Sudha Rani Roy and Others vs Gopal Krishna Daw and Others

Jyotirmay Bhattacharya, J.—This Second Appeal is directed against the judgment and decree dated 17th September, 1985 passed by the learned Additional District Judge, 9th Court at Alipore in T.A. No. 398 of 1984, affirming the judgment and decree dated 29th March, 1984 passed by the learned Munsif, 1st Additional Court at Alipore in T.S. No. 52 of 1983, at the instance of the defendant/appellant.

A suit for eviction was filed by the plaintiff/respondent herein for eviction of the defendant/appellant from the suit premises on the ground of default in payment of rent since November, 1972. A notice to quit dated 24th November, 1976 was served upon the defendant/appellant requesting him to vacate the suit premises on the expiry of the month of December, 1976 as he committed default in payment of rent since November, 1972. The said notice was duly served upon the defendant/appellant on 28th November, 1976, but since the defendant/appellant failed and/or refused to deliver vacant and peaceful possession of the suit premises to the plaintiff/respondent, the plaintiff/respondent filed the aforesaid suit for eviction against the defendant/appellant.

The defendant/appellant filed a written statement in the said suit by denying the allegations made out by the plaintiff in the plaint of the said suit.

In such a suit the defendant filed a combined application u/s 17(2) and Section 17(2A) of the West Bengal Premises Tenancy Act inter alia praying for determination of arrear rent, if there be any, so that he can deposit the calculated amount of arrear rent within the time to be fixed by the Court. In the said application, not only the relationship of landlord and tenant between the parties was denied but also the allegation regarding default in payment of rent was also denied by the defendant/appellant.

The said application which was filed on 13th March, 1978 was ultimately rejected by the learned Trial Judge by holding inter alia that the said application was barred by limitation. The learned Trial Judge found that the defendant refused to accept the writ of summons of the said suit which was tendered to him by registered post. The said service upon the defendant/appellant was accepted as ''good service'' and the satisfaction of the Court regarding due service of the writ of summons upon the defendant was recorded in the order being No. 10 dated 4th October, 1977. Since the defendant disputed due service of summons upon him by alleging that the copy of the plaint was not sent to him along with the summons, the learned Trial Judge personally opened the returned envelop and found that the returned postal envelop contained complete summons together with the copy of the plaint. As such, the learned Trial Judge disbelieved the defendant''s claim regarding non-service of plaint upon him. Since the said application u/s 17(2) and 17(2A) of the said Act was filed beyond the prescribed period of limitation, the said application was rejected on contest as barred by limitation.

The defendant/appellant challenged the said order in revision before this Hon''ble Court but the said revisional application was also rejected on contest by this Hon''ble Court by affirming the findings of the learned Trial Judge on the point of limitation.

Thereafter, the plaintiff/respondent filed an application u/s 17(3) of the said Act inter alia praying for striking out the defence of the defendant for non-compliance of the provision contained in Section 17(1) of the said Act regarding deposit of arrear rent and/or current monthly rent. Immediately thereafter, the defendant/appellant filed an application u/s 151 of the CPC seeking permission from the learned Trial judge for allowing him to deposit the entire arrear rent by installment. Such application having being rejected by the learned Trial Judge on 19.6.1983 vide Order No. 58, the defendant/appellant prayed for time for challenging the said order in revision before this Hon''ble Court. But ultimately he did not challenge the said order before any higher forum though time was granted to him by the learned Trial Judge for the aforesaid purpose.

Ultimately the plaintiff''s application for striking out the defence was taken up for hearing and the defence of the defendant in the said suit was struck out by the learned Trial Judge as he did not comply with the provision contained in Section 17(1) of the said Act.

The defendant challenged the said order in revision before this Hon''ble Court but failed to succeed therein. In this background, the hearing of the suit was taken up by the learned Trial Judge and a decree for eviction was passed against the defendant therein by holding inter alia that the defendant is still a defaulter as alleged and the ground of default still exists. The learned Trial Judge also held that the ejectment notice dated 24th November, 1976 was duly served upon the defendant on 28th November, 1976. The learned Trial Judge further found from the said notice that the defendant was called upon to vacate the suit premises on the expiry of November, 1976. The learned Trial Judge, thus, held that the ejectment notice is legal, valid and sufficient.

Being aggrieved by and dissatisfied with the said judgment and decree, the defendant/appellant preferred an appeal being T.A. No. 398 of 1984 before the Court of the learned Additional District Judge, 9th Court at Alipore, but the said appeal was also dismissed on contest by affirming the judgment and decree of the learned Trial Judge.

