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2001 DIGILAW 622 (CAL)

Harbhajan Singh Sole v. Shankar Choudhury

2001-09-24

Prabir Kumar Samanta

body2001
JUDGMENT Prabir Kumar Samanta, J.: A short but important question has come up for consideration in this revisional-application. The landlord/plaintiff has filed this revisional application challenging the order whereby the order for striking out the defence of the tenant/defendant under section 17(3) of the West Bengal Premises Tenancy Act, 1956 (hereinafter called as the said Act) was recalled. The said impugned order was made on an application filed by the tenant/defendant under section 151 of the Code read with section 5 of the Limitation Act. In the said petition the order made for striking out of the defence of the tenant/defendant in the suit was sought to be reviewed upon deposit of rents for the months which were admittedly not deposited in compliance with the provisions of sections 17(1) and (2A) of the said Act. Such deposit was made only after the order for striking out of the defence was made. 2. Therefore the questions, whether a tenant defendant will be entitled to the benefit of such deposit which was made after the striking out of his defence in the suit, or in the alternative whether such deposit should be treated as a valid deposit in the eye of law so as to enable the court to recall it's order for striking out the defence on the basis thereof, became important. 3. The facts which transpired from the records of this case may be summarised as under: 4. In the suit for ejectment filed by the plaintiff/landlord the tenant/defendant filed an application under sections 17(2) and 17(2A) of the said Act disputing the relationship of landlord and tenant between the parties, the rate of rent and the period of default. The said petitioner was disposed of on contest by an order dated 24.4.1996 with the finding that the tenant/defendant defaulted in payment of rents from July, 1982 till that date. The learned court found the arrears of rent at Rs. 410401- along with interest thereon @ Rs. 8.33%. The tenant/defendant was accordingly directed to deposit Rs. 41040/- together with interest @ Rs. 8.33% at a monthly instalment of Rs. 5000/-. The defendant was also directed to go on depositing an amount equivalent to monthly rental within 15th of each month. First of such payment was directed to be made by May, 1996. The rate of rent was found as Rs. 285/- per month. 41040/- together with interest @ Rs. 8.33% at a monthly instalment of Rs. 5000/-. The defendant was also directed to go on depositing an amount equivalent to monthly rental within 15th of each month. First of such payment was directed to be made by May, 1996. The rate of rent was found as Rs. 285/- per month. The said order dated 24th of April, 1996 was affirmed by the learned Additional District Judge, Alipore in Civil Revision Case No. 277 of 1996 that arose out of an application filed by the tenant/defendant under section 115A of the Code. The said order was further affirmed by this court by it's order dated 4th December, 1996 made in Civil Order No. 2976 of 1996. Thus, in view of the disposal of the said petition under sections 17(2) and 17(2A) of the Act as above by the said order dated 24th of April, 1996 the tenant/defendant was under obligation to deposit and/or to pay to the plaintiff/landlord current monthly rental under section 17(1) of the said Act since May, 1996 inasmuch as the said order of disposal took into account all arrears of rent till the said date of disposal. The tenant/defendant however, started depositing current monthly rental only from the month of November, 1996. Therefore, he did not pay current monthly rentals for the months from May, 1996 to October, 1996 in compliance with the provisions of section 17(1) of the said Act. In these state of things, the plaintiff/petitioner filed an application under section 17(3) of the said Act for striking out the defence of the tenant/defendant on the ground that he failed to pay the current monthly rental in compliance with the provision of section 17(1) of the said Act as also the arrears of rent pursuant to the said order of disposal dated 24.4.1996. The learned Trial Court however, held that the tenant/defendant had paid the arrears of rent for the period from July, 1982 to April, 1996 amounting to Rs. 41040/- as determined by the court together with statutory interest thereon and therefore, was not a defaulter at all so far as the arrears of rent were concerned. The learned Trial Court however, held that the tenant/defendant had paid the arrears of rent for the period from July, 1982 to April, 1996 amounting to Rs. 41040/- as determined by the court together with statutory interest thereon and therefore, was not a defaulter at all so far as the arrears of rent were concerned. But since current monthly rentals were not deposited month by month for the months from May, 1996 to October, 1996 in compliance with the provisions of section 17(1) of the said Act so the defence was struck out by an order dated 23.2.1998. The tenant/defendant thereafter on 20th March, 1998 deposited an amount being the arrears of rent for the period from the months of May, 1996 till October, 1996 with interst calculated thereon. On the self same date an application under section 5 of the Limitation Act read with section 151 of the Code of was filed for condonation of delay in depositing the said rentals. It may be stated herewith that in the said rentals. It may be stated herewith that in the said petition there was however no prayer for reviewing and/or for recalling the said order for striking out the defence of the tenant/ defendant. The learned Trial Court however, upon consideration of the facts and circumstances of this case recalled the said order by the impugned order dated 5.3.1999 which has been impugned in this revisional application by the plaintiff/landlord. 