Subhas Saha and Others vs Sova Saha and Others

Ashis Kumar Chakraborty, J.—1. The revisional application is directed against the Order No. 109 dated March 03, 2015 passed by the learned Judge, 6th Bench, Presidency Small Causes Court, Calcutta in Ejectment Suit No. 94 of 2003. By the impugned order, the learned Court below rejected the applications filed by the petitioners, as the defendants in the said ejectment suit, under Sections 17(2) and 17(2A) (a) and (b) of the West Bengal Premises Tenancy Act of 1956, (hereinafter referred to as "the Act of 1956") and an application under Section 151 of the Code of Civil Procedure (hereinafter referred to as "the Code").

The facts of the case giving rise to this revisional application lay in a very narrow compass and they may be briefly set out as follows.

The petitioners'' father, since deceased, was a tenant under the opposite parties in respect of the suit property. In September, 1996 the opposite parties filed the Ejectment Suit No. 418 of 1996, against the father of the petitioner, before the learned City Civil Court at Calcutta claiming a decree for his eviction from the suit property, inter alia, on the grounds of default of rent since March, 1973 and reasonable requirement. The petitioners'' father, as the defendant in the said ejectment suit filed applications under Sections 17(2) and 17(2A) (a) and (b) of the Act of 1956 together with an application for condonation of delay under Section 5 of the Limitation Act. In view of the City Civil Court, (Amendment) Act, 1999 the said ejectment suit stood transferred to the Presidency Small Causes Court, Calcutta and was renumbered as Ejectment Suit No. 94 of 2003. Subsequently, the ejectment suit further stood transferred for disposal before the learned Court below.

In view of the coming into force of the West Bengal Premises Tenancy Act, 1997, with effect from July 10, 2001 the said Act of 1956 stood repealed. However, as the present suit was already pending as on the date the new Act came into force, the same is governed by the provisions of the said Act of 1956.

Under Sub-section (1) of Section 17 of the Act of 1956 the defendant tenant, in an ejectment suit was required to deposit in the Court or pay to the landlord, within one month from the service of the writ of summons, all arrears of rent calculated up to the month previous to that in which the deposit or payment is made, together with interest at the rate of 8.33 per cent, per annum. Sub-section (2) of Section 17 of the Act of 1956, provided for filing of an application by the tenant, in case of any dispute as to the amount of rent payable by him, for determination by the Court of the rent payable. Sub-section 2(A) (a) and (b) of Section 17 of the Act of 1956 conferred power upon the Court to make an order to extend the time for deposit or payment of amount referred to under Sub-section (1) or Sub-section (2) of Section 17 and also to permit the tenant to pay by instalments, the sum required to be deposited or paid under an order under Sub-section (1) or Sub-section (2).

By an order dated September 20, 2003, the learned Court below disposed of the applications filed by the petitioners'' father under Sections 17(2) and 17(2A) (a) and (b) of the Act of 1956. The learned Court below held that the rent in respect of the suit property is Rs. 40/- per month and not Rs. 23/- per month as claimed by the defendant, the defendant had defaulted to pay rent for 367 months from March, 1973 to September, 2003, amounting to Rs. 14,680/- and directed the petitioners'' father, the defendant in the suit, to pay the said sum, together with the stipulated rate of interest of 8.33 per cent, per annum amounting to Rs. 16,000/-. By the said order, the learned Court below further allowed the application of the petitioners'' father under Sub-section (2A) (a) and (b) of Section 17 of the Act of 1956 and directed him to pay the said sum of Rs. 16,000/- to the plaintiffs by way of ten (10) equal monthly instalments of Rs. 1,600/- commencing from October, 2003 as also to continue to pay the monthly rent of Rs. 40/- per month by month. The petitioners'' father who died on November 12, 2007, did not at all comply with the said order dated September 20, 2003 passed by the learned Court below. He even did not pay the current rent as directed by the said order. With the death of their father, the petitioners were substituted as the defendants in the ejectment suit. After being impleaded as defendants in the said ejectment suit, the petitioners were served with the writ of summons and on December 08, 2008 they filed fresh applications, under Sections 17(2) and 17(2A) (a) and (b) of the Act of 1956 together with an application for condonation of delay. On December 08, 2008, the petitioners moved the said application under Section 17(2) of the Act of 1956 ex parte, when the learned Court below permitted them to deposit the rent entirely at their own risk and without prejudice to the rights and contentions of the parties. On June 20, 2013, the petitioners once again filed applications under Sections 17(2) and 17(2A) (a) and (b) of the Act of 1956.