Incidentally, it may be mentioned that the interlocutory order passed by the learned Trial Judge on the defendant''s application u/s 17(2) of the said Act as well as the order passed on plaintiff''s application u/s 17(3) of the said Act were challenged in the said appeal but since the learned First Appellate Court also did not find any substance in the challenge of the defendant, the learned First Appellate Court refused to interfere with the said orders.

The learned First Appellate Court also did not find any substance in the contention of the defendant regarding invalidity of the ejectment notice. The learned First Appellate Court held that though the date on which such service was accepted by the addressee was not mentioned by him on the returned postal acknowledgement card but the month in which such service was made, as mentioned in the postal seal affixed on the acknowledgement card, shows that the said notice was served sometime in November, 1976. With the aforesaid findings, the appeal was dismissed by the learned First Appellate Court.

The instant Second Appeal is directed against the said judgment and decree of the learned First Appellate Court.

This Second Appeal was admitted for hearing by the Division Bench of this Hon''ble Court under the provision of Order 41 Rule 11 of the Code of Civil Procedure. While admitting the said appeal, the Hon''ble Division Bench held that this appeal will be heard on all the grounds taken in the memorandum of appeal.

On perusal of the said memorandum of appeal, this Court finds that the following grounds were taken by the appellant in the said memorandum of appeal:

I. For that having failed to apply proper legal tests, the Courts below erred in law in passing a decree of ejectment on the ground of default within the meaning of Clause (i) of Sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act, 1956.

II. For that the Courts below erred in law in not granting the protection available to a premises tenant under the law.

III. For that the Courts below erred in law in not holding that no notice of ejectment within the scope of Section 13(6) of the West Bengal Premises Tenancy Act was served upon the defendant/appellant.

IV. For that the Courts below erred in law in rejecting the tenant/defendant''s application u/s 17(2) and 17(2A) of the West Bengal Premises Tenancy Act as barred by Limitation.

V. For that the Courts below erred in law in striking out the defence of the tenant/defendant u/s 17(3) of the West Bengal Premises Tenancy Act.

VI. For that in any view of the matter the Courts below erred in law in not extending the protection of law to the tenant/defendant against eviction by giving him an opportunity to pay and/or deposit the amount of arrear rent.

Accordingly, the appeal was heard on the above grounds. Mr. Bagchi, learned Advocate, appearing for the appellant submits that even though a combined application u/s 17(2) and 17(2A) of the said Act was filed by the defendant and the application u/s 17(2) of the said Act was barred by limitation, but, still then, the learned Courts below ought not to have refused to grant the relief u/s 17(2A) to the defendant as the provision u/s 17(2A) which starts with a non obstante clause, is an independent provision and as such, according to Mr. Bagchi even though the relief u/s 17(2) could not be granted because of bar of limitation but, still then, the relief for the payment of the arrear rent by installment u/s 17(2A) of the said Act, could have been granted to the defendant. In support of such submission Mr. Bagchi relied upon a decision of this Hon''ble Court in the case of Radhesham Saha v. Ramanimohan Chakraborty reported in 87 CWN 868.

Mr. Bagchi, thus, submitted that had such an opportunity been given to the petitioner, the petitioner could have deposited the entire arrear rent by installment as per the provision contained in Section 17(2A) of the said Act and thus the eviction on the ground of default could have been avoided by payment of the arrear rent by the defendant.

Mr. Bagchi, thus, submitted that the entire trial of the suit and/or First Appeal before the Courts below was vitiated as the decree for eviction was passed by the learned Trial Judge and the same was also maintained by the First Appellate Court without affording the relief u/s 17(2A) of the said Act to the defendant.

Mr. Bagchi further submitted that even the ejectment notice which was allegedly served upon the defendant was invalid as the plaintiff has failed to prove that one month''s notice expiring with the month of tenancy as contemplated u/s 13(6) of the said Act was served upon the defendant. By referring to the acknowledgment card Mr. Bagchi submitted that since date of receipt of the letter was not mentioned by the addressee in the said acknowledgement card, no definite conclusion can be arrived at regarding the actual date when such notice was served upon the defendant.

By referring to the evidence of the plaintiff Mr. Bagchi pointed out that even the plaintiff did not mention in his evidence any specific date when such ejectment notice was served upon the defendant.

Mr. Bagchi submitted that since notice is the foundation of the suit, such suit ought to have been dismissed for want for proof of due service of sufficient notice upon the defendant.

Mr. Banerjee, learned Advocate, appearing for the respondent refuted such submission of Mr. Bagchi by submitting that there is hardly any scope for interference with the concurrent findings of fact of the Courts below on the issue regarding service of ejectment notice upon the defendant, in the Second Appeal u/s 100 of the Code of Civil Procedure.