5. Mr. Asis Bagchi, learned advocate appearing on behalf of the landlord! petitioner assailed the said impugned order by contending that the tenant/opposite party was not entitled to the benefit of any extension of time for depositing current rents after his defence was struck out and that too when his such application was not at all a bona fide one. In support of his contention Mr. Bagchi referred to a Single Bench decision of this court reported in Indian Law Reports (II) Calcutta, 145 (Sonodyne Television Co. Ltd. vs. Maduri Subrammoniya Srinivasan) whereby the order for striking out of the defence of the tenant was affirmed as the court did not find sufficient reason to accept the two delayed deposits as valid deposits for current months following the order of disposal of the petition under section 17(2), (2A), (2B) of the said Act. 6. Mr. Ltd. vs. Maduri Subrammoniya Srinivasan) whereby the order for striking out of the defence of the tenant was affirmed as the court did not find sufficient reason to accept the two delayed deposits as valid deposits for current months following the order of disposal of the petition under section 17(2), (2A), (2B) of the said Act. 6. Mr. Sadananda Ganguly, learned advocate appearing on behalf of the tenant/opposite party strenuously argued in support of the impugned order. The main thrust of his argument was that the striking out of the defence of the tenant in a suit for eviction in exercise of the tenant in a suit for eviction in exercise of power under the provisions of the said Act is not mandatory in all cases where ever there is default or a delayed deposit. On the contrary where deposits have already been made there the court should exercise his discretion by taking into account the facts and circumstances under which such delayed deposits were made and thereby should not make any order for striking out the defence. 7. Mr. Ganguly to substantiate his argument referred to the following decisions: All India Reporter 1989 Supreme Court 291 (Manmohan Kaur vs. Surya Kant Bhagwani); 1987 (1) Calcutta Law Journal 479 (M/s. Dwarkadas Raghubir Prasad Chowdhury & Anr.); 1987 (2) Calcutta Law Journal 510 (In Re: Sadhu Chowdhury); Calcutta Law Times 1988 (1) H.C. 139 (Gopal Shaw vs. Kanailal Pakhira) and 1998 (2) Calcutta High Court Notes 213 (Pasupati NathAuddya vs. Shiba Ch. Dhar). 8. The Supreme Court in the case of Manmohan Kaur (supra) which was under Bihar Buildings (Lease, Rent and Eviction) Control Act held that the court must from a proper perspective judge the question whether the delay or failure to deposit the rent in terms of order under section 13 of the said Act has been properly explained. If that delay has been properly explained then the court has a discretion to execuse the delay but if the delay has not been properly explained then the court has no discretion. In the facts of that case it was found that there was a genuine mistake in failure to deposit the rent for two months under the mistaken believe that the rent for those two months had been deposited. The challans for subsequent period were passed without any objection. In the facts of that case it was found that there was a genuine mistake in failure to deposit the rent for two months under the mistaken believe that the rent for those two months had been deposited. The challans for subsequent period were passed without any objection. Accordingly, it was held that the delay having been properly explained and the rent having been paid subsequently the defence could not be struck off. A Single Bench of this court in the case of Dwarkadas Prosad Chowdhury (supra) held that the delay in making deposit of arrears of amount under the first part of section 17(1) or under section 17(2) as well as in paying the instalments under section 17(2) as well as in paying the instalments under section 17(2A) (b) or in depositing the current rent under the second part of section 17(1), however, can be condoned under section 5 of the Limitation Act by extending the time, provided sufficient grounds are made out in the application for condoriation of such delay. The same learned Judge in the case of Sadhu Chowdhury (supra) held that a court should take a pragmatic view of the matter while considering the application under section 17(3) of the Act about the deposits made by the tenant instead of being too technical. It was observed that the court should not make any dogmatic approach to frustrate the intent and purpose of a beneficial legislation aimed mainly for giving benefits to the tenants. In that case, some deposits of instalments following the order of the court were made in advance and the third instalment which was to be deposited by 15th of October, 1984 was deposited on 27th October, 1984 as the court remained closed in that particular year for Puja Vacation upto 26th October, 1984 and reponed on 27th October, 1984. In that context, it was held as above. In the case of Gopal Shaw (supra) the rents for the months of March and April, 1982 were deposited with the Rent Controller on 11th June, 1982. The plaintiff/landlord filed an application under section 17(3) of the Act for striking out the defence of the tenant/defendant for such belated invalid deposit. In that context, it was held as above. In the case of Gopal Shaw (supra) the rents for the months of March and April, 1982 were deposited with the Rent Controller on 11th June, 1982. The plaintiff/landlord filed an application under section 17(3) of the Act for striking out the defence of the tenant/defendant for such belated invalid deposit. On behalf of the tenant an application with a prayer for treating the application under section 17(1) of the Act as one under sections 17(2) and (2A) of the Act and for extending the period for deposit was preferred. The learned Trial Court by an order dismissed the application filed by the tenant/defendant and allowed the petition filed by the plaintiff/landlord under