of the tenancy and no specific averment as to any demand for rent or payment thereof qua the defendant prior to a

notice being sent for eviction.

A written statement has been filed by the petitioner herein followed by an application under Section 7(2) of the Act. It may be of some relevance in

the context that in the suit filed in the year 2016 the plaintiff claimed that the defendant was a defaulter from November, 2014. The case in the plaint

is that the monthly rent was Rs.500/-, but the defendant asserted, both in the written statement and in the application under Section 7(2) of the Act

that the monthly rent was Rs.400/- and a further Rs.100/-would be paid on account of electricity charges. It is in such context that paragraphs 4 and 5

of the defendant’s application under Section 7(2) of the Act may be seen.

“4) That it is denied that the defendant is a defaulter with effect from November 2014 as alleged or at all. All the allegations are concocted and

spurious allegations and the defendant paid the rent in cash till this date. But the plaintiff some frivolous pretext the absence of bill is avoiding the

issuance of rent receipt month by month.

“5) That the landlord and tenant relationship, the period of default and the rate of rent as to be default are required to be adjudicated and/or

determined with the scope of 7(2) of W.B.P.T. Act. The defendant came to the knowledge as to the alleged suit for eviction 4351 of 2016 before Ld.

5th Civil Judge Jr. Division, Howrah on receiving a copy from Prabir Biswas dated 08/12/2016 relating to Misc. Case No. 89/2015 before Rent

Controller Howrah by a copy which served upon the defendant by the plaintiff in this present case. A copy is enclosed herewith for your Honour as

ready reference.â€​

If the language is pardoned, the general sense that is conveyed by the aforesaid two paragraphs is that the defendant had paid the rent in cash till the

date of filing the application under Section 7(2) of the Act and that the plaintiff had refused to issue any rent receipt. Further, as is evident from the

first sentence of paragraph 5, the defendant claimed that an adjudication was called for on all three aspects:

the landlord-tenant relationship between the parties to the suit; the period of default, if any, in the payment of rent; and, the rate of rent to be paid in

respect of the premises in question. The trial court dismissed the application in limine by the order impugned dated March 22, 2018 on the observation

that the defendant failed to produce any document in support of his claim and that the defendant did not comply with the requirements of Section 7(1)

of the Act. As a consequence, by the order impugned the defence was struck out against the claim of delivery of possession and the hearing of the

suit was directed to be proceeded with.

The plaintiff relies on a judgment reported at 82 CWN 515 and another at (1987) 2 CHN 1 for the proposition that if an adjudication on sham disputes

is sought by a defendant in an eviction suit merely to waste time and prolong the defendant’s occupation of the tenanted premises, the court will

see right through the exercise and reject the prayer out of hand. The judgments in both cases were rendered under the previous Act of 1956 and upon

subsequent disputes being raised or extension for time to make the payment being sought upon the original adjudication already being made. The

judgments in such cases would have been apposite if the present impugned order had been passed on a petition under Section 7(3) of the Act.

Implicit in the defendant’s averment to the effect that he had paid “rent in cash till this date†and the subsequent sentence that “the

plaintiff … is avoiding the issuance of rent receipt …†is the assertion that the rent had been paid to the plaintiff. If the rent had been paid to the

plaintiff, there is no question of any dispute as to the landlord and tenant relationship as between the plaintiff and the defendant. Further, the quantum

of rent claimed in the plaint was Rs.500/-, against which the assertion by the defendant in the written statement and in the application under Section

7(2) of the Act was that Rs.400/- was earmarked as rent and Rs.100/- as electricity charges. Thus, the monthly pay-out was Rs.500/- and, in a sense,

since the charges on both heads were fixed, the total amount can be regarded as the monthly rent. There was, thus, no dispute as to the quantum of

monthly rent. To such extent, the trial court was justified that completely frivolous disputes had been sought to be raised on such two counts.

However, there was the minor matter of ascertaining what the quantum of default was in the light of the plaint case being that rent had not been paid

from November, 2014 and the allegation at paragraph 4 of the application under Section 7(2) of the Act to the effect that rent had been paid in cash till

the date of such application.

The plaintiff submits that such part of the defendant’s case has been rightly disbelieved and disregarded by the trial court since it is inconceivable

that a tenant would pay rent, demand receipts for such rent and not take any action despite being refused the receipts. The plaintiff refers to Section

21 of the Act which gives the remedy to a tenant to deposit the rent to the rent controller in such circumstances. The plaintiff is perfectly justified in

the assertion that it is difficult to accept that a tenant would tender rent to the landlord and walk away without taking a receipt; or demand a receipt

and be satisfied despite being denied such receipt. But just as there may be many a slip between the cup and the lip, it is possible to establish by

cogent evidence that the monthly rent was tendered to the plaintiff or to the plaintiff’s order without due receipts being issued in respect thereof. It

is a question of proof. And this is where the trial court went wrong in denying the petitioning-defendant a chance to prove the allegation made in

paragraph 4 of the application that monthly rent was tendered to the plaintiff or to the order of the plaintiff till date of the application. It is difficult to

imagine how the defendant may be able to prove what he has asserted; but it is not beyond the realms of possibility.

Section 21 of the Act applies when a landlord refuses to accept the rent. Of course, a landlord refusing to issue a receipt despite accepting the rent is

also a situation covered by Section 21 since it would be a foolish tenant who would pay without any evidence to show that he had made the payment.

However, the moot point is whether an assertion by a tenant that he has paid the rents due to the landlord can be thrown out without any adjudication

merely because he also says that receipts for such payments had not been issued by the landlord. The tenant has to be given a chance to prove his

assertion. It is possible that there may be a witness or the like whose evidence may be unimpeachable. At any rate, such a possibility cannot be

completely ruled out without calling for evidence to be received.

It is possible that the adjudication may lead to the inescapable conclusion that there was no real dispute as the defendant may not be able to establish

what has been stated by the defendant; but that does not mean that the adjudication can be avoided altogether. If, upon adjudication, the assertion by

the defendant is found to be false or untenable or not established, it is open to the trial court to award costs and not exercise any discretion in favour of

the defendant, where there is an authority to use discretion; but the trial court cannot refuse to adjudicate on such dispute, once such dispute has been

raised.

For the reasons aforesaid, the order impugned dated March 22, 2018 cannot be sustained and the same is set aside with a request to the trial court to

ensure that the petition under Section 7(2) of the Act is taken up for adjudication on the score of the quantum of default as expeditiously as possible

and without affording any adjournment to the parties. The trial court will be entitled to award costs as the conduct of the defendant may warrant and

exercise no discretion in favour of the defendant if the assertion at paragraph 4 of the application cannot be established. CO 1208 of 2018 is disposed

of without any order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the

requisite formalities.