Subodh Lal Samaddar vs Swapan Samaddar and Others

Bhaskar Bhattacharya, J.—This revisional application u/s 115 of the CPC is at the instance of a plaintiff-landlord in a suit for eviction and is directed against Order No. 95 dated April 12, 2000 passed by the learned Civil Judge (Junior Division), First Court, Sealdah in Title Suit No. 173 of 1981 thereby dismissing an application u/s 17(3) of the West Bengal Premises Tenancy Act filed by the petitioner and allowing an application u/s 151 of the CPC for permission to deposit all arrears with interest. In the suit filed in the year 1981, the original defendant did not enter appearance. Ultimately, the opposite parties, the heirs of the original defendant entered appearance stating that the original defendant was not traceable and the Court permitted the opposite parties to contest the said suit. It appears from the record that the opposite parties entered appearance in the year 1986 and filed a written statement and in such written statement it was stated that they have filed application u/s 17 (2A) (b) of the West Bengal Premises Tenancy Act. In fact, no such application, however, was filed and the opposite parties also did not comply with the last part of Section 17(1) of the aforesaid Act by depositing an amount equivalent to rent every month within 15th of the month next following.

On the allegation that the opposite parties have not complied with the provisions of contained in Section 17(1), 17(2) or 17(2A) of the Act, the present petitioner filed an application u/s 17(3) of the Act for striking out defence of the opposite parties against delivery of possession. Such application for striking out defence was filed in the year 1986. Ultimately, when the suit was ready for hearing, the opposite parties came up with an application u/s 151 of the CPC on March 14, 2000 for condonation of delay in not complying with the provisions u/s 17(1)(2A) of the Act and prayed for depositing entire amount with interest.

By the order impugned herein, the learned trial Judge has allowed the application u/s 151 of the Code filed by the opposite parties and has consequently dismissed the application u/s 17(3) of the Act.

Being dissatisfied, the landlord has come up in revision.

After hearing Mr. Mukherjee in support of the application and Mr. Haider appearing on behalf of the opposite parties and after going through the materials-on-record, I am of the view that in the facts of the present case, the learned trial Judge acted illegally and with material irregularity in exercising the discretion in favour of the opposite parties.

As mentioned earlier although in the year 1986, the opposite parties entered appearance in the suit, they took a false plea in the written statement that they have filed application u/s 17(2A)(b) of the West Bengal Premises Tenancy Act. They did not care to comply even the last part of Section 17(1) of the Act in course of last 14 years. Moreover, they were aware of the fact that the plaintiff has already filed an application u/s 17(3) of the Act for striking out defence against delivery of possession for non-compliance of the aforesaid provisions of the Act. Notwithstanding such fact, the opposite parties did not care to file any application under, the aforesaid provisions of the Act along with any application u/s 5 of the Limitation Act.

In my view, the inaction on the part of the opposite parties in not complying with the provisions contained in Section 17(1)(2) or (2A) of the Act cannot be condoned.

Mr. Mukherjee in this connection has relief upon a Special Bench decision of this Court in the case of Krishna Gopal Ghosal vs. Mihir Baran Nandy & Ors., reported in 1987(2) Cal LJ 297, wherein Special Bench pointed out the circumstances under which any inaction on the part of the tenant in not complying with the aforesaid provisions of the Act can be condoned. According to the Special Bench whenever a tenant applies for condoning the delay in deposit of rent he must establish that there were extraordinary circumstances which caused the tenant to involuntarily commit a breach of Sub-section (1) of Section 17 of the West Bengal Premises Tenancy Act and to deposit the rent for the month or months in question beyond the prescribed period. When voluntarily and by his own laches a tenant deposits the rent or pays rents beyond the time fixed by Section 17(1) of the said Act, the Court would certainly refuse to exercise its discretion in favour of such a defaulting tenant and would reject his prayer for condonation of delay in making the deposit. In this case the delay was for the last 19 years and the opposite parties came up with the application at the time of peremptory hearing of the suit. Therefore, in exercising discretion in favour of the tenant, the learned trial Judge did not follow the principles laid down by the Special Bench in the aforesaid decision. Thus, the order impugned cannot be sustained and is liable to be set aside. The application filed by the tenant u/s 151 of the Code is dismissed and the tenant undisputedly not having filed any application u/s 17(1), 17(2) or 17(2A) of the Act, the application filed by the landlord u/s 17(3) thereof should be allowed. The learned trial Judge is directed to strike out the defence of the opposite parties against delivery of possession,

With the above observation, the revisional application is allowed. There will be no order as to costs. If xerox certified copy of the order is applied for, the office will supply the same within a week from the date of application.