section 17(3) of the Act. In that context, it was held that where the application by the tenant/defendant substantially contained all the averments necessary to sustain his prayer for extension of time to deposit in terms of section 17(2A) (a) of the Act and for condonation of delay in making such an application, mere technical defect of the application not being in proper form or not having contained appropriate prayer should not expose the tenant to the penalty of his defence being struck out where admittedly the fact was that there had been no remissness or negligence on his part. It did not appear from the said decision that there had been an earlier order of disposal of the petition under sections 17(2) and 2A (a) or (b) of the Act. In the case of Pasupati Nath Auddya(supra) a Single Bench of this court held that a deposit, as contemplated under section 17(1) of the Act if made out of time, such delay may be condoned by the court if sufficient cause is made out for such delay and if such delayed deposit is accompanied by an application for condonation of delay, irrespective of the form of the application, be it either under section 151 of the Code or under section 5 of the Limitation Act. The court has the discretion to condone the default and to extend the time for making the deposit as the case may require. The court has the discretion to condone the default and to extend the time for making the deposit as the case may require. In that case such an application under section 151 of the Code was made by depositing rents from the months since March, 1993 till April, 1996 with statutory interest thereon at one time while there was no previous application under sections 17(1), 17(2) or 17(2A) (a) and (b) of the Act. 9. None of the aforesaid decisions as cited on behalf of the tenant/opposite party contemplated acceptance of delayed deposits of current monthly rentals either in exercise of power under section 151 of the Code or under section 5 of the Limitation Act, after the defence was struck off in exercise of power under section 17(3) of the Act. From the reading of the aforesaid decisions it emerged that when an application was made bona fide disclosing sufficient grounds for which the deposits following the disposal of the petition under sections 17(2), (2A) (a) and (b) of the Act or for current months could not be made within the stipulated time then the court should exercise its discretion for acceptance of the same upon consideration of the facts and circumstances of the case and such discretion should be exercised on the grounds being shown thereto irrespective of the form of the application made therefor. All those decisions spoke about such considerations for the purpose of striking out the defence of the tenant/defendant. All those decisions did nowhere prescribe specifically that where deposits were made after the defence was struck out upon contested hearing then also it would be under obligation to review and/or recall the order made for striking out the defence of the tenant in the suit whenever the application would be made for acceptance of such deposits which were made subsequent to the order of striking out the defence. 10. The substance of the scheme as framed under section 17 of the Act requires the tenant to deposit current monthly rentals in court and/or to pay to the landlord upon his appearance in the suit under the provisions of sub-section (1) of the said section. 10. The substance of the scheme as framed under section 17 of the Act requires the tenant to deposit current monthly rentals in court and/or to pay to the landlord upon his appearance in the suit under the provisions of sub-section (1) of the said section. Under sub-section (2) of the said section the tenant/defendant upon his such appearance may raise a dispute either as to the relationship of landlord and tenant between the parties or to the rate of rent or to the period of default or both. If he raises a dispute, then he may not deposit the current monthly rentals upon his appearance in the suit under sub-section (1) of the said section. Because the tenant upon resolve of the dispute as above may pray for extension of time to deposit the arrears if there be any or by way of instalments. Once such disputes are resolved finally the tenant is under obligation to deposit current monthly rentals month by month as determined by the court and the arrears of rent as determined by the court in the manner and mode as may be directed by the court upon such determination. Following such determination if the tenant fails to deposit any of the amounts as above then his defence in the suit will be struck off under sub-section (3) of the said section. 11. It has been held by various decisions of this court that following such determination if there be any default and/or delayed deposit either in respect of arrears or current monthly rentals then also the tenant/defendant may seek redressal by making deposits thereof for the purpose of acceptance of the same. Such redressal can also be sought for even at the stage of hearing of the matter relating to the striking out of the defence in the suit. The court, in such circumstances also will exercise it's discretion upon consideration of the facts and circumstances for which there were delayed deposits and is empowered to accept such deposits and thereby not to strike out the defence where ever there were delayed deposits. The court, in such circumstances also will exercise it's discretion upon consideration of the facts and circumstances for which there were delayed deposits and is empowered to accept such deposits and thereby not to strike out the defence where ever there were delayed deposits. This position in law could be reconciled on the reasonings that though the court has no power to extend the time for the second time to make deposit of either current or arrear rents once such extension has been made in the exercise of the