Tajmul Hossein vs Khoda Nawaj and Others

Ishan Chandra Das, J.—Heard learned Advocate for the parties.

In the instant revisional application, the petitioner being the plaintiff-landlord (hereinafter referred to as the petitioner) has assailed the Order No. 36 dated 6th September, 2013 passed by the learned Judge, 5th Bench, Presidency Small Causes Court, Calcutta in Ejectment Suit No. 232 of 2006.

The opposite parties/defendants No. 1 to 3 (hereinafter referred to as the opposite parties) were inducted as tenants in respect of a shop room referred to in the schedule of the plaint of Ejectment Suit No. 232 of 2006 (page 18 of the petition being Annexure ''P-1'') by one, Dilip Kumar Dutta and two others, who filed the suit for eviction of the opposite parties herein and recovery of Khas possession on the ground of default and reasonable requirement but subsequently, this petitioner, Tajmul Hossein was added as a party to the eviction suit in terms of Order XXII Rule 10 of the Code of Civil Procedure. The opposite parties herein appeared to contest the suit before the learned trial court on 11th October, 2006, filed written statement on 19th April, 2007, issues were framed on 8th February, 2008 and the petitioner herein filed an application for deleting the names of the plaintiffs No. 1 to 3 (i.e. the original plaintiffs) which was allowed by learned trial court on 26th November, 2008. On the selfsame date, the opposite parties herein filed an application under Section 7(1) of the West Bengal Premises Tenancy Act, 1997 praying for permission to make deposit of the admitted rent at the rate of Rs. 60/- per month and it was allowed by the learned court below. Thereafter, the plaint was amended, an application under Order XXXIX Rule 7 of the Code of Civil Procedure was filed, inspection was held on due notice to both the parties but on 23 August, 2012, when the petitioner filed an application under Section 7(3) , the opposite parties herein came up with the petition under Section 7(2) coupled with a copy of the application under Section 5 of the Limitation Act praying for condonation of delay in filing such application under Section 7(2) and against such prayer, the petitioner herein filed written objection before the learned court below. The learned trial court disposed of those applications under Section 151 and under Section 5 of the Limitation Act by Order No. 33 dated 25th April, 2013 and the application under Section 7(2) of the Act of 1997 was then taken up for hearing on the 6th day of September, 2013. After hearing both the parties, learned court below in the order impugned held that the deposit of rent from August, 2007 to October, 2008 were invalid deposits and no deposits were made since March, 2013 to July, 2013 and therefore, he directed the opposite parties to make fresh deposits of the arrears of rent as calculated in the Order No. 36 dated 6th September, 2013 within 30 days from the date of such order.

The averments in paragraph 10 of the revisional application reveals that the opposite parties filed the application under Section 151 of the Code of Civil Procedure praying for disposal of the application under Section 5 of the Limitation Act and prayed for condonation of delay in filing the application under Section 7(2) of the Act and while disposing of the said application by Order No. 33 dated 25th April, 2013, he condoned the delay in filing such application under Section 7(2) with further observation that the opposite parties never deserve favourable order but that application was allowed by the learned court below subject to payment of costs of Rs. 1,500/- payable to the plaintiff/petitioner herein.

The learned Counsel for the petitioner in course of hearing pointed out that the learned court below was not justified in passing the order impugned being Order No. 36 dated 6th September, 2013 treating the application under Section7(2) of the Act to be a valid one though the opposite parties never filed the same in the court at the appropriate stage. To fortify his arguments in this respect, he relied on a decision of this court in the case of Smt. Shibani Rakshit and Others Vs. Krishna Kumar Banerjee, and urged that when the tenant filed no application for determination of rent before the learned trial court, such tenant is not entitled to claim any protection for default in payment of rent to the landlord. Placing reliance on another decision of the Division Bench of this court in the case of M.L. Bajaj Vs. Mustt. Rashika Khatoon, , he further urged that statutory obligation of the tenant was to deposit the admitted amount of rent in court after filing of the suit but failure on his part to comply the same would be fatal for his interest. With reference to a decision of this court in the case of Sharashibala Roy Chowdhury Vs. Jewan Ram Sheoduttaraj, , he also submitted that the tenants having failed to deposit the amount of rent in arrear which was admitted by them to be due, they contravene the provisions of the relevant sections of the Act [here under Section 7(2) of the Act] and opined that their application was not maintainable in law. Further relying on a decision of this court in the case of M/s. Dwarakadas Raghubir Prosad Chowdhury & Ors. reported in 1987 (II) CHN 75, he pointed out that the order passed by the court, if not challenged in time, can be properly dealt with in accordance with law to prevent injustice to any party. Referring to an unreported decision of this court in the case of Sri Lalit Kumar Singh vs. Suresh Mishra & Ors. (C.O. 2133 of 2014), he submitted that the court should deal with an application of any party, if it was otherwise motivated by causing delay in disposal of any litigation.

