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2009 DIGILAW 116 (CAL)

Arun Kumar Pusti v. Raj Narayan Thakur

2009-02-18

JYOTIRMAY BHATTACHARYA

body2009
Judgment : JYOTIRMAY BHATTACHARYA, J. (1) This second appeal is directed against the judgment of affirmance passed by the learned Civil Judge (Senior Division), 1st Court at Midnapore in other Appeal No.98 of 1996 affirming the judgment and the decree passed by the leaned Munsiff, 1st Court at Midnapore in other suit no.41 of 1982, at the instance of the plaintiffs/appellants. (2) Let me give a short background of this case leading to the filing of instant second hereunder: The plaintiffs filed a suit for eviction against the defendant/respondent herein on various grounds under the West Bengal Premises Tenancy Act, 1956, such as (i) default in payment of rent since January, 1980, (ii) causing acts of waste and damages resulting material deterioration of the condition of the suit premises, (iii) causing nuisance and annoyance to the plaintiffs and their neighbours, (iv) change of user of the suit premises without obtaining permission in writing from the plaintiffs, (v) reasonable requirement of the plaintiffs and the members of their family and (vi) for building and rebuilding, addition or alteration of the suit premises. The defendant appeared in the said suit and filed his written statement denying the allegations made out by the plaintiffs in their plaint. The grounds on which such eviction was sought for by the plaintiffs, were denied by the defendant categorically. The service of ejectment notice upon the defendant and/or the legality, validity and/or sufficiency thereof, was also challenged in the said written statement. (3) After entering appearance in the said suit, the defendant filed an application under Section 17(2) and (2A) of the West Bengal premises Tenancy Act, 1956. Though the relationship of landlord and tenant between the parties was not challenged by the defendant in the said application but the rate of rent and the period of default, were disputed by the defendant in the said application. The defendant stated that the rate of rent payable by the defendant in respect of the suit premises is Rs.30/- per month and not Rs.60/- as claimed by the plaintiffs. The defendant further stated that he deposited the rent in respect of the suit premises upto June, 1981. Thus, he disputed the plaintiffs claim to the effect that the defendant is a defaulter in payment of rent since Jaunary, 1980. The defendant further stated that he deposited the rent in respect of the suit premises upto June, 1981. Thus, he disputed the plaintiffs claim to the effect that the defendant is a defaulter in payment of rent since Jaunary, 1980. (4) The defendants said application was disposed of on contest vide Order No.149 dated 28.2.1986 by which the defendant was held to be a defaulter in payment of rent for the period from January, 1980 to June, 1981. The learned Trial Judge held that the rate of rent payable by the defendant is Rs.30/-per month. Accordingly, the learned Trial Judge directed the defendant to deposit the arrear rent of Rs.540 together with the statutory interest thereon in three equal monthly installments and first of such installments was directed to be paid by 15th March, 1986 and the subsequent installments within 15th of the successive months. (5) The plaintiffs were not happy with the said order and as such, he challenged the said order in revision before this Honble Court. The said revisional application which was registered as C.O.1435 of 1986 was allowed by this Honble Court on 30th April, 1989. This Honble Court held that the rate of rent payable by the defendant is Rs.60/-per month. Accordingly, the learned Trial Judge was directed by this Honble Court to recalculate the arrear rent payable by the defendant @Rs.60/-per month and the interest payable thereon at the statutory rate. (6) In terms of the aforesaid order of this Honble Court, the learned Trial Judge recalculated the arrear rent payable by the defendant together with the interest at statutory rate thereon after giving adjustment of the amount which the defendant had already deposited as per the order passed on the defendants application under Section 17(2) of the said Act. The learned Trial Judge, thus, held that a sum of Rs.3,870/-was payable by the defendant on account of arrear rent and a further sum of Rs.981.87 is payable by him on account of the statutory interest thereon. The defendant was permitted to deposit the said account in 29 installments. (7) Since the defendant was permitted to pay off the said dues by granting more installments than the number of installments he claimed for paying of his said dues, the plaintiffs filed an application for review being