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2008 DIGILAW 701 (CAL)

Dipen Das v. Ashalata Marik

2008-07-17

TAPAS KUMAR GIRI

body2008
Judgment : TAPAS KUMAR GIRI, J. (1.) AN order dated 22nd August, 2007 for rejection of an application under Section 151 C. P. C. for condonation of delay in depositing the rent for the month of March, 1990, September, 1990, November, 2001, December, 2001 and January to April, 2002 passed by the Learned Additional District Judge, Fast Track 3rd Court at sealdah in Title Appeal No. 7 of 2007 is now under challenge before this Court by way of application under Article 227 of the Constitution of India. (2.) THE case set up by the petitioner/defendant/appellant is that the plaintiff/opposite party/respondent filed a suit for eviction against the petitioner on the ground of default, damage and reasonable requirement before the Learned Civil judge (Junior Division). (3.) THE defendant contested the suit by filing the written statement denying all the material allegations of the plaint. The Learned Civil Judge (Junior Division) at sealdah passed the judgment and decree on 15. 11. 2006 against the defendant. (4.) THE defendant/appellant has preferred an appeal as Title Appeal No. 7 of 2007 before the Learned Additional District Judge, Sealdah and it was subsequently transferred to the Learned Additional District Judge, Fast Track 3rd Court at Sealdah. During the pendency of the appeal, the appellant/defendant filed an application under (5.) SECTION 151 C. P. C. praying for condonation of delay in depositing the rent for the relevant months as stated above. The rents for those months were handed over to the clerk of his advocate but the clerk did not deposit the same. After hearing of both sides, the Learned Additional District Judge, Fast Track 3rd Court at Sealdah rejected the same on 22. 8. 2007. (6.) BEING aggrieved by and dissatisfied with the said order dated 22. 8. 2007 passed by the Learned Additional District Judge, Fast Track 3rd Court at Sealdah, the petitioner has preferred this application under Article 227 of the Constitution of India for setting aside the said order and to condone the delay for depositing the rent of the relevant months as stated in the application. (7.) MR. 8. 2007 passed by the Learned Additional District Judge, Fast Track 3rd Court at Sealdah, the petitioner has preferred this application under Article 227 of the Constitution of India for setting aside the said order and to condone the delay for depositing the rent of the relevant months as stated in the application. (7.) MR. T. K. Halder, the Learned Advocate on behalf of the petitioner contended that it was the admitted position that the petitioner/defendant did not deposit the rents for the month of March, 1990, September, 1990, November and December, 2001 and january to April, 2002 though the defendant handed over the rents for those months to the clerk of his advocate but the said clerk did not deposit the same. (8.) MR. Halder contended that it was well established that no party should suffer for default or negligence of his lawyer. In the present case the defendant handed over the rents for those months to the clerk of his advocate but the said clerk did not deposit the same. The defendant will not suffer for the negligence of the clerk of his lawyer. Moreover, the first appellate court has the power to allow the defendant to deposit the said rents after condoing the delay. In support of the contention Learned advocate cited case law reported in 92 CWN -"755 (Gopal Shaw V. Kanailal pakhira), 2002 (3) SCC " 617 (Shibu Chandra Dhar V. Pashupati Nath Auddy), 88 cwn- 898 (Amiya Kr. Chakraborty V. Satyendra Kr. Roy Chowdhury) and 92 cwn " 1080 (Zodiac Investment Ltd. V. Durga Investment Trading andco.)Mr. A. Rahmani, Learned Advocate of the opposite party No. 1 contended that the petitioner/defendant at first filed an application under Section 17 (1) of the w. B. P. T. Act before the Learned Civil Judge (Junior Division) on 11. 6. 1986 and that application was allowed in 1986. The petitioner did not deposit the rent on the basis of the order of the application under Section 17 (1) of the W. B. P. T. Act. Afterwards the suit was decreed as exparte in 1998. The defendant filed the application under order 9 Rule 13 of the C. P. C. and it was allowed on contest. The defendant filed an application under Section 151 C. P. C. before the Learned Civil Judge (Junior division) for depositing the rents of the above months and it was allowed on consent. The defendant filed the application under order 9 Rule 13 of the C. P. C. and it was allowed on contest. The defendant filed an application under Section 151 C. P. C. before the Learned Civil Judge (Junior division) for depositing the rents of the above months and it was allowed on consent. The defendant did not deposit the rents for the said above months. Afterwards, the suit on contest was decreed on 15. 11. 