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2008 DIGILAW 78 (CAL)

Sudha Rani Roy v. Gopal Krishna Daw

2008-01-18

SADHAN KUMAR GUPTA

body2008
Judgment Sadhan Kumar Gupta, J. This Second Appeal has been preferred against the judgment and decree dated 27/2/1989 passed by the ld. Additional District Judge, 12th Court, Alipore in Title Appeal no. 399 of 1984 whereby the judgment and decree dated 29/3/1984 passed in T.S. no. 24 of 1983, by the ld. Munsif, 1st Additional Court, Alipore, 24 Parganas was affirmed. Case of the defendant/appellant is that the plaintiff/respondent filed the suit in the court below stating therein that the defendant/appellant was a tenant in respect of the suit premises at a monthly rental of Rs.25/- payable according to English calendar month. It was alleged that the defendant was a defaulter in paying the rent since the month of February, 1973 and as such, he was not entitled to any protection for eviction on the ground of default. Accordingly, a notice was sent to the defendant by the plaintiff/landlord asking him to vacate the suit premises and to deliver khas possession of the same after the expiry of the last day of December, 1976. In spite of service of said notice, as the defendant/tenant did not vacate the suit premises, so the plaintiff/landlord had to file the suit praying for eviction on the ground of default. The defendant/appellant contested the suit by filing written statement denying the material allegations. According to the defendant, no notice was served upon him. He also denied that there was any default in payment of rent. He prayed for dismissal of the suit. Upon the above pleadings, ld. Trial Court framed several issues and thereafter he was of the opinion that the defendant/tenant failed to deposit the rent and as such, he was not entitled to get any protection under Section 17(4) of the Act. Accordingly, the suit was decreed and the defendant/tenant was directed to vacate the suit premises. Being aggrieved and dissatisfied with the said judgment of the ld. Trial Judge, the defendant/appellant preferred an appeal. The ld. First Appellate Court also, by his impugned judgment, was pleased to affirm the judgment, as passed by the ld. Trial Judge. As the defendant/appellant is aggrieved by the said judgment, so he has preferred this Second Appeal. Being aggrieved and dissatisfied with the said judgment of the ld. Trial Judge, the defendant/appellant preferred an appeal. The ld. First Appellate Court also, by his impugned judgment, was pleased to affirm the judgment, as passed by the ld. Trial Judge. As the defendant/appellant is aggrieved by the said judgment, so he has preferred this Second Appeal. In connection with the Second Appeal, following substantial questions of law were framed: “(I) WhetherWWW decree of affirmance by the two Courts below is liable to sustain in law and the appellant is entitled to the benefit under Section 17(4) of the West Bengal Premises Tenancy Act? (II) Whether decree of affirmance on the ground of default is misdirected in law and perverse and consequently whether the judgment and decree of the Courts below are liable to be set aside?” On the basis of those questions, ld. Advocates for the parties made their respective submissions. It is the admitted position that the defendant/appellant was a tenant under the plaintiff/respondent in respect of the suit premises and the monthly rent was Rs.25/-. It is also the admitted position that the decree for eviction was passed against the defendant/tenant on the ground of default. Let us now see whether both the courts below were justified in passing such decree of eviction on the ground of default. There cannot be any dispute that in case of any default in paying the rent, a decree for eviction can be passed if the defendant/tenant fails to avail of the provisions of Section 17(4) of the Act. It appears from the lower court record that the defendant/tenant was a defaulter in paying the rent since 1973. The lower court record further shows that the defendant/tenant filed a petition under Section 17(1) and (2) of the Act. But the said petition was rejected by the court as it was barred by limitation. Against this order of rejection, the defendant/tenant moved the High Court in revision. But the High Court also observed that as there was delay in filing such petition in the court below and as there was no prayer for condonation of delay, so the ld. Trial Judge was perfectly justified in rejecting the petition filed under Sections 17(1) and 17(2) of the Act. But the High Court also observed that as there was delay in filing such petition in the court below and as there was no prayer for condonation of delay, so the ld. Trial Judge was perfectly justified in rejecting the petition filed under Sections 17(1) and 17(2) of the Act. So the fact remains that no order was passed in favour of the defendant/tenant as per the provisions of Section 17(1) and (2) of the Act and the matter reached its finality when the High Court also rejected the revisional application which was filed by the defendant/appellant against the order of the ld. Trial Judge. Ultimately, as the defendant/appellant failed to deposit the rent along with arrear, so an order was passed on 31/01/1984 under Section 17(3) of the Act by way of striking out the defence. Under such circumstances, when there was admittedly default in paying the rent for a considerable period and when no protection was given to the defendant/tenant as per the provisions of the Act, so the ld. Trial Court was pleased to hold that on the ground of default, the defendant/tenant was liable to be evicted. Ld. advocate for the defendant/appellant first of all argued that as per the provisions of Section 13(1) of the Act, the court is to hold that the defendant/tenant was a defaulter for two consecutive months within 12th months in order to pass a decree for eviction on the ground of default. But in the judgments of both the courts below there is no such finding. As such, the judgments, as passed by the courts below should be set aside. But if we look into the judgments of the courts below then it will appear that it was clearly mentioned that the defendant defaulted in paying the rent since 1973. As such, simply because there was no observation that the defendant defaulted in paying the rent for two consecutive months within