Mr. Banerjee further submitted that since the defendant''s combined application u/s 17(2) and 17(2A) was barred by limitation, the defendant is neither entitled to get the benefit u/s 17(2) of the said Act nor he is entitled to get any benefit u/s 17(2A) of the said Act. Accordingly, Mr. Banerjee submitted that the Courts below did not commit any illegality in refusing to grant any relief u/s 17(2A) of the said Act.

Mr. Banerjee, thus, supported the judgments and decrees of both the Courts below.

Let me now consider the first contention of Mr. Bagchi regarding the scope and/or ambit of Section 17(2A) of the said Act.

For proper appreciation of the scope and/or ambit of Section 17(2A) of the said Act, the provisions contained in Section 17(1), Section 17(2), Section 17(2A) and Section 17(2B) of the said Act are set out hereunder:

17(1) - On a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 13, the tenant shall, subject to the provisions of Sub-section (2), within one month of the service of the writ of summons on him or where he appears in the suit or proceeding without the writ of summons being served on him, within one month of his appearance deposit in Court or with the Controller or pay to the landlord an amount calculated at the rate of rent at which it was last paid, the for period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of eight and one-third per cent per annum from the date when any such amount was payable upto the date of deposit, and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate.

17(2) - if in any suit or proceeding referred to in Sub-section (1) there is any dispute to the amount of rent payable by the tenant, the tenant shall, within the time specified in Sub-section (1), deposit in Court the amount admitted by him to be due from hi together with an application to the Court for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. On receipt of such application, the Court shall:

(a) having regard to the rate at which rent was last paid, and the period for which default may have been made, by the tenant, make, as soon as possible within a period not exceeding one year, a preliminary order, pending final decision of the dispute, specifying the amount, if any, due from the tenant and thereupon the tenant shall, within one month of the date of such preliminary order, deposit in Court or pay to the landlord the amount so specified in the preliminary order; and

(b) having regard to the provisions of this Act, make, as soon after the preliminary order as possible, a final order determining the rate of rent and the amount to be deposited in Court or paid to the landlord and entire fixing the time within which the amount shall be deposited or paid or, as the case may be; directing that the amount already deposited or paid be adjusted in such manner and within such time as may be specified in the order.

(2A) Notwithstanding anything contained in Sub-section (1) or Sub-section (2), on the application of the tenant, the Court may, by order,:

(a) extend the time specified in Sub-section (1) or Sub-section (2) for the deposit or payment of any amount referred to therein;

(b) having regard to the circumstances of the tenant as also of the landlord and the total sum-inclusive of interest required to be deposited or paid under Sub-section (1) on account of default in the payment of rent, permit the tenant to deposit or pay such sum in such installments and by such dates as the Court may fix:

Provided that where payment is permitted by installments, such sum shall include all amounts calculated at the rate of rent for the period of default including the period subsequent thereto upto the end of the month previous to that in which the order under this sub-section is to be made with interest on any such amount calculated at the rate specified in subsection

(1) from the date when such amount was payable upto the date of such order.

(2B) No application for extension of time for the deposit or payment of any amount under Clause (a) of Sub-section (2A) shall be entertained unless it is made before the expiry of the time specified therefore in Sub-section (1) or Sub-section (2), and no application for permission to pay in installment under Clause (b) of Sub-section (2A) shall be entertained unless it is made before the expiry of the time specified in Sub-section (1) for the deposit or payment of the amount due on account of default in the payment of rent.

On careful perusal of the aforesaid provisions, this Court has no hesitation to hold that in view of the opening words i.e. non obstante clause set out in Section 17(2A) of the said Act, it has overriding effect over the provision contained in Section 17(1) and Section 17(2) of the said Act, but even then in order to get the benefit of the said Section 17(2A) of the said Act, the defendant must file such an application within the time as prescribed in Section 17(2B) of the said Act.

Section 17(2B) of the said Act provides that no application for extension of time for the deposit or payment of any amount under Clause (a) of Sub-section (2A) of Section 17 of the said Act shall be entertained unless it is made before the expiry of the time specified therefore in Sub-section (1) or Sub-section (2) of Section 17 of the said Act, and no application for permission to pay installment under Clause (b) of Sub-section (2A) of Section 17 of the said Act shall be entertained unless it is made before the expiry of the time specified in Sub-section (1) of Section 17 of the said Act for the deposit or payment of the amount due on account of default in the payment of rent.

In fact, it was laid down in the decision of Radhesham Saha v. Ramanimohan Chakraborty (supra) cited by Mr. Bagchi that in order to get the benefit u/s 17(2A), the defendant must apply within the time prescribed u/s 17(2B).

