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2007 DIGILAW 143 (CAL)

Dhruba Jyoti Ghosh v. Dipak Kumar Roy

2007-03-04

S.P.TALUKDAR

body2007
Judgment :- (1) THE order dated 10th July, 2006 passed by the learned Trial Court in the Small Causes Court of Calcutta in Ejectment Suit No. 201 of 2005-C is under challenge in this application under Article 227 of the constitution of India. (2) HEARD learned Counsel for the petitioner who submits that the present petitioner/defendant after appearing in the suit under reference filed an application praying for allowing him to deposit the arrear rent as well as the current rent. Learned Counsel for the petitioner submits that the learned Court disposed of the said application but due to wrong advice of the then learned conducting. Advocate, the petitioner/defendant went on depositing the current rent regularly. Subsequently, however, this was detected by another learned Advocate and being advised, the petitioner approached the learned Trial Court with an application under Section 151 of the Civil Procedure Code praying for allowing him to deposit the arrear rent from the period from August 2002 to April 2004. Learned Court took up the said application under Section 151 of C. P. Code and after contested hearing, dismissed the same and the defence against delivery of possession was struck out by the said order. Learned Counsel for the petitioner submits that the order under challenge was the result of mis-appreciation of the facts and circumstances of the case as well as misinterpretation of Section 151 of C. P. Code. Learned Counsel for the petitioner, in this context, refers to a number of decisions. (3) IN the case of Himanshu Kumar Lahiri v. Gajendra Kumar De, reported in 1986 (1) CHN 413 , learned Single Bench of this Court observed that it was the duty on the part of the learned Court to consider the application under Section 151 of C. P. Code on merits so as to decide the fate of the present petitioner/tenant. According to learned Counsel for the petitioner, the learned Court while taking up the application under Section 151 of C. P. Code did not, in. fact, enter into the explanation offered nor did it attempt to analyse whether there was justifiable reason for the failure on the part of the petitioner/tenant to deposit the arrear rent. (4) IN the case of Sheikh Shahjahan v. Sm. Shama Debi Bai and Anr. fact, enter into the explanation offered nor did it attempt to analyse whether there was justifiable reason for the failure on the part of the petitioner/tenant to deposit the arrear rent. (4) IN the case of Sheikh Shahjahan v. Sm. Shama Debi Bai and Anr. , reported in 1977 (2) CLJ 545, the learned Single Bench of this Court while considering the scope of Section 151 of C. P. Code observed that powers of the Court are wide enough to travel beyond the provisions of the statute which are technical in nature and to give relief in appropriate cases. (5) LEARNED Counsel for the petitioner relying upon the decision in the case of Gopal Shaw v. Kanailal Pakhira, reported in 1992 CWN 755 submitted that the case was under reference was an appropriate one for condonation of the lapse. In the said case, the learned Single Bench of this Court observed that "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 is that there has been no remissness or negligence on his part". (6) THEREAFTER, learned Counsel for the petitioner refers to the decision in the case of Ranjit Kumar Ghosh v. Manindra Chandra Saha, reported in 1995 (II) CHN 43 wherein the learned Court observed that the trial Court erred in not examining the grounds stated by the defendant. In the said case, the learned Single Bench of this Court observed that the trial Court should have considered the grounds and allowed the application under Section 151 of the C. P. Code read with Section 17 (1) of the West Bengal Premises Act. (7) IN the case of Pasupati Nath Auddya v. Shiba Ch. Dhar, reported in 1998 (2) CLJ 14 , the observation of the learned Single Bench may be re-produced hereunder:- "what emerges from the ratio of the decisions cited on behalf of the parties is that when a deposit as contemplated under Section 17 (1) is 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 explanation for condonation of delay, or the Court may extend the time for making the deposit, as the case may require". (8) ACCORDING to learned Counsel for the petitioner, in the present case there had been no wilful laches on the part of the petitioner who was a victim of the circumstances being wrongly advised by the learned conducting Advocate. (9) IN response to this, Mr. Tandan appearing as learned Counsel for the opposite party/plaintiff submits that the Court may have power under section 151 of C. P. Code to condone a lapse but that depends upon the circumstances of each particular case. It cannot be denied that the factual backdrop of the case, as referred to, on behalf of the petitioner are certainly not identical to those of the present case. But, it seems to be the settled position of law that the Court has always the power under Section 151 of c. P. Code to condone an unintentional lapse and thereby-----otherwise vigilant litigant to overcome the rigour of statutory technicalities. (10) IN the present case, the petitioner in response to the summons appeared in the case on 9. 5. 2005 and filed an application on 19. 9. 2005 praying for allowing him to deposit the monthly rent as well as the arrear rent with statutory interest thereon. As it appears from the impugned order, learned Court allowed the present petitioner/defendant to deposit rent at his own risk without prejudice to the rights and contentions of the parties. It is not clear as to whether any specific order was passed allowing the present petitioner to deposit the arrear rent. (11) MR. Tandan is perfectly justified in mentioning that it is the statutory obligation on the part of a tenant to deposit all admitted arrear rent within a specified time. There is no dispute in this regard. But, the learned Court was expected to see as to whether or not the petitioner/ defendant had satisfactory reason for failing to discharge the statutory obligation. The explanation offered is that the petitioner was wrongly advised by the learned conducting Advocate which caused the delay and at the subsequent stage, another learned Advocate advised him to take necessary steps in order to undo the wrong. There is no denial of the fact that there had been a failure on the part of the present petitioner/tenant to deposit admitted arrear rent and thus the petitioner/tenant failed to discharge his statutory obligation. There is no denial of the fact that there had been a failure on the part of the present petitioner/tenant to deposit admitted arrear rent and thus the petitioner/tenant failed to discharge his statutory obligation. The question that arises is whether the court under Section 151 of C. P. Code taking into consideration the peculiar facts and circumstances of the case could condone such lapse. (12) AFTER careful consideration of the impugned order, it is found that the learned Court did not properly deal with such explanation which was offered while praying for condonation of delay and seeking permission for allowing him to deposit the entire arrear rent. Such non-appreciation of the matter in its proper perspective resulted in striking out of the defence of the present petitioner/defendant against delivery of possession. (13) NO doubt, the stand taken by the learned Court thus has put the present petitioner/tenant into an awkward situation and the penalty of having his defence struck out cannot in any circumstances be taken lightly. (14) AFTER due consideration of all relevant facts and circumstances, this Court is inclined to hold that the learned Court was not justified in rejecting the prayer as made under Section 151 of C. P. Code. As such, the present application being C. O. No. 3116 of 2006 is disposed of after setting aside the impugned order dated 10. 07. 2006 and with the direction upon the petitioner/tenant to deposit entire arrear rent with a statutory interest thereof positively within a period of four weeks from this date; in default the legal consequences follow. (15) IT is perhaps needless to mention that the petitioner must continue to pay the current rent regularly in accordance with law. (16) THIS order is passed again without prejudice to the rights and contentions of the parties which the learned Court will have the liberty to consider at the appropriate stage. (17) IN response to submission made on behalf of the opposite party/ plaintiff, learned Trial Court is further directed to take all possible steps for expeditious disposal of the suit which is one for eviction and one of the grounds taken is the reasonable requirement of the plaintiff for his own use and occupation. All possible steps must be taken in order to dispose of the suit preferably within a period of eight months from the date of communication of this order. All possible steps must be taken in order to dispose of the suit preferably within a period of eight months from the date of communication of this order. Urgent xerox certified copy of this order, if applied for, be given to the learned Counsel for the parties expeditiously.