a period of 12 months, that cannot be a ground for setting aside the judgments. It could be easily inferred from the judgments of the courts below that the defendant/tenant defaulted for two consecutive months within a period of 12 months and as such, in my opinion the ld. First Appellate Court was perfectly justified in confirming the judgment of the ld. It could be easily inferred from the judgments of the courts below that the defendant/tenant defaulted for two consecutive months within a period of 12 months and as such, in my opinion the ld. First Appellate Court was perfectly justified in confirming the judgment of the ld. Trial Court on the ground that the defendant/tenant was a defaulter in paying the rent and was not entitled to get any protection under Section 17(4) of the Act. Ld. Advocate for the appellant further argued that the order, as passed by the ld. Trial Judge under Sections 17(1) and 17(2) of the Act are not at all legal and valid in the eye of law. But it appears that the said order of rejection of the petition filed under Section 17(2) of the Act was challenged before the High Court in revision. Ld. Advocate for the appellant argued that those findings can also be challenged in appeal. In fact, according to him before the ld. First Appellate Court the defendant/tenant challenged that finding and the ld. First Appellate court did not pass any order in that respect. Accordingly, ld. Advocate for the appellant argued that it is a clear case of non-appreciation of the materials by the ld. First Appellate Court and so the judgment, so passed by him, should be set aside immediately. Undoubtedly the appellant can also challenge the validity of the finding passed under Section 17(2) and (3) of the Act at the appellate stage. But so far as the present case is concerned, it has already been mentioned that the said order, as passed under Section 17(2) of the Act was challenged before the High Court in revision and the said order was affirmed. When the High Court has affirmed the order of the court below, then perhaps it is not open for the ld. First Appellate Court to reappreciate the validity of the order in question. It will be against the spirit of law. Moreover, it appears that although, in the memorandum of appeal before the ld. First Appellate Court such grounds were taken, but from the judgment of the ld. First Appellate Court it appears that those grounds were not at all pressed at the time of argument. When the grounds, as taken in the memorandum of appeal, were not pressed by the concerned appellant, so it was not obligatory on the part of the ld. First Appellate Court such grounds were taken, but from the judgment of the ld. First Appellate Court it appears that those grounds were not at all pressed at the time of argument. When the grounds, as taken in the memorandum of appeal, were not pressed by the concerned appellant, so it was not obligatory on the part of the ld. First Appellate Court to consider those grounds out of his own particularly when the matter was set at rest by the order of the High Court. As such, this contention of the ld. Advocate for the appellant in this respect cannot be accepted. Ld. Advocate for the appellant further argued that before the First Appellate Court a petition was filed by the defendant/tenant praying for accepting the arrear amount of rent by way of condonation of delay. But the ld. First Appellate Court was pleased to reject such prayer. According to the ld. advocate for the appellant this rejection by the ld. First Appellate Court was not at all justified and in support of his contention, he has cited decision reported in 87 CWN 263 (Mohini Mirchandani vs. K.L.M. Royal Dutch Airlines). I have perused the said judgment. It appears that in that case while praying the condonation of delay the tenant in question deposited the entire arrear amount. As such, ld. Division Bench was of the opinion that when the entire arrear amount was deposited so the delay could have been condoned. But here the fact is completely different. Even before the First Appellate Court when such a petition was filed there was nothing to show that the defendant/tenant deposited the arrear amount of rent in order to show his bonafide. Even such application was not filed before the Trial Court for reasons best known to the defendant/appellant. Ld. Advocate for the appellant argued that West Bengal Premises Tenancy Act is a social legislation and it was enacted for giving protection to the tenants. Undoubtedly, the Act was enacted in the interest of the tenants. But that does not mean that legislature intended that the tenants would be protected at the cost of the landlords and due to the attitude of the tenants the landlords would be harassed unnecessarily. I have already pointed out that the rent was only Rs.25/- per month. Even that amount was not paid by the tenant for years together. But that does not mean that legislature intended that the tenants would be protected at the cost of the landlords and due to the attitude of the tenants the landlords would be harassed unnecessarily. I have already pointed out that the rent was only Rs.25/- per month. Even that amount was not paid by the tenant for years together. The intention of the tenant is very clear and we can safely presume that in order to harass the landlord, the defendant/tenant/appellant has taken various pleas at different times by way of filing such frivolous petition. I have got no hesitation to hold that there was no intention of the appellant/tenant to pay the arrear amount in favour of the landlord and if at this stage again, the matter is remanded back to the court below with a direction upon the tenant to deposit the entire arrear amount, as suggested by the ld. Advocate for the appellant, then I have got no hesitation to hold that it will cause serious prejudice to the plaintiff/landlord/respondent. The landlord/respondent cannot be allowed to suffer in this way unnecessarily at the whims of the defendant/tenant/appellant. In my considered opinion both the courts below were perfectly justified in passing the decree of eviction against the defendant and I find no reason whatsoever to interfere with this concurrent findings of the courts below. The questions of law, as framed, are answered accordingly. In the result, the appeal and the same is dismissed on contest but without cost.