power under sections 17(2), (2A) (a) and (b) of the Act but if a deposit is made beyond any extended period granted by the court or under section 17(1) of the said Act then the court may accept such deposit upon consideration of the relevant facts and circumstances thereto in exercise of it's inherent power or by condoning the delay in making such deposit. All such considerations for acceptance of delayed deposits become relevant and necessary for the purpose of consideration whether defence should be struck out or not in the suit in the exercise of power under section 17(3) of the Act. But once the defence is struck out in the suit and such striking out of the defence is not found to be at fault and where the tenant/defendant even at the stage of hearing of the matter relating to the striking out of the defence in the suit did not approach the court either for making the deposits for which he was defaulter following determination made by the court or for acceptance of the delayed deposits if any in the meantime then the tenant would not be entitled to the benefit of the deposits made thereafter in respect of the periods prior to the order made for striking out the defence in the suit. The court having been empowered to condone the delay in making deposits and/or to accept the invalid deposits as valid deposits upon consideration of the facts and circumstances thereof at the hearing of the petition under section 17(3) of the Act, it can be said that the court will also be entitled to direct the tenant to make deposits which were not made following the determination by the court, provided that there was some bona fide mistake on the part of the tenant for not making deposits in compliance with the order of the court or where there was default under circumstances beyond control of the tenant. Once upon consideration of all the facts and circumstances if the defence is struck out and the same is made final, then there would be no further scope for recalling and/or reviewing the same on the strength of deposits made after the defence was struck out in the suit for the period prior to such striking out. Because, otherwise, the provisions for striking out the defence in the suit under section 17(3) of the Act would be nugatory in as much as the striking out of the defence in the suit would be meaningless as the tenant would be entitled to make deposit anytime after the order for striking out of the defence was made final and accordingly be entitled to get the order for striking out of the defence recalled and/or set aside. If such a position in law is conceived of, then the finality of the order resulting in striking out the defence may not be possibly arrived at any time in the suit. I am therefore, of the opinion that the tenant/ defendant will not be entitled to the benefit whatsoever of the deposits so made, after the order striking out of his defence was made in the suit, for the periods peri or to the order so made. 12. In this case current rents for the months from May, 1996 till October, 1996 in compliance with the provisions of section 17(1) of the Act following the disposal of the petition under sections 17(2), (2A) of the Act were not deposited by the tenant. Following such disposal, the deposit of current rents month by month is statutory obligation. 12. In this case current rents for the months from May, 1996 till October, 1996 in compliance with the provisions of section 17(1) of the Act following the disposal of the petition under sections 17(2), (2A) of the Act were not deposited by the tenant. Following such disposal, the deposit of current rents month by month is statutory obligation. There was no reason for not making monthly deposits of current rent for the aforesaid months in compliance with the provisions of section 17(1) of the Act following disposal of the petition under sections 17(2), (2A) of the Act. The tenant/defendant knowing fully well that he had not deposited current rents for the aforesaid months without any sufficient reason, also did not act bona fide by filing a petition at the hearing of the petition under section 17(3) by stating that he may be permitted to deposit the amount that may be found due from him or by depositing the same during the pendency of hearing of the said petition under section 17(3). The order striking out the defence was thus made final. 13. That apart, in the petition under section 5 of the Limitation Act no cogent reason was disclosed as to why the deposits for the months from May, 1996 to October, 1996 in compliance with the provisions of section 17(1) of the Act were not made following the disposal of the petition under sections 17(2) and (2A) of the Act nor any reason was disclosed as to why the deposits for the said months were not sought to be made upon receipt of the notice of the application filed by the landlord/plaintiff under section 17(3) of the Act or any time before the order so made in the said petition under section 17(3) of the Act by the Trial Court. Thus, on the principles enunciated by the decisions as aforesaid, it cannot also be said that there was sufficient and proper explanation as to why the deposits for the months from May, 1996 to October, 1996 were not made following the order of disposal of the petition under sections 17(2), (2A) of the Act or at any time before the disposal of the petition under section 17(3) of the Act. Accordingly, the court did not have any material whatsoever to exercise its discretion in favour of the tenant/defendant. 14. Accordingly, the court did not have any material whatsoever to exercise its discretion in favour of the tenant/defendant. 14. In all the views as above the impugned order recalling the order for striking out the defence in the suit of the tenant/defendant cannot be sustained. The same is therefore set aside. The revisional application is thus, allowed, however, without any order as to costs. Revisional application allowed.