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2002 DIGILAW 532 (CAL)

Debabrata Bhanja Chowdhury v. Nabin Chandra Sahoo

2002-08-09

HRISHIKESH BANERJI

body2002
JUDGMENT The suit out of which the present Second Appeal arises was filed on April 30, 1976 in the 5th Court of Munsif, Alipore by the plaintiff/respondent against the defendant/appellant for eviction of the latter on the grounds, inter alia, of default in the payment of rent of Rs. 100/- per month from may, 1973 to March, 1976 and reasonable requirement of the suit premises at 424/2, Jayrampur Jala Road, Calcutta-50, for own use and occupation. 2. Appearing in the suit the defendant filed an application on September 21, 1976 under Section 17 (2) read with Section 17 (2A) of the West Bengal Premises Tenancy Act, 1956 (the ‘1956 Act’ for short). In the said application the defendant denied that there was any relationship of landlord and tenant between him and the plaintiff. 3. By his order dated February 2, 1978 the learned Munsif, 5th Court, Alipore disposed of the aforesaid application directing the defendant to pay arrears of rent together with statutory interest amounting in total to Rs. 3163/by 39/equal monthly instalments and the balance amount by an additional instalment. 4. Against the said order passed by the learned Munsif the defendant moved a revisional application in this Court and by his order dated August 29, 1979, B.C. Chakrabarty, J. (as his lordship then was) disposed of the said application and remanded the matter to the learned Munsif for hearing out the application under Sections 17(2) and 17(2A) of the 1956 Act along with issue No.5 on such evidence as the parties would adduce in addition to the evidence already on record. 5. The learned Munsif decided the application under Sections 17 (2) and 17 (2A) of the 1956 Act along with issue No.5 on June 22, 1981 and held that there was relationship of landlord and tenant between the parties in respect of the suit premises and that the defendant was liable to pay all arrears of rent from May, 1974 and that he was not entitled to any suspension of rent whatsoever. 6. On 4.11.1981 the plaintiff filed an application under Section 17 (3) of the 1956 Act for striking out the defence of the defendant against delivery of possession. 6. On 4.11.1981 the plaintiff filed an application under Section 17 (3) of the 1956 Act for striking out the defence of the defendant against delivery of possession. The defendant filed a revisional application being C.R. No. 2869 of 1981 in this Court on June 22, 1981 challenging the order of the learned Munsif who held that there was relationship of landlord and tenant between the parties and that the defendant was liable to pay all arrears of rent and rental equivalent from May, 1974. The said revisional application was dismissed by Sushanta Chatterjee, J. (as his lordship then was) on September 13, 1988. The learned Judge, however, observed that the defendant could challenge the findings under Section 105 of the Code of Civil procedure if any appeal was filed after the disposal of the title suit. 7. The defendant's application for Special Leave before the Supreme Court against the above order passed on September 13, 1988 was dismissed by the Apex Court. 8. On December 2, 1989 the defendant filed an application under Order 47 Rule 1 of the Code of Civil Procedure in the Court of learned Munsif along with an application under Section 5 of the Limitation Act for condoning the delay in filing the said application and praying, inter alia, for review of the order dated June 22, 1981 whereby the defendant was directed to pay all arrears of rent and the rental equivalent from May, 1974 with the finding that there was relationship of landlord and tenant between the plaintiff and the defendant. The said application was registered as Misc. Case No. 61 of 1989. The defendant filed an application for stay of all further proceedings in Title Suit No. 203 of 1976 and for stay of the operation of the order dated June 22, 1981 passed by the learned Munsif directing the payment of arrears and deciding issue No.5 in favour of the plaintiff's contention that there was relationship of landlord and tenant between the parties. The learned Munsif by his order dated May 22, 1990 allowed the application under Section 17 (3) of the 1956 Act filed by the plaintiff and fixed Misc. Case No. 61 of 1989 for hearing on July 23, 1990. The defendant preferred a revisional application in this Court being C.O. No. 234 of 1990 on December 22, 1990 and the same was ultimately rejected by this Court. Case No. 61 of 1989 for hearing on July 23, 1990. The defendant preferred a revisional application in this Court being C.O. No. 234 of 1990 on December 22, 1990 and the same was ultimately rejected by this Court. Thereafter, the learned Munsif rejected the review application being Misc. Case No. 61 of 1989 filed by the defendant by order No. 79 dated December 22, 1990 and the revisional application before the learned District Judge, Alipore against the said order was also rejected. 