Judicial Misc. Case No.53 of 1989, but the said Misc. The defendant was permitted to deposit the said account in 29 installments. (7) Since the defendant was permitted to pay off the said dues by granting more installments than the number of installments he claimed for paying of his said dues, the plaintiffs filed an application for review being Judicial Misc. Case No.53 of 1989, but the said Misc. Case was ultimately rejected by the learned Trial Judge on 11th September, 1989 vide Order No.209. (8) The defendant, however, did not challenge the order being No.204 dated 10th August, 1989 passed by the learned Trial Judge whereby the arrear rent together with the interest payable by the defendant, was recalculated by the learned Trial Judge in terms of the order of this Honble Court as aforesaid. Thus, the defendant accepted the said order of the learned Trial Judge by which his application under Section 17(2) and (2A) of the said Act was finally disposed of by the learned Trial Judge. (9) The defendant, however, did neither comply with the said order regarding payment of installments as aforesaid nor he complied with the provision of Section 17(1) of the said Act. As a result thereof the defence of the defendant against eviction was struck out under Section 17(3) of the said Act by the learned Trial Judge by holding inter alia that the defendant not only failed to deposit rent for certain months during the pendency of the suit but also he failed to deposit the rent for some of the months in consonance with the provision contained in Section 17(1) of the said Act. (10) The defendant did not take any step further for regularizing those invalid deposits and/or for depositing the rent which had not been deposited by him for certain months. The defendant challenged the propriety of the order passed by the learned Trial Judge for striking out his defence against eviction before this Honble Court and the said revisional application which was registered as Civil Rule No.54 of 1990 was ultimately rejected on contest. The trial of the suit commenced in the aforesaid background. (11) The learned Trial Judge dismissed the said suit on contest by holding inter alia that the plaintiffs have failed to prove any of the grounds as pleaded by them in their plaint. The trial of the suit commenced in the aforesaid background. (11) The learned Trial Judge dismissed the said suit on contest by holding inter alia that the plaintiffs have failed to prove any of the grounds as pleaded by them in their plaint. Though the learned Trial Judge found that the defendant failed to comply with the provision of Section 17(1) of the said Act and his defence was also struck out under Section 17(3) of the said Act for non-compliance of the provision of Section 17(1) of the said Act and further though the learned Trial Judge held that the ejectment notice was duly served upon the defendant and the said notice was good, valid and sufficient but, still then, the learned Trial Judge refused to pass a decree for eviction as prayed for by the plaintiffs. (12) Being aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Judge, the plaintiffs/appellants filed an appeal before the learned 1st Appellate Court. The said Appeal was also dismissed on contest by the learned First Appellate Court with concurrent findings of fact. Though the learned First Appellate Court found that the defendant failed to comply with the provisions of Section 17(1) of the said Act and as a result thereof his defence was struck out under Section 17(3) of the said Act but, still then, the learned First Appellate Court dismissed the said appeal by holding that none of the grounds on which eviction was sought for, could be proved by the plaintiffs. (13) Be it mentioned here that the cross-objection which was filed by the defendant/respondent for not awarding cost against the plaintiffs while dismissing the plaintiffs suit for eviction, was also rejected by the learned First Appellate Court by holding inter alia that awarding of cost against a party is within the discretionary power of the Court and since in the instant case the suit was not filed by the plaintiffs either fraudulently or with an ulterior motive, the learned Trial Judge was justified by not awarding any cost against the plaintiff while dismissing the said suit on contest. (14) The propriety of the said judgment and decree of the said First Appellate Court is under challenge in this (15) Second Appeal before this Court. (14) The propriety of the said judgment and decree of the said First Appellate Court is under challenge in this (15) Second Appeal before this Court. (16) This Second Appeal was admitted for hearing by the Division Bench of this Honble Court, under the provision of order 41 Rule 11 of the