By the order dated December 16, 2014 the learned Court below rejected all the applications filed by the petitioners on June 20, 2013 under Sections 17(2) and 17(2A) (a) and (b) of the Act of 1956. The learned Court below held that in view of the earlier applications filed by the petitioners'' father under Sections 17(2) and 17(2A) (a) and (b) of the Act of 1956 and disposal of the said applications by the said order dated September 20, 2003, the subsequent application of the petitioners under the same provisions of the Act of 1956 were not maintainable. The petitioners did not challenge the said order dated December 16, 2014. On February 27, 2015 they filed another application before the learned Court below under Section 151 of the Code praying for, an order to deposit all arrear rent from the month of March, 1973. Thereafter, on March 03, 2015, the learned Court below took up all the said applications filed by the petitioners on December 08, 2008 under Section 17(2) and Section 17(2A) (a) and (b) of the Act of 1956 together with the application to pay all arrear of rent. By the order dated March 03, 2015, that is, the order impugned in this revisional application, the learned Court below once again held that in view of the order dated September 20, 2003 disposing of the applications filed by the petitioners'' father under the same provisions of the Act of 1956, the subsequent applications filed by the petitioners, as the substituted defendants in the ejectment suit, is not maintainable. By the impugned order, the learned Court below also rejected the application filed by the petitioners on February 27, 2015, under Section 151 of the Code to allow them to pay all arrear rent, on the ground that in view of the non-compliance of the order dated September 20, 2003 passed by the Court legal rights have accrued to the plaintiffs opposite parties under Section 17(3) of the Act of 1956 for striking out the defence of the defendants petitioners against delivery of possession.

Mr. Chatterjee, the learned senior advocate appearing in support of the petitioners strenuously contended that by the impugned order the learned Court below committed an error of law, in rejecting not only the applications filed by the petitioners under Sections 17(2) and 17(2A) (a) and (b) of the Act of 1956 but also by rejecting the petitioners'' subsequent application for deposit of all arrear rent from March, 1973 with statutory interest. According to him, it is well settled that the right of tenancy under the Act of 1956 is a heritable right, after the death of their father, the petitioners became the tenants in respect of the suit property and after service of the writ of summons, the petitioners as the substituted defendants were entitled to file fresh application under Sections 17(2) and 17(2A) (a) and (b) of the Act of 1956. Thus, Mr. Chatterjee urged that the finding of the learned Court below that in view of the said order dated September 20, 2003 disposing of the applications filed by the petitioners'' father under Sections 17(2) and 17(2A) (a) and (b) of the Act of 1956, the subsequent applications of the petitioners under the same provisions of law was not maintainable is patently erroneous and cannot be sustained. Citing a decision of the Division Bench of this Court in the case of Ram Narayan Mondal v. Maniklal Sadhu and Anr. reported in , AIR 1991 Cal 388, Mr. Chatterjee contended that it is the well settled principle of law that a time fixed by the Court for payment or deposit of money can be subsequently extended. He next contended that the impugned order, so far as the same rejected the application of the petitioners under Section 151 of the Code to permit them to deposit the entire arrear rent is also erroneous.

On the other hand, Mr. Amar Nath Das, the learned advocate appearing for the opposite parties plaintiffs submitted that there is no merit in the present revisional application filed by the petitioners. Relying on the Bench decisions of this Court in the cases of Smt. Chapalabala Dutta v. Arati De reported in , 1989 (1) CLT 330 (HC) and Shyam Sundar Ghosh v. Baidyanath Mondal reported in , 2014(3) CHN (Cal) 33, Mr. Das submitted that it is well settled that once the applications filed by the defendant tenant under Sections 17(2) and 17(2A) (a) and (b) of the Act of 1956, in an eviction suit is decided by the Court on merit, after the death of the original defendant tenant his heirs and legal representatives cannot maintain fresh applications under the same provisions. Mr. Das further submitted that in the present case, the petitioners obtained the said ex parte order dated December 08, 2008 whereby the learned Court below permitted them to deposit the current rent at their own risk and without prejudice to the rights and contentions to the parties and the said order did not confer any right on the petitioners. According to him, when the petitioners'' father himself during his lifetime did not comply with the said order dated September 20, 2003 a right accrued in favour of the opposite parties plaintiffs, under Section 17(3) of the Act of 1956 for striking out the defence of the petitioners, as the defendants in the eviction suit, against delivery of possession and in any event the petitioners filed the application under Section 151 of the Code to deposit all arrear rent for the period commencing from 1973 without any explanation whatsoever either for non payment of the arrear rent or for the delay. Thus, according to him, the learned Court below committed no error in dismissing the said application.

