Sri Tarun Ghosh vs Sashi Shekhar Gupta & Anr.

The defendant in an eviction suit has preferred this application under Article 227 of the Constitution of India against two orders. By the first of the

impugned orders, an application made by the petitioner under Section 151 of the Code of Civil Procedure, for recalling of an order passed under

Section 7(2) of the West Bengal Premises Tenancy Act, 1997 has been rejected. By the second impugned order, an application filed by the

plaintiff/opposite party under Section 7(3) of the said act has been allowed, thereby striking out the defence of the petitioner.

The petitioner submits that grave injustice would be done if the impugned orders are permitted to be sustained, since the order under Section 7(2) of

the said act was passed without taking into consideration several challans which showed the deposit of rent for many of the months, in resect of which

the defendant/petitioner was held to be a defaulter. Since the subsequent order striking out the defence of the petitioner is only consequential to the

first order rejecting the application for recall of the previous order under Section 7(2) of the said act, the subsequent order should also be set aside.

The petitioner has also annexed certain photocopies of purported challans in this regard. The opposite parties appear and oppose the application and

also point out that some of the challans relate to deposits made after the order under Section 7(2) of the said act was passed. Upon a consideration of

the materials on record, it appears that it would be a travesty of justice in the event the petitioner had actually deposited rent for certain periods, but

despite such deposit the defence of the petitioner is struck out on an erroneous calculation of the arrears.

As such, C.O. No. 804 of 2018 is allowed by setting aside the orders made herein and directing the Civil Judge (Junior Division) 3rd Additional Court

at Alipore to take up for hearing and dispose of the petitioner’s application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997

afresh upon consideration of the subsequent challans, which were filed by the petitioner in the Court below and upon giving an opportunity of hearing.

It is made clear that due credit will be given upon ascertainment of the veracity of the challans to deposits made prior to the adjudication of the

application under Section 7(2) of the said Act. Deposits made subsequent to such date may be ignored for the purpose of adjudication of liability to be

exercised by the trial court. After the aforesaid order is passed, leave is prayed for on behalf of the opposite parties to prefer a special leave petition

before the Supreme Court against this order and a limited stay in aid of such proposed special leave petition is also prayed for. However, since in the

opinion of this Court, no substantial legal question is involved justifying the preference of a special leave petition, such prayers for leave as well as stay

are refused.

At this juncture, it is submitted by the learned advocate for the opposite parties that they were served with a copy of this revisional application only

today and as such, though could not factually go through the contents of the application. To this, the learned advocate for the petitioner submits that

such copies were given despite no caveat have been lodged by the opposite parties prior to move the said application under Article 227 of the

Constitution of India.

These submissions are recorded for the sake of propriety in view of the fact that a clear picture should be available before the Supreme Court of all

events, which transpires in Court in the event of a special leave petition is moved. There will be no order as to costs.