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2004 DIGILAW 16 (CAL)

PRABIR CH. GHOSH v. RIJU THAKUR

2004-01-09

AMITAVA LALA

body2004
A. LALA, J. ( 1 ) THIS is an application under section 104 of Code of Civil Procedure challenging the order being order No. 84 of 19th July, 1999 passed by the learned Judge, 8th Bench, City Civil Court at Calcutta. Such order was passed allowing the application under section 17 (2) of the West Bengal Premised Tenancy Act, 1956 read with section 151 of the Code of Civil Procedure holding that there is no arrear of rent due and payable by the defendant to the plaintiff. In further, the deposits of rent made in the name of original plaintiff since dead are all valid and plaintiff had liberty to withdraw the deposited rents on proper application. ( 2 ) ACCORDING to the petitioner, predecessor-in-interest of the petitioner instituted an Ejectment Suit being No. 52 of 1979 in the self-same Court for eviction of one Padarath Thakur and Riju Thakur alias Raju Thakur, since deceased, original opposite party herein, on the ground of default in paying rent. During the pendency of this suit Padarath Thakur expired and Riju Thakur, enjoyed sole tenancy of the suit premises being the then surviving tenant. On 29th January, 1986 suit was decreed for costs but as it was first default he obtained the relief under section 17 (4) of the West Bengal Premises Tenancy Act, 1956. Thereafter he started to pay rents to the predecessor-in-interest of the petitioner for sometimes but again committed default in payment of rent in respect of the suit premises since July, 1986. In January, 1987 she instituted the present suit for committing such second default in the self-same Court. Then the original opposite party being defendant therein filed an application under section 17 (2) of the West Bengal Premises Tenancy Act, 1956 disputing the cause of default and prayed for an order of determination of such dispute and payment of arrears of rent in easy instalments. Such application was filed with a supporting application under section 5 of the Limitation Act for condonation of delay. The application was dismissed for default but subsequently restored. The original plaintiff expired. The present petitioner stepped in the shoes of the original plaintiff. On 12th September, 1991 the present petitioner filed an application under Order 22 Rule 3 of the Code of Civil Procedure for substituting his name in the place and instead of the deceased plaintiff. The application was dismissed for default but subsequently restored. The original plaintiff expired. The present petitioner stepped in the shoes of the original plaintiff. On 12th September, 1991 the present petitioner filed an application under Order 22 Rule 3 of the Code of Civil Procedure for substituting his name in the place and instead of the deceased plaintiff. It was opposed by the opposite party. ( 3 ) THE opposite party had been depositing the rents in respect of the suit premises before the Rent Controller. Calcutta prior to institution of the suit and he continued with the same even after institution of the same till March, 1993 in the name of Smt. Monoroma Dassi, since deceased, original plaintiff. The petitioner contended that inspite of knowledge of death on 22nd June, 1991 the opposite party continued to deposit such rents in the name of the deceased plaintiff for 22 months from July, 1991 till March, 1993. Accordingly, such deposits before the Rent Controller, Calcutta in the name of the deceased person were totally invalid and illegal. On 16th April, 1998 the petitioner filed a written objection against the application under section 17 (2) of the Act pointing out such invalid deposits. It was specifically mentioned that inspite of the full knowledge about the death of the original plaintiff the opposite party deliberately continued to deposit in the name of a dead person. By a reply the opposite party alleged that he was unaware of the death and only after the order of substitution being No. 50 dated 17th March, 1993 he deposited rents in the name of the substituted plaintiff with effect from April, 1993. Therefore, the deposits which had been made in the name of the plaintiff, since deceased, were valid. On 16th April, 1999 the opposite party filed another application for treating the aforesaid deposits as valid deposits. According to the petitioner, no knowledge about death was a deliberate false statement inasmuch as in the opposition to the application for substitution filed on 31st January, 1992. The knowledge of death was admitted. The application under section 17 (2) of the Act and the objection was taken up together and in allowing the applications the Court held that the opposite party is not a defaulter and the deposits which were made to the Rent Controller are valid deposits. The knowledge of death was admitted. The application under section 17 (2) of the Act and the objection was taken up together and in allowing the applications the Court held that the opposite party is not a defaulter and the deposits which were made to the Rent Controller are valid deposits. ( 4 ) I find that the learned Judge formulated two points for determination which are as follows:1. WHETHER there is any arrear of rent due and payable by the defendant to the plaintiff and if so, whether the defendant is entitled to payment of the arrear amounts by easy instalments?2. WHETHER the deposits of rent with the Rent Controller and also the deposits in the name of death person as alleged were all invalid? ( 5 ) IN coming to conclusion the Court held that without any order of substitution the deposit, if any, in the name of the deceased plaintiff cannot be said to be invalid. Moreover, sufficient explanation is given for the fact that the rents for the month of July and August, 1996 had been deposited in the Rent Controller Office. Though apparently there was some delay of few days in deposits of rents for some months the plaintiff failed to produce any materials to show that there was any agreement for making payment of rent on particular dates of months. However, the Court held that even grant of rent receipts after 2 or 3 months of receiving the rent was not countered by the plaintiff. There is no dispute to the legality of deposits of rent from April, 19, 1993. ( 6 ) LEARNED counsel appearing for the petitioner/plaintiff contended before this Court that deposit in the name of dead person in wrongful. Payments for 22 months were made before Rent Controller. When the payment was made to the Rent Controller delay, if any, in making such payment cannot be condoned. ( 7 ) IN paragraph 8 of the judgment reported in 1978 (1) CLJ 629 (Provabati Chakrabarty v. Satyendra Nath Chatterjee and Ors.) it was held by a Bench of this