I have considered the facts of the case, as also the rival contentions of both Mr. Chatterjee and Mr. Das, the learned counsel appearing for the respective parties. As discussed above, the petitioners'' father, being the original defendant in the ejectment suit filed applications under Sections 17(2) and 17(2A) (a) and (b) of the Act of 1956 and by the said order dated September 20, 2003, the learned Court below disposed of the said applications. While disposing of the said applications the learned Court below held that the monthly rent payable by the defendant tenant was Rs. 40/- and not Rs. 23/- as claimed by the petitioners'' father. By the said order, the learned Court below further held that the petitioners'' father was a defaulter in payment of rent for 367 months from September, 1973 and directed him to pay to the plaintiffs landlords all arrear rent from March, 1973 upto September, 2003 together with the statutory rate of interest at the rate 8.33 per cent, per annum, amounting to Rs. 16,000/- by 10 (ten) equal monthly instalments of Rs. 16,000/-, commencing from the month of October, 2003 along with current monthly rent of Rs. 40/-. Thus, the said order dated September 20, 2003 passed by the learned Court below was an order on merit upholding the ground of eviction of the defendant tenant, as stated in the plaint filed in the eviction suit that the defendant tenant was a defaulter in payment of rent. It is trite that an issue of fact or law decided even in an interlocutory proceeding, can operate as res judicata at the successive stage of the same suit or proceeding if, the order passed in an interlocutory proceeding impinges upon the legal rights of the parties to the proceeding. An authority for this view can be found in the decision of the Supreme Court in the case of Arjun Singh v. Mahindra Kumar reported in AIR 1964 SC 993. Thus, in the case at hand, in view of the decision of the learned Court below in the said order dated September 20, 2003 deciding the said applications of the petitioners'' father under Sections 17(2) and 17(2A) (a) and (b) of the Act of 1956 respectively on merit, I find that the principle of res judicata as enshrined under Section 11 of the Code is applicable in the present case, and the subsequent the applications of the petitioners under Sections 17(2) and 17(2A) (a) and (b) of the Act of 1956, as the representative of the original defendant in the ejectment suit, was barred by law. For these reasons, I am also in respectful agreement with the ratio of the decisions of this Court in the cases of Chapalabala Dutta and Arati Dutta (supra) and Shyam Sundar Ghosh v. Baidyanath Mondal (supra). Thus, Mr. Das was justified in his submission that the said subsequent applications of the petitioners were not at all maintainable. Therefore, I do not find any infirmity in the impugned order passed by the learned Court below rejecting the applications filed by the petitioners under Sections 17(2) and 17(2A) (a) and (b) of the said Act of 1956.

With regard to challenge of the petitioners against the impugned order rejecting the application under Section 151 of the Code to allow them to pay all arrear rent from the month of March, 1973 to the petitioner, I am unable to accept the contention raised by Mr. Chatterjee. In the facts of the case at hand, the learned Court below has rightly held that a right has accrued in favour of the plaintiffs in the ejectment suit under Section 17(3) of the Act of 1956 for striking out the defence of the defendants petitioners in the suit for delivery of possession. Further, from the facts already discussed it is beyond doubt that the conduct of the petitioners and their father, since deceased, are vitiated by utter negligence. The decision of the Division Bench of this Court in the case of Ram Narayan Mondal (supra) relied by the petitioners, was a case under Section 28 of the Specific Relief Act where the applicant''s decree holder disclosed "sufficient cause" for extension of time to deposit the balance consideration passed by the decree for specific performance and the said decision has no application in the present case. Thus, I do not find any infirmity in the impugned order passed by the learned Court below rejecting the application of the petitioners under Section 151 of the Code.

For all the foregoing reasons, I find no merit in this revisional application. Accordingly, the revisional application being C.O. No. 4359 of 2015 stands rejected.

However, there shall be no order as to costs.

Urgent certified copy of this judgement, if applied for, be supplied to the parties subject to compliance with all requisite formalities.