9. The suit was thereafter heard by the learned Munsif who decreed the suit on June 6, 1991 directing the defendant to vacate within 60 days from the date of the decree. The appeal preferred against the Judgment and decree passed by the learned Munsif was dismissed by the learned Additional District Judge, 11th Court, Alipore. 10. The substantial questions of law settled at the time of the admission of this second appeal are as follows :– (1) Whether the order dated June 22, 1981 under Sections 17 (2) and 17 (2A) directing the defendant to deposit arrear rent from May, 1974 without taking into account the deposit of the equivalent of monthly rent for four months during the period from February to May, 1978 in terms order No. 23, dated February 2, 1978, is illegal and the Court of Appeal below erred in law in not setting aside the said order and passing a fresh order under Sections 17 (2) and 17 (2A) of the West Bengal Premises Tenancy Act. (2) Whether the order under Section 17 (3) of the West Bengal Premises Tenancy Act not having been preceded by a valid order under Sections 17 (2) and 17 (2A) of the 1956 Act, should have been set aside by the Lower Appellate Court. 11. Mr. Dasgupta, appearing for the appellant submits that the Courts below failed to appreciate the legal position that while disposing of the application under Sections 17 (2) and 17 (2A) of the 1956 Act the Court should direct payment of all arrears including the amount deposited by the tenant before the date of the order. Mr. Dasgupta contends that in the instant case the Court did not take into account the deposit of monthly equivalent of rent for 4 months made by the defendant in calculating the arrears which were directed to be deposited in Court. In support Mr. Mr. Dasgupta contends that in the instant case the Court did not take into account the deposit of monthly equivalent of rent for 4 months made by the defendant in calculating the arrears which were directed to be deposited in Court. In support Mr. Dasgupta has cited the following decisions (1) 1978 (1) CLJ 645 , Pulin Kumar Chowdhury v. Sachindra Mohan Bose & Anr., (2) AIR 1988 SC 1858 , Dilbagrai Punjabi v. Sharad Chandra, (3) Cal. LT. 1991 (2) HC 126, Smt. Kali Talukdar v. Pradosh Kumar Bajpaie, (4) 1981 (1) CLJ 227 , Anil Kumar Ghosh v. Manick Lal Manna & Ors., (5) 1996 (8) 365, D.S. Thimappa v. Siddaramakka. 12. In 1978 (1) CLJ 645 (supra) the landlord filed an ejectment suit against the tenant, inter alia, on the allegation that the latter had made default in the payment of rent for a pretty long period. Appearing in the suit the tenant filed an application under Section 17 (2A) (b) of the 1956 Act. The learned Munsif disposed of the application by an order dated 12.5.1976 holding that the defendant was in arrears from March, 1971 to September, 1974 and directing the defendant to deposit the said arrears with interest due in monthly instalments. It was, however, later detected that the defendant/tenant had failed to deposit the rental equivalent under Section 17 (1) from July, 1975 to January, 1976. The fact of such non-deposit was not drawn to the notice of the Trial Court when it disposed of the defendant's application under Section 17 (2A) on 12.5.1976. The plaintiff filed an application under Section 17 (3) for striking out the defendant's defence against delivery of possession on the ground of such non-deposit of rent as required under Section 17 (1) of the Act. The learned Munsif allowed the plaintiff's application under Section 17 (3) of the 1956 Act. The plaintiff filed an application under Section 17 (3) for striking out the defendant's defence against delivery of possession on the ground of such non-deposit of rent as required under Section 17 (1) of the Act. The learned Munsif allowed the plaintiff's application under Section 17 (3) of the 1956 Act. In the revisional application, filed by the defendant against this order the Hon'ble Justice Chittatosh Mookherjee (as his lordship then was) held that where payment of the arrears was permitted by instalments, such sum should include all amounts calculated at the rate of rent for the period of default including the period subsequent thereto up to the end of the month previous to that in which the order under this sub-section was to be made with interest on any such amount calculated at the rate specified in sub-section (1) from the date when the amount was payable up to the date of such order. Therefore, it is clear that the Court, in making the order under sub-section (2A) (b) of Section 17 shall include the total amount due up to the end of the month previous to the month in which the said order will made. It was further held that when the Court itself through inadvertence had failed to discharge its statutory duty in the matter of calculation of the arrear rent and the interest to be paid by instalments in terms of Section 17 (2A) (b) read with the proviso thereto there could be no question of waiver of such a statutory provision. It was held that unless and until an application under sub-section (2A) of Section 17 was disposed of by the Court the provisions of Section 17 (3) could not be invoked and only after a valid order under sub-section (2A) is passed and there is a breach of the said order, the question of striking out the defendant's defence against the delivery of possession can arise. 