No doubt Section 17(2A) is an independent provision which has an overriding effect because of the non obstante clause in the beginning of the provision and thus, it cannot be disputed that the provision u/s 17(2A) will prevail over Section 17(1) and 17(2) of the said Act, but, still then, for availing of the said benefit the defendant must file such application within the time as prescribed in Section 17(2B) of the said Act. The learned Trial Judge recorded in its order being No. 10 dated 4th October, 1977 that the writ of summons of the said suit was duly served upon the defendant. The instant application u/s 17(2A) of the said Act was filed on 13th March, 1978. As such, this Court has no hesitation to hold that even the application u/s 17(2A) was barred by limitation and, thus, the defendant cannot claim any benefit under the said Act.

With regard to the other contention of Mr. Bagchi regarding validity of the ejectment notice, this Court on examination of the returned acknowledgment card finds that though the date of receipt of the ejectment notice was not mentioned by the addressee on the acknowledgment card but from the postal seal affixed thereon, this Court finds that the date of service is not distinctly mentioned therein, but the month and year of such service is visible though faintly. From the postal seal this Court finds that the said service was effected within the month of November, 1976. By the said notice the defendant was called upon to vacate the suit premises with the expiry of the month of December, 1976.

Accordingly, this Court holds that the ejectment notice is good, legal, sufficient and valid.

Mr. Bagchi ultimately submitted that neither the learned Trial Judge, while passing the decree of eviction in the suit, recorded its satisfaction with regard to the ground of default in payment of rent, nor the First Appellate Court, while disposing of the appeal, found the defendant/appellant was a defaulter in payment of rent. According to Mr. Bagchi, such a decree for eviction which was passed without recording satisfaction of the Court regarding existence of any of the grounds u/s 13(1) of the said Act, cannot be retained on record. This Court, however, does not find any substance in such submission of Mr. Bagchi, as I have already pointed out that the learned Trial Judge, while passing the decree for eviction held that the ground of default still exists. That apart, even assuming that no specific finding on the ground of default was arrived at by the Courts below, but, still then, this Court, being a Court of appeal can come to a definite finding on this score after examining the materials on record.

On examination of Lower Court records, this Court finds that the defendant, himself in his application u/s 151 of the CPC filed on 29th June, 1983, admitted that he started depositing the current rent since the time of his appearance in the suit. He appeared in the suit sometime in March, 1978 and started depositing rent in Court since March, 1978. Rent for the month of March, 1978, was deposited on 13th April, 1978. In the said application, the defendant also prayed for permission for depositing of the arrear rent together with interest on condonation of delay. The said application was rejected on contest. The defendant did neither challenge the said order in any higher forum, nor deposited the arrear rent.

Mr. Bagchi, submitted that in compliance of the order passed by this Hon''ble Court staying the execution case, the defendant deposited the arrear rent in the Trial Court on 22.9.1998.

Since such deposit cannot be regarded as a deposit in compliance of the provision of Section 17(1) of the said Act, the Court holds that the defendant is not entitled to get benefit of Section 17(4) of the said Act.

The defendant has not produced any material to show that the defendant was not a defaulter for any pre-suit period since November, 1972. Accordingly, this Court holds that the defendant is a defaulter in payment of rent since November, 1972 and as such, this Court does not find any justification to interfere with the impugned judgment and/or decree.

Re : CAN 6254 of 2008

In this application, the appellant has prayed for permission of this Court to bring subsequent events on record by way of additional evidence. The appellants stated therein that the plaintiff/respondent has transferred the suit premises to some named purchasers for development of the suit property. In my view, such facts are not at all relevant for consideration of this appeal as this appeal arises out of a suit for eviction on the ground of default.

Such an appeal even could have been continued by the transferee landlords. Had it been a suit for eviction on the ground of reasonable requirement, such facts would have been relevant; firstly for the reason that such a suit could not be continued by the transferee landlord because of the bar created u/s 13(3A) of the said Act and secondly for the reason that even after the expiry of the statutory period, the transferee landlord could not claim any decree for eviction on the ground of reasonable requirement of the erstwhile landlord. That apart, here transfer of the suit property was disputed by the respondent in his affidavit and no material has been placed by the appellant to prove that such transfer, in fact, was effected. Accordingly, the applicant''s application under Order 41 Rule 27 of the CPC stands rejected.

Conclusion:

This Court, thus, does not find any merit in this appeal. In fact, this Court does not find involvement of any substantial question of law in this appeal. This appeal, thus, stands dismissed on contest without cost. The judgment and decrees of the Courts below stand affirmed.

The defendant/appellant is granted two months time for delivering vacant and khas possession of the suit premises to the plaintiff/respondent. In default, the plaintiff/respondent may recover the vacant and khas possession of the suit premises from the defendant/appellant in execution of this decree. Urgent xerox certified copy of this judgment, if applied for, be supplied expeditiously after complying with formalities.