Code of Civil Procedure. While admitting the said appeal the following substantial question of law was formulated by the Division Bench of this High Court :-"For that the suit for eviction being instituted on the grounds of default, reasonable requirement and/or other grounds, the Courts below should have decreed the suit on the ground of default under Section 13(1)(i) inasmuch as the respondent has been found to be a defaulter." This appeal was heard with reference to the aforesaid substantial question of law. (17) Mr. Chatterjee, learned Advocate, appearing for the appellant did not suggest for formulation of any other substantial question of law at the time of hearing of this appeal. Mr. Chatterjee very frankly submitted before this Court that he will not challenge the findings of the Courts below which were arrived at while disposing of the suit and/or First Appeal, with regard to the grounds of eviction urged by the plaintiffs in the said suit excepting the ground of default in payment of rent. (18) As such, this Court concentrates on the merit of this appeal on the said ground alone. Mr. Chatterjee submitted that when both the Courts below found that the defendant failed to comply with the provisions contained in Section 17(1) of the said Act and his defence against eviction was also struck out under Section 17(3) of the said Act, both the Courts below ought to have passed a decree for eviction against the defendant/respondent on the ground of default in payment of rent as the defendant committed default in payment of rent for the pre-suit period from January, 1980 to June, 1981 and the suit being filed on various grounds including the ground default in payment of rent. Mr. Chatterjee, thus, submits that proof of existence of one ground is sufficient enough to pass a decree for eviction under Section 13 of the West Bengal Premises Tenancy Act. Mr. Chatterjee, thus, submits that proof of existence of one ground is sufficient enough to pass a decree for eviction under Section 13 of the West Bengal Premises Tenancy Act. Thus, even though it is found that the plaintiffs have failed to prove the other grounds of eviction but, still then, the Court cannot deny the relief in favour of the plaintiffs when one of the grounds of eviction is proved by the plaintiffs. Mr. Chatterjee, thus, submits that since both the Courts below ultimately held that the defendant failed to comply with the provisions of Section 17(1) of the said Act, both the Courts below ought to have held that the relief under Section 17(4) of the said Act cannot be given to the defendant in the instant case. (19) In support of such submission Mr. Chatterjee relied upon the following two decisions : 1. In the case of Ram Bagas Taeria Vs-Ram Chandra Pal reported in AIR 1989 SC 426 . 2. In the case of Murari Mohan Mitra and Ors. Vs-Indra Narayan Kundu reported in AIR 1977 Cal 153 . (20) Thus, Mr. Chatterjee invited this Court to interfere with the judgment impugned in this appeal and to pass a decree of eviction against the defendant on the ground of default in payment of rent. (21) Mr. Bag, learned Advocate, appearing for the respondent very fairly submitted that the provision contained in Section 17(4) of the said Act makes it clear that if the defendant fails to comply with the provisions under Section 17(1) and Section 17(2) and Section 17(2A) of the said Act, the relief against eviction on the ground of default under Section 17(4) of the said Act cannot be extended to such defaulter tenant. Mr. Bag, thus, submitted that he cannot refute the submission of Mr. Chatterjee in this regard. Mr. Bag, however, submitted that instead of passing any decree for eviction on the ground of default straight way, some time may be granted to him for depositing the arrear rent which still remains unpaid so that the relief under Section 17(4) of the said Act can be availed of by him on deposit of such arrear rent together with the statutory interest thereof. (22) Heard the learned Counsel of the respective parties. Considered the materials-on-record including the impugned judgment of the Court below. (22) Heard the learned Counsel of the respective parties. Considered the materials-on-record including the impugned judgment of the Court below. (23) Fact remains that the suit for eviction was filed by the plaintiffs against the defendant on various grounds including the ground of default in payment of rent since January, 1980. It is also an undisputed fact that the defence of the defendant/respondent was struck out under Section 17(3) of the said Act for noncompliance of the provision of Section 17(1) of the said Act. It is also an undisputed fact that the defendant failed to prove that he is not a defaulter in payment of rent for the period from January, 