13. In the decision reported in Calcutta Law Times 1991 (2) HC 126 (supra) Justice Ajit Kumar Nayak (as his lordship then was) held that an order for striking out the defendant's defence against the delivery of possession under Section 17 (3) of the 1956 Act could only be made when there was a breach of the order or of the direction given by the trial Court under Section 17 (2A) of the said Act. In that case the High Court's attention escaped the fact that only two deposits were made slightly out of time when the revisional application was disposed of. In such circumstances, it was held by the learned Judge while disposing of the matter in second appeal that statutory and mandatory provisions ...... could not be ignored to the peril of the tenant who was entitled to the relief under the protective clauses of the beneficial legislation. 14. It was also held by the learned Judge in the said case that the failure on the part of the defendant to deposit the rental equivalent for the months of October, 1970 and April, 1972 within time but slightly out of time, was an obvious mistake which escaped the notice of the trial Court while dealing and disposing of the application under Section 17 (2A) of the said Act. The learned Judge further observed that the Court would not be altogether powerless to correct an error and referred to the Supreme Court decision in (6) Pratap Singh's case reported in AIR 1956 SC 140 where the Supreme Court deprecated technicalities and held that it would be the substance which should Court and must take precedence over mere form. The Supreme Court also continued that it would be putting a high premium for technical formality to follow a particular form which was not consistent to the spirit of the legislation. 15. In AIR 1988 SC 1858 (supra) cited by Mr. Dasgupta, the landlord claimed eviction of his tenant from a non-residential premises under the provisions of M.P. Accommodation Control Act, 1961 on the ground that he required the premises personally for starting a business. Under the provisions of the said Act it was essential for the landlord to establish that he was the owner of the disputed premises. In such a suit the lower Courts had without considering the tenant's admission of the landlord's title to the disputed property as contained in his reply to the notice given by the landlord and in the numerous rent receipts issued by the landlord recorded the finding that the landlord had failed to establish his ownership of the disputed property. In such a suit the lower Courts had without considering the tenant's admission of the landlord's title to the disputed property as contained in his reply to the notice given by the landlord and in the numerous rent receipts issued by the landlord recorded the finding that the landlord had failed to establish his ownership of the disputed property. The Supreme Court, in the circumstances of the said case held that the High Court was right in reversing the finding of fact and observed that the Court was under a duty to examine the entire relevant evidence-on-record and if it refused to consider important evidence having direct bearing on the disputed issue, such an error would give birth to a substantial question of law and the High Court will be fully authorised to set aside such a finding. 16. In 1981 (1) CLJ 227 (supra) it was held by a Single Bench of this Court that an order under Section 17(3) of the 1956 Act striking out the tenant's defence against the delivery of possession would not be sustainable if such an order is not preceded by determination of the dispute as to relationship of landlord and tenant in favour of the former. 17. In the case of D.S. Thimmappa reported in (1996)8 SCC 365 (supra) the Supreme Court has held that where the First Appellate Court fails to draw proper inference from proved facts and to apply law in proper perspective, the High Court in second appeal would be justified in drawing proper inference from such proved facts inasmuch as the drawing of such inference does not involve appreciation of evidence by the High Court and therefore interference of the High Court in such a case would not be improper. 18. Referring to the above decisions Mr. Dasgupta contends that the order passed by the learned Munsif under Section 17(3) is not sustainable as it was not preceded by a valid order under Sections 17(2) and 17(2A) of the 1956 Act. 19. Mr. 18. Referring to the above decisions Mr. Dasgupta contends that the order passed by the learned Munsif under Section 17(3) is not sustainable as it was not preceded by a valid order under Sections 17(2) and 17(2A) of the 1956 Act. 19. Mr. Dutta, appearing for the respondent/landlord refers to the following decisions in support of his contention that non-consideration of four deposits made by the defendant cannot now be re-opened to nullify the orders under Sections 17(2A) and 17(3) of the 1956 Act which have been affirmed by the Revisional Court followed by rejection of the defendant's special leave petition before the Supreme Court:– (7) AIR 2001 SC 965 , Santosh Hazari v. Purusottam Tiwari, (8) AIR 1994 SC 475 , Kundan Lal v. Angan Lal, (9) AIR 2001 SC 2920 , Veerayu Ammal v. S. Ammal. 