2006. The Execution case was filed in 2007. The defendant deposited the rents in 2007. An appeal is preferred vide Title appeal no. 7 of 2007. During the pendency of the above appeal before the Learned additional District Judge, Fast Track 3rd Court at Sealdah, the appellant/defendant filed an application under Section 151 C. P. C. to condone the delay for depositing the rents of the above default months and the Learned Additional District Judge Fast track Court after hearing rejected the same. In the above circumstances the Learned judge Fast Track Court rightly rejected the application. (9.) MR. Rahmani contended that when the tenant voluntarily committed the breach under Section 17 (1) of the W. B. P. T. Act to deposit the rent, the Court would certainly refuse to exercise its jurisdiction in favour of such a defaulting tenant and would reject his prayer for condonation of delay in making the deposit. (10.) IN support of the contention, the Learned Advocate cited two case laws reported in 76 CWN-435 (Sitala Debi V. Man Bahadur), 2000 (2) CLJ 357 (Subodhlal Samaddar V. Swapan Samaddar and Ors.). (11.) I shall now consider the respective contentions of the parties. There can be no dispute that power and jurisdiction of the court under Section 17 and its sub sections have been expressly provided and the court is not entitled to travel beyond the same. (12.) IT is admitted the rents for the months of March and September, 1990, november and December, 2001 and January to April, 2002 were not deposited with interest on the basis of the order of the application under Section 17 (1) of the (13.) W. B. P. T. Act and the suit was decreed as exparte. (12.) IT is admitted the rents for the months of March and September, 1990, november and December, 2001 and January to April, 2002 were not deposited with interest on the basis of the order of the application under Section 17 (1) of the (13.) W. B. P. T. Act and the suit was decreed as exparte. The said exparte order was vacated on contest on the basis of the application under Order 9 Rule 13 of the c. P. C. The defendant filed the application under Section 151 C. P. C. before the learned Civil Judge (Junior Division) for condonation of delay of depositing the rents of the above months and it was allowed on consent. The defendant did not deposit the rents for the said default months. Afterwards the suit was decreed for eviction on the ground of default for non-payment of rent. During the pendency of the appeal (T. A. 7 of 2007) the appellant/defendant filed the application under section 151 C. P. C. to condone the delay for depositing the rents. The said application was dismissed by the Learned Court below. (14.) IN the reported case law Gopal Shaw (supra) it was observed "where it appears that the default on part of the tenant occurred due to mistaken legal advice and the question of filing an appropriate application would not have arisen if the report for two months had been duly deposited by clerk of the defendants lawyers, the party should not be made to suffer or default or negligence of his lawyer. " (15.) IN the reported case law Shibu Chandra Dhar (supra) the Apex Court observed "the Court can condone delay and/or extend time in cases of small defaults or where default is for reasons beyond the control of the tenant if it has power to extend time. " (16.) IN the case of Sitala Debi (supra) it was observed "under Section 151 of the code of Civil Procedure the Court has always the inherent power to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the court. " (16.) IN the case of Sitala Debi (supra) it was observed "under Section 151 of the code of Civil Procedure the Court has always the inherent power to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the court. The exercise of this power has been extended to cover cases where a breach occurs, to the prejudice of party litigant and to the advantage of the other litigant, not due to any fault or negligence of the defaulting party but on account of an action or inaction of court on the principle Actus Curiae neminem gravabit. " (17.) IN the case of Subodh Lal Samaddar (supra) it was observed when no application was filed under Section 17 (1) of the W. B. P. T. Act the delay could not be condoned on the basis of the application under Section 151 of the Civil Procedure code. (18.) IN the present case the Learned Civil Judge (Junior Division) gave the opportunity to deposit rents for the default months as per application under Section 17 (1) of the W. B. P. T. Act. The defendant did not deposit the same. Subsequently the defendant was allowed to deposit the rents for the default months on the basis of the application under Section 151 C. P. C. The defendant did not do the same. In the appellate stage, the defendant filed the application under Section 151 C. P. C. to condone the delay for depositing the rents for the default months with a plea that he gave the entire rents to the clerk of his lawyer. The said application is rejected by the learned Appellate Court. But in the case of Shibu Chandra Dhar (supra), the Apex court also observed "even if the court has power to extend time, in case of willful, gross or deliberate default, the court may refuse to extend the time. (19.) THEREFORE, the reported decisions cited by the Learned Advocate on behalf of the petitioner do not help the petitioner to give any relief in the present Revisional application. (20.) ARTICLE 227 of the Constitution of India gives the High Court the power of superintendence over all courts and Tribunal throughout the territories in relation to which it exercises jurisdiction. (19.) THEREFORE, the reported decisions cited by the Learned Advocate on behalf of the petitioner do not help the petitioner to give any relief in the present Revisional application. (20.) ARTICLE 227 of the Constitution of India gives the High Court the power of superintendence over all courts and Tribunal throughout the territories in relation to which it exercises jurisdiction. But the jurisdiction under Article 227 of the constitution of India could not be exercised in the cloak of an appeal in disguise. (21.) IN the above circumstances there is no error in the findings of the order dated 22. 8. 2007 passed by the Learned Additional District Judge, Fast Track 3rd Court at sealdah in Title Appeal No. 7 of 2007. The revisional application fails and it is dismissed.