His learned counterpart, on the other hand, submitted that his clients being the opposite parties/tenants complied with all the provisions of the Statute as framed under Section 7 of the Act. He confidently urged with reference to the decision of a specially formed Bench of this court in the case of Sri Subrata Mukherjee Vs. Smt. Bishakha Das--> and urged that the learned trial court was justified in favourably dealing with the application under Section 7 of the Act. He pointed out that the time limit as mentioned in Sections 7(1) and (2) of the Act can be extended since the time limit is not mandatory. With reference to the provisions of Section 40 of the West Bengal Premises Tenancy Act, he urged that his clients'' application under Section 7(2) of the Act though filed before the learned trial court but it was misplaced and for that reason the application could not be heard and disposed of, rather the petitioner herein taking advantage of missing of such application under Section 7(2) filed the application under Section 7(3) of the Act and prayed for striking out the defence of the tenant against delivery of possession. Further clarifying the provisions of Section 40 of the Act of 1997, he pointed out that the provisions of Limitation Act, 1963 shall apply to the proceedings and appeals under the Act. To fortify his arguments, he once again relied on the decision of a Special Bench of this court in the case of Subrata Mukharjee (supra) and drew my attention to the relevant portions of the judgment quoted below:

"40. In view of the aforesaid discussion, we, therefore, conclude as follows:

The time limit fixed, as mentioned in sub-sections (1) and (2) of section 7 of the 1997 Act to pay or to deposit with the Controller or the Civil Judge all admitted arrears of rent together with interest, as mentioned in clause (b) thereof and consequently, the time limit mentioned for this purpose, as mentioned in sub-section (2) is not inflexible and it can be extended by the Court by virtue of section 5 of the Limitation Act, 1963.

However, the time limit fixed for payment to the landlord, after adjudication of the dispute with regard to the rate of rent with the extended time limit, as mentioned in the proviso of sub-section (2), is inflexible and this cannot be extended by the Court under any circumstances, naturally, provisions of section 5 of the Limitation Act will not be applicable."

Hence, taking into consideration the proposition of law as quoted above, I am of the view that the provisions of Section 7 of the Act of 1997, being a beneficial portion of the legislation, the same cannot be construed in such a manner which would be detrimental to the interests of the tenant.

In the order impugned, learned court below while disposing of the application under Section 7(2) of the Act held that the opposite party was defaulter in payment of rent for the period referred to therein and directed him to make deposit of the same with interest as per Statute once again in the name of the subsequent transferee-landlord upon observation that the deposits in the name of the erstwhile landlord (Dilip Kumar Dutta & Ors.) since August, 2007 to October, 2008 and again since March, 2013 to July, 2013 were not in consonance with the provisions of Section 7(1) of the Act. I find no infirmity in the decision taken by the learned court below.

The learned Counsel for the petitioner in course of hearing drew my attention to the averments as stated in Paragraph 10 of the revisional application and submitted that by Order No. 33 dated 25th April, 2013, learned court below while disposing of the application under Section 151 of the Code of Civil Procedure dated 23rd November, 2012 and Section 5 of the Limitation Act dated 15th March, 2013 condoned the delay in filing the application under Section 7(2) without any legal excuse.

His learned counterpart, on the other hand, submitted that as the cause of action of the present petitioner as the transferee/landlord arose at a subsequent date, he cannot claim such relief for rejecting the prayer of the defendant at this stage.

Taking into consideration the facts and circumstances of the case, I am of the further opinion that this should be treated as a closed chapter since the petitioner never challenged the Order No. 33 dated 25th April, 2013 and that presupposes that he accepted such decision of the court, allowing the petition under Section 151 of the Code of Civil Procedure and Section 5 of the Limitation Act, it cannot be and should not be reopened at this stage.

Learned Counsel for the opposite parties pointed out certain legal infirmities with regard to the maintainability of the suit. Since there is no scope for adjudication of this issue in this revisional proceedings, such issue is kept open and it would be decided by the appropriate court at the appropriate stage.

With the aforesaid observations, this revisional application is dismissed and the order No. 36 dated 6th September, 2013 passed by the learned court below stands affirmed.

I make no order as to costs.

Let urgent xerox certified copy of this order, if applied for, be given to the learned Advocate of the parties on usual undertaking.