Court following the Division Bench judgment of this Court reported in AIR 1969 Cal 104 (Manickchand Durgaprosad and Bros. v. Balukidas Baheti) that the provisions of section 151 of the Code of Civil Procedure could not be invoked to correct the mistakes in the rent control challans. v. Balukidas Baheti) that the provisions of section 151 of the Code of Civil Procedure could not be invoked to correct the mistakes in the rent control challans. Such authorities cannot make any correction in the challans and vary the appropriation of the rent to a month other than mentioned in the application. Therefore, the deposits made in the office of the Rent Controller were not capable of being corrected either by the Rent Controller or by the learned Munsif (here it will be equated with the Judge of the City Civil Court being the Original Court ). Obviously the learned Munsif had no jurisdiction to correct mistakes in the challans for depositing the amounts equivalent to rent in the office of the Rent Controller. ( 8 ) LEARNED counsel appearing for the opposite party contended before this Court that application under 115 of the Code of Civil Procedure is not available in the circumstances after the amendment of the Code of Civil Procedure. Upon going through the proviso under section 115 (1) of the Code of Civil Procedure I find that High Court shall not under this section, vary or reverse any order, except where the order is made in favour of the party applying for revision would have finally disposed of the suit or other proceedings. It is true to say that in view of the amendment, strictly speaking, applications under section 115 may not be available. But what will happen when the applications are being made prior to the amendment of the Code of Civil Procedure is waiting for hearing? Obviously equity comes to play a crucial role. Following such principle, our High Court held on numerous occasions that such applications will be converted into the category of applications under Article 227 of the Constitution of India and I have no hesitation in my mind to follow such decision to avoid the anomalous situation. ( 9 ) SO far as the merit is concerned he relied upon a judgment reported in AIR 1987 SC 1010 (M/s B. P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick and Anr.) to establish that the proviso under section 17 (4) of the Act makes it clear that if the subsequent default is for a period less than 4 months within the period of 12 months the tenant can claim relief under the sub section once again. ( 10 ) ACCORDING to me, section 17 (1) of the West Bengal Tenancy Act, 1956 is to be read with its true prospective. By insertion of amendments in 1959 and 1965 therein tenant is required to deposit the rent, subject to the provision of sub section (2), within one month from 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. Such deposits will be made in the Court or with the Controller or pay to the landlord. Therefore, deposits during the pendency of the suit and/or proceeding in the Court or with the Controller or to the landlord are integral part of it. Hence, there cannot be any embargo upon the Court to decide the question of any of such type of deposits. All the sub sections under section 17 are made subject to the provisions of section 17 (1) which is making the guiding principle of the same. ( 11 ) CHAPTER III of the West Bengal Premises Tenancy Act, 1956 is making a provision for suits and proceedings for eviction. Section 13 thereunder is performing a crucial role therein. It relates to protection of tenant against eviction. Section 17 is one of the sections under such Chapter which deals with benefit of protection of a tenant against eviction. Therefore, whatever benefit a tenant is entitled in relation to default of paying rent it would be restricted in the course of proceeding of suit. The relevant provision under section 17 (1) of the Act clearly speaks in respect of deposit of rent upon service of the writ of summons or after appearance. Therefore, the courses prescribed under such section are made applicable for the interregnum period of the suit. If it is so the proviso applicable to sub section (4) of section 17 is also applicable for such interregnum period. Under the West Bengal Premises Tenancy Act, 1956 the rights of the tenants are well-protected. Possibly this is one of the important reasons for reframing the new Premises Tenancy Act. In any event, the legislative intention of the prior Act i. e. the Act of 1956 was to give more relaxation to a tenant and more authority to the Court of law to test the bonafide of such tenant. Possibly this is one of the important reasons for reframing the new Premises Tenancy Act. In any event, the legislative intention of the prior Act i. e. the Act of 1956 was to give more relaxation to a tenant and more authority to the Court of law to test the bonafide of such tenant. Section 17 and its connected sub sections are product of the same. It is very difficult for a Court to decide a issue of default unless and until successive defaults are apparent before the Court of law. If so, obviously the Court has discretion to pass an appropriate order following the legislative intent but that does not necessarily mean that when ejectment was instituted on the ground of default of payment of rent and the question of payment or non-payment of rent arose prior to the institution of the suit the same will also be regularized in the guise of section 17 of the Act. If it is so, the question of default will never be established and no such suit can be decreed. Therefore, the mistaken part of the order of the learned Judge is to condone the delay and regularize the deposits before the Rent Controller prior to institution of the suit in the guise of section 17 of the Act. Such subject will be germane for the purpose of due consideration at the time of finalization of suit in passing a decree or dismissing the same on account of default. ( 12 ) THUS, I hold affirmatively in favour of the petitioner and set aside the order impugned. Interim order, if any, stands confirmed. No order is passed as to costs. If Lower Court record is brought the same will be sent down as early as possible preferably by 22nd of January, 2004. The learned Judge presiding the Bench will be entitled to proceed with the suit as well as the appropriate application in accordance with law. However, these orders are made by converting this application into an application under Article 227 of the Constitution of India and subject to payment of Court fees by 14th January, 2004. Let an urgent Xeroxed certified copy of this judgment, if applied for, be given to the learned Advocates for the parties within two weeks from the date of putting the requisites. Application set aside .