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2004 DIGILAW 71 (CAL)

HARENDRA NATH BAIDYA v. PADMA RANI

2004-02-05

JYOTIRMAY BHATTACHARYA

body2004
( 1 ) THIS application under Article 227 of the Constitution of India is directed against an order dated 15th September, 2001 passed by the learned Additional District Judge, 8th Court at Alipore in C. R. No. 348 of 2000, affirming the order being No. 86 dated 7th July, 2000 passed by the learned Civil Judge, Junior Division 6th Court at Alipore in T. S. No. 170 of 1993. ( 2 ) PURSUANT to the direction passed by this Hon'ble Court on 15th october, 2001, copies of the application were sent by the petitioner under registered post with acknowledgement due to the plaintiffs/opposite party nos. 1 to 7. Affidavit-of-Service filed by the petitioner today shows that excepting opposite party No. 6 all other opposite parties have received the said service. Opposite Party No. 6 who is one of the plaintiffs, is also proceeding with the said suit jointly with other opposite parties herein. The further proceeding of the said eviction suit remains stayed since 15th october, 2001 pursuant to the order of this Hon'ble Court, as such it cannot be held that the opposite party No. 6 has no knowledge of this revisional application. ( 3 ) IN spite of service of this revisional application upon the opposite parties in the manner as aforesaid, no one appears to oppose this revisional application at the time when the said application was called on for hearing. ( 4 ) AS such I find that no useful purpose will be served by keeping this application pending as the net result thereof would be the continuation of the order of stay for unknown duration. Hence, this application is taken up for hearing. ( 5 ) THE facts leading to the filing of this revisional application is briefly stated as follows : the erstwhile landlord Sukumar Mondal filed a suit for eviction against the petitioner herein on various grounds including the ground of default. The said suit which was filed in the Court of the Civil judge, Junior Division, 6th Court at Alipore was registered as T. S. No. 170 of 1993. ( 6 ) UPON receipt of the writ of summons of the said suit, the petitioner herein filed an application under Section 17 (2) of the West Bengal Premises tenancy Act, inter alia, praying for determination of the arears of rent. ( 6 ) UPON receipt of the writ of summons of the said suit, the petitioner herein filed an application under Section 17 (2) of the West Bengal Premises tenancy Act, inter alia, praying for determination of the arears of rent. The defendant-petitioner committed certain defaults with regard to the deposit of the current monthly rent in terms of the provisions of Section 17 (1) of the West Bengal Premises Tenancy Act. The rent from the month of Jaistha 1405 B. S. to Agrahayan 1405 B. S. was deposited on 21st January, 1999. Such deposits were all made beyond the prescribed period. As such the defendant-petitioner filed an application under Section 51 of the Code of civil Procedure for condonation of delay in depositing the said deposits beyond the prescribed period. ( 7 ) IN the said application it was stated by the said petitioner that during the pendency of the said suit the sole plaintiff died and the heirs of the sole plaintiff who were opposite party Nos. 1 to 7 herein were subsequently substituted in the place of the sole plaintiff in the said suit. This substitution came to the knowledge of the defendant-petitioner only on 21st January, 1999 and on the very same day the entire deposit covering seven months as aforesaid was deposited. The said petitioner also claimed that due to the laches on the part of his learned Advocate he could not deposit the said rents in Court within the prescribed period of limitation. As such, the petitioner prayed for condonation of delay in depositing the rent for the said period. ( 8 ) THE said application of the defendant-petitioner was rejected by the learned Trial Judge by his Order being No. 86 dated 7th July, 2000 on the ground that since the application under Section 17 (2) of the West Bengal premises Tenancy Act had already been disposed of, the petitioner's prayer for condonation of delay for the subsequent defaults cannot be considered. ( 9 ) BEING aggrieved by the said order the defendant-petitioner filed an application under Section 115a of the Code of Civil Procedure being c. R. No. 348 of 2000 before the learned Additional District Judge, 8th Court at Alipore. The learned Additional District Judge also dismissed the said revisional application on 15th September, 2001 by affirming the findings of the learned Trial Court. The learned Additional District Judge also dismissed the said revisional application on 15th September, 2001 by affirming the findings of the learned Trial Court. ( 10 ) THE said order is under challenge in this revisional application. ( 11 ) IT appears from the order impugned as well as from the order of the learned Trial Judge that both the Courts below while deciding the petitioner's said application for condonation of delay refused to apply the principles laid down in the decision reported in AIR 1987 SC 1010 (M/s. B. P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick and Another) on total misconception of law. According to the learned Court below that since the belated payment of rent is for a period of more than four months, the principles laid down by the Hon'ble Apex Court in the said decision reported in AIR 1987 SC 1010 has no application in the instant case. The said finding of the learned Court below, is absolutely erroneous, as it is contrary to the ratio of the said decision of the Hon'ble Supreme Court wherein the hon'ble Supreme Court not only made a distinction between two types of default i. e. default in technical sense and the default in real sense and the respective consequences thereof but also recognised the Court's power in exercising discretion for condonation of delay in deposit of rent for the subsequent months. The length of period of default is not the guiding factor, but what is relevant for condonation of delay, in my considered view, is the reasonableness of the grounds which prevented the petitioner from de'positing the periodical rents for the current months within the prescribed period. ( 12 ) HERE in the instant case, it appears from the materials-on-record that the said deposits could not be made by the petitioner on the ground of the laches on the part of the learned Junior Advocate of the petitioner which fact having not been specifically controverted by the plaintiffs/ opposite parties, by filing objection, the Courts below ought to have believed the reasons assigned by the petitioner for such default. ( 13 ) THAT apart, it appears from the record that the default in deposit of current rent, for which condonation was prayed for, were all committed during the pendency of the proceeding under Section 17 (2) of the West bengal Premises Tenancy Act. ( 13 ) THAT apart, it appears from the record that the default in deposit of current rent, for which condonation was prayed for, were all committed during the pendency of the proceeding under Section 17 (2) of the West bengal Premises Tenancy Act. As such as per the settled law of land the learned Trial Judge, while deciding the petitioner's application under Section 17 (2) of the said Act ought to have considered the validity of the said deposits and accordingly ought to have passed necessary orders for depositing the said defaulted payments along with the other period for which default was found to have been committed. Had the validity of such deposits been considered by the learned Court below at the time of disposal of the application under Sectioin 17 (2) of the said Act there would have been no occasion for the petitioner to file the instant application for condonation of delay for these delayed deposits. ( 14 ) THUS, when the Court had committed a mistake, such mistake should have been rectified by the Court itself and no technical consideration should have been allowed to stand in the way of rectifying such mistake. ( 15 ) THUS following the said principle the Court below ought to have condoned the delay so that the petitioner is saved from the penal consequences. ( 16 ) IN the aforesaid facts and circumstances I fully disagreed with the findings of the learned Court below and I hold that the grounds made out by the petitioner for condonation of delay is sufficient, as the delay in depositing rent for he said period, is not wilful. ( 17 ) THE delay in depositing the rent for the period from Jaistha 1405 b. S. to Agrahayan 1405 B. S. resulting default in technical sense is hereby condoned. ( 18 ) THE order impugned is set aside. ( 19 ) THE revisional application is thus allowed. ( 20 ) LET the affidavit-of-service filed in Court today be kept with the record. There will, however, be no order as to costs.