Sri Sukumar Bhattacharya vs Smt. Renuka Hazra and Others

Prasenjit Mandal, J.—Challenge is to the Order No. 39 dated September 14, 2012 passed by the learned Civil Judge (Junior Division), 3rd Court, Asansol in Title Suit No. 29 of 2009 thereby disposing of an application u/s 7(2) of the West Bengal Premises Tenancy Act, 1997. The predecessor-in-interest of the plaintiffs/opposite parties herein instituted a suit for eviction of the defendant/petitioner herein before the learned Trial Judge on the ground of, inter alia, default and causing damage. The defendant/petitioner after receiving the summons of the suit entered an appearance and submitted a written statement denying the material allegations contained in the plaint. He also filed an application u/s 7(1) and another application u/s 7(2) of the West Bengal Premises Tenancy Act, 1997 contending, inter alia, that the rate of rent is Rs. 320/- per month including electricity charges and the plaintiff declined to accept the rent from the defendant after February 2002 and as such, he was compelled to tender rent by money order with the Rent Controller and then to deposit rent with the Court after appearance in the suit. So, he has filed the application u/s 7(2) of the said Act for determination of the rent and the quantum of arrears of rent to be paid by the defendant to the plaintiff. That application was disposed of by the learned Trial Judge by passing the impugned order holding that the defendant is a defaulter in payment of rent for a period of 127 months since February 2002 to till date at the rate of Rs. 320/- per month and thus, he has directed to defendant/petitioner herein to pay a sum of Rs. 44,704/- inclusive of interest. Being aggrieved, this application has been preferred.

Now, the question is whether the impugned order should be sustained.

Having heard the learned Counsel for the parties and on going through the materials on record, in my view, the impugned order cannot be sustained. While filing the suit for eviction, the plaintiffs/opposite parties herein has described that the rate of rent for the premises in suit is Rs. 350/- per month and not Rs. 320/- as contended by the defendant.

He has also contended that the defendant is a defaulter in payment of rent since January 2007 and that the deposits tendered by the defendant with the Rent Controller are not valid as the deposits were not tendered after sending the same to the plaintiff by way of money order. So, he prayed for dismissal of the said application.

It is surprising to note that while the plaintiff has claimed that the defendant is a defaulter in payment of rent since January 2007, the learned Trial Judge has observed that the defendant is a defaulter in payment of rent since February 2002. So, such findings of the learned Trial Judge are beyond the pleadings of the parties and the same cannot be accepted at all. So, in all fairness, I am of the view that the matter should be remanded back for a decision afresh.

It is pertinent to mention that the defendant has tendered oral and documentary evidence in support of his contention on the application u/s 7(2) of the 1997 Act and the plaintiffs did not adduce any evidence. By way of supplementary affidavit, the plaintiffs have proved that the rent for the premises in suit was at the rate of Rs. 320/- per month payable according to English Calendar Month and this is also the findings by the learned Trial Judge.

From the material Exhibit Nos. 1 to 9, it appears that the defendant has been able to prove that he tendered rent to the plaintiff/landlord by way of money order upon refusal and such money order had been returned on being refused. Under such circumstances, the deposits had been made by the defendant/petitioner herein with the Rent Controller. Since the claim of the plaintiffs is the effect that the defendant is a defaulter since January 2007, the learned Trial Judge is not required to calculate the arrears of rent starting from February 2002 and the fact of refusal in such circumstances for the month of January 2007 cannot be the matter of consideration before the learned Trial Judge.

Accordingly, the learned Trial Judge should be directed to hear out the application afresh on the basis of the evidence already tendered on the application u/s 7(2) of the 1997 Act and he should calculate the arrears of rent, if any, from January 2007 onwards. He should also take into consideration that the rent deposited by the petitioner in the Court after appearance and then he shall pass appropriate orders thereon afresh.

The impugned order is, therefore, set aside. The application is allowed to the extent indicated above.

The learned Trial Judge is directed to calculate the arrears of rent afresh starting from January 2007 prior to the month in which the impugned order was passed. The said application u/s 7(2) of the 1997 Act must be disposed of by the learned Trial Judge within four weeks from the date of communication of the order to him. Thereafter, he shall proceed with the suit in accordance with law.

Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.