20. In Santosh Hazari's case the Supreme Court held that the High Court cannot proceed to hear a second appeal without formulating a substantial question of law involved in the appeal and if it does so it acts illegally and in abdication of the duty cast on the Court. The existence of a substantial question is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code of Civil Procedure and that an entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. 21. In AIR 2001 SC 2920 (supra) the suit out of which the appeal was taken to the Apex Court was one for specific performance of contract. The trial Court framed an issue whether the plaintiff was ready and willing to perform his part of the contract. It was held by the Supreme Court that the issue having been an issue of fact, concurrent findings of fact arrived at by the trial Court and the First Appellate Court, could not be disturbed by the High Court in second appeal on appreciation of the evidence taking a different view by terming the issue as a substantial question of law. 22. Mr. 22. Mr. Dutta also refers to the Supreme Court decision reported in AIR 1994 SC 479 (supra) wherein an eviction suit on the ground of non-occupancy by the tenant of the tenanted premises the defence of the defendant was struck out for non-compliance with the order of payment of defaulted rent under Section 15(1) of the Delhi Rent Control Act, 1958. It was held, in such circumstances, that the order of eviction was not revokable when eviction was sought for on the ground of default in the payment of rent as well as on other grounds which ultimately failed. 23. Although several decisions have been cited on behalf of both the parties, the decision in the present appeal depends on whether the order passed by the trial Court under Sections 17(2) and 17(2A) of the 1956 Act on June 22, 1981 is invalid on the ground that the trial Court did not consider four chalans showing deposits of alleged equivalent of monthly rent for the months of March, 1978, April, 1978 and May, 1978. 24. Two of such deposits were both for the month of March, 1978 and the other two deposits were in respect of the months of April and May, 1978. For the month of March, 1978, one of the deposited amounts shown as rental equivalent was AS.100/- while the second and subsequent deposit for the same month of March, 1978 was for a further sum of As.75/- towards the alleged monthly equivalent of rent. The other two deposits were each of RS.75/- towards the alleged monthly equivalent of rent for the months of April and May, 1978. 25. These stray and erratic deposits viz. a total deposit of Rs. 175/- towards the alleged monthly rent for February, 1978 (by two chalans) and the remaining two deposits each of Rs. 75/- towards the alleged monthly equivalent of the rent for the months of April and May, 1978 are not the rental equivalent for any for the months of February April or May, 1978, inasmuch as, the trial Court found that Rs.100/- was the monthly rent which was payable by the defendant to the plaintiff in respect of the suit premises. 26. 26. In the decision reported 1978 (1) CLJ 645 (supra) it was held by the learned Single Judge of this Court that where the defendant/tenant had failed to deposit the sum equivalent to rent from July, 1975 to January, 1976 while his application under Section 17(2A) was still pending, the Court was under a statutory obligation to include in its order under Section 17(2A) (b) all arrears subsequent to the filing of the suit and up to the end of the month previous to that in which the order under the said sub-section would be made with interest on any such amount calculated at the rate of rent for the period of default specified in sub-section 1 of Section 17 from the date when the amount would be payable up to the date of the order. 27. In view of the above both the decisions viz., the one reported in 1978 (1) CLJ 645 (supra) and the other in Cal. LT. 1991 (2) HC 126 (supra) cited by Mr. Dasgupta are clearly distinguishable and those are not applicable to the facts of the present case as the trial Court cannot be said to have committed any error by not including the aforementioned deposits for three months which were not the equivalent of monthly rent of Rs.100/- as discussed above. 28. It appears from the record of the case in hand that the defendant did not deposit a single instalment in terms of the order passed by the trial Court under Sections 17(2) and 17(2A) of the 1956 Act. As the defendant made default in the payment of rent for the months from May, 1973 and did not comply with the provisions of sub-section 4 of Section 17 of the 1956 Act, the trial Court rightly decreed the suit and the First Appellate Court was justified in dismissing the appeal preferred against the judgment and decree of the trial Court. 29. The present appeal is accordingly dismissed with costs assessed at 100 G.Ms. All interim orders stand vacated. Let the lower Court records be sent down to the trial Court by a special messenger at the cost of the respondent without any delay after the decree is drawn up in this Court. Such special messenger cost is to be deposited by the respondent within a week.