1980 to June, 1981. Learned Trial Judge, while disposing of the defendants application under Section 17(2) of the said Act, also found that the defendant is a defaulter in payment of rent for the pre-suit period from January, 1980 to June, 1981. Such being the facts, this Court has no hesitation to hold that the defendant has committed default in payment of rent for more than two months within a period of 12 months and as a result the defendant cannot seek any protection against eviction on the ground of 13(1)(i) of the said Act. Section 17(4) of the said Act has clearly laid down that if a tenant makes deposit or payment as required by sub-Section (1), sub-Section (2) or sub-Section(2A), no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as it may deem fit to the landlord. In view of the said provision, this Court has no hesitation to hold that the defendant cannot get any protection against eviction under Section 17(4) of the said Act in a suit for eviction on the ground of default where the defendant has failed to comply with Section 17(1) of the said Act. While coming to this conclusion, this Court gets full support from the citations referred to by Mr. Chatterjee wherein it was held that if the tenant wants to avail of the benefit of the provision of Section 17(4) of the said Act, he should comply with the provision of Section 17(1) of the said Act. While coming to this conclusion, this Court gets full support from the citations referred to by Mr. Chatterjee wherein it was held that if the tenant wants to avail of the benefit of the provision of Section 17(4) of the said Act, he should comply with the provision of Section 17(1) of the said Act. (24) Even the extension of time for deposit of arrear rent as prayed for by Mr. Bag cannot be granted at this stage as this Court finds that the defendant did not take any such step before the learned Trial Judge before striking out his defence in the said suit. Accordingly, this Court holds that the defendant is a defaulter in payment of rent for the period from January, 1980 to June, 1981 and as such, he is liable to be evicted on the ground of default under Section 13(1)(i) of the said Act. (25) Before concluding, this Court keeps it on record that though the legality, validity and sufficiency of the ejectment notice and the due service thereof upon the defendant was not challenged by the respondent in his cross-objection before the First Appellate Court in spite of the fact that the findings on the said issue arrived by the learned Trial Judge were against him but, still then, since maintainability of the suit itself depends upon legality and validity of such notice, this Court has considered the pleadings and the evidence on record in this regard and holds that service of ejectment notice upon the defendant was duly proved by the plaintiffs by citing the postal peon as their witness being P.W.2 who duly proved that the said ejectment notice was duly tendered for service to the defendant who refused to accept the same. On scrutiny of the ejectment notice, the registration slip, the postal envelope this Court finds that the said notice was sent to the defendant at the proper address and the registration slip and the said postal envelope show that the postal envelope was sufficiently stamped and correctly addressed. As such by following the decision of the Honble Supreme Court in the case of M/s. Madan and Co. Vs- Wazir Jaivir Chand reported in AIR 1989 SC 630 , this Court holds that the service of ejectment notice was duly effected upon the defendant and the said notice is legal, valid and sufficient. As such by following the decision of the Honble Supreme Court in the case of M/s. Madan and Co. Vs- Wazir Jaivir Chand reported in AIR 1989 SC 630 , this Court holds that the service of ejectment notice was duly effected upon the defendant and the said notice is legal, valid and sufficient. (26) In the facts of the instant case, the judgments and decrees of the learned Courts below are set aside. The plaintiffs/ appellants are entitled to get a decree for eviction against the defendant/respondent on the ground of default in payment of rent. The defendant is, thus, directed to vacate the suit premises and to give vacant and peaceful khas possession thereof to the plaintiffs within two months from date and in default thereof, the plaintiffs are entitled to recover vacant and khas possession of the suit premises by evicting the defendant therefrom by executing the decree through Court in accordance with law. (27) This appeal, thus, stands allowed. (28) Let the Lower Court records be sent back to the Court below immediately. (29) Urgent xerox certified copy of this judgment, if applied for, be supplied expeditiously after complying with formalities.