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2010 DIGILAW 1357 (CAL)

Dilip Hazra v. Jagatmaya Neogi

2010-11-25

PRASENJIT MANDAL

body2010
Judgment :- Prasenjit Mandal, J These three applications are at the instance of the defendants in the respective title appeals bearing nos.40 of 2002, 41 of 2002 and 42 of 2002 and are directed against the order no.22 dated March 29, 2006 passed by the learned Judge, City Civil Court, Second Bench, Calcutta. Since the common question of law has arisen in the three applications, they are disposed of by this common judgment. In order to know the fact of the cases, I am discussing in short the fact of the case of the Title Appeal No.40 of 2002. The plaintiffs/opposite parties herein instituted an ejectment suit for eviction on the ground of default and subletting against the petitioner in the Presidency Small Causes Court at Calcutta and the petitioner contested the said suit by filing a written statement challenging the materials allegations contained in the plaint. The suit was at the stage of peremptory hearing and on the date of peremptory hearing on February 28, 2002, the defendants/petitioners herein preferred an application for adjournment. That was considered and rejected by the learned Trial Judge. The defendants did not take part subsequently. As a result, the suit was decreed ex parte on that day. Being aggrieved, the defendant preferred a Title Appeal being No.40 of 2002. The said Title Appeal was allowed on January 31, 2004 directing the learned Trial Judge to dispose of the three ejectment suits analogously within two months from the date of receipt of the L.C.R. subject to payment of costs of Rs.1,000/- to each of the three cases within 15 days from the date of receipt of the record by the learned Court below, in default this order under appeal shall stand vacated and the order of the learned Court below shall stand. The learned lower appellate Court directed to send the L.C.R. along with a xerox copy of the judgment to the lower court at once. Since the other two suits were also tried analogously, the three appeals were disposed of by the said common judgment dated January 31, 2004. The defendant could not pay the said amount within the stipulated period on the ground that the conducting lawyer upon whom he relied did not intimate him of the receipt of the lower court record and later on, when he tendered costs to the landlord personally, it was refused. The defendant could not pay the said amount within the stipulated period on the ground that the conducting lawyer upon whom he relied did not intimate him of the receipt of the lower court record and later on, when he tendered costs to the landlord personally, it was refused. Ultimately on December 12, 2004 he sent the same to the landlord by a demand draft by courier service. It was duly accepted by the landlord. But by the impugned order, the learned Trial Judge rejected the application under Section 5 of the Limitation Act filed by the petitioner praying for extension of time to make deposit of costs to the plaintiffs after condoning the delay. Being aggrieved by the impugned order, this application has been preferred. Similar is the situation with regard to other two application. Mr. Sivaprosad Ghosh, learned Advocate appearing on behalf of the petitioner submits that the learned lower appellate court set aside the ex parte decree on January 31, 2004 and a direction was given to the petitioner to pay the costs of Rs.1,000/-to the plaintiff within 15 days from the date of receipt of the record, in default the order of the learned appellate Court shall stand vacated and the order of the learned Trial Judge shall stand. In fact, the record was received by the learned Trial Court on June 29, 2004. The petitioner was unaware of the date of receipt of the record by the learned Trial Judge. The petitioner entrusted one lawyer, but neither the Advocate nor the law clerk, Sri Biswajit Dey, informed the petitioner of the arrival of the lower Court record and as such, the petitioner was not in a position to comply with the order dated January 31, 2004 passed by the learned lower appellate Court. When the petitioner tendered the costs to the plaintiff, it was refused. Ultimately, the costs were sent to the plaintiff on December 22, 2004 by way of demand draft by the courier service. It was duly accepted by Sujata Neogi, wife of plaintiff/respondent no.5. So, the payment of the money had been made. It was encashed. So, the learned Trial Judge should have allowed the application under Section 5 of the Limitation Act condoning the delay in making the deposit. On the other hand, Mr. It was duly accepted by Sujata Neogi, wife of plaintiff/respondent no.5. So, the payment of the money had been made. It was encashed. So, the learned Trial Judge should have allowed the application under Section 5 of the Limitation Act condoning the delay in making the deposit. On the other hand, Mr. P. N. Palit, learned Advocate appearing on behalf of the opposite parties, submits that the petitioner did not comply with the orders of the lower appellate court. In fact, no money was tendered to the opposite parties and his clients did not get any amount of costs, as alleged from the defendants. Therefore, the learned appellate Court has rightly rejected the prayer of the petitioner. So, there is nothing to interfere with the impugned order. So, the point for consideration in these applications is whether the learned lower appellate court was justified in rejecting the application under Section 5 of the Limitation Act for condonation of delay in making the deposits. Upon hearing the learned counsel for the parties and on perusal of the materials on record, I find that the opposite parties filed the three suits for ejectment on the ground of default and sub-letting. In that suit, the respective petitioners were contesting by filing a written statement and the suit was at the stage of peremptory hearing. Then on February 28, 2002, the suit was decreed ex parte. Against such ex parte decree, the defendants preferred three separate appeals which were being heard analogously and disposed of by a common judgment dated January 31, 2004 directing the defendants to pay Rs.1,000/- as costs in each of the three suits within a period of 15 days from the date of receipt of the record by the learned Trial Court. Admittedly, the record was received by the learned Trial Court on June 29, 2004. The defendants did not make any payment within 15 days thereof. Their contention is that they relied on their conducting lawyer. But neither the lawyer or his law clerk informed them of the receipt of the record within time to make payment of costs. As such, the defendants could not make any payment within the time. When the defendants tendered costs to the landlord directly, the same were refused. Thereafter, on December 22, 2004 they tendered the costs by way of demand drafts sent by the courier service. As such, the defendants could not make any payment within the time. When the defendants tendered costs to the landlord directly, the same were refused. Thereafter, on December 22, 2004 they tendered the costs by way of demand drafts sent by the courier service. The defendants have filed the copy of deposit of the money for demand draft and the copy of the service of notice by the courier service as appearing at page no.32 & 33 respectively. From these papers, i.e., annexure B at page 32 & 33, it is clear that the defendants tendered money and they have stated so by way of affidavits. On the other hand, the landlord has stated that he did not receive any demand draft or money from the tenants and as such, the order dated January 31, 2004 passed by the learned appellate court was not complied with by the tenants. But, I find that the landlords did not specifically stated what are the contents of the letter he received on December 22, 2004. This being the position, it reveals that statement of the tenant in this respect should be accepted meaning thereby the demand draft was sent by the tenant by a courier service which was duly accepted on December 22, 2004 on behalf of the landlord as appearing at page no.32 of the application. This, I find that the three dates are very much relevant for arriving at a conclusion in this application. Date Fact January 31, 2004 Date of the passing of the order of the learned appellate court June 29, 2004 Date of receipt of the record by the learned Trial Court. December 22, 2004 Date of receipt of the demand draft by the landlord as costs of Rs.1,000/- in each suit. The defendants were to comply with the order of the learned appellate court dated January 31, 2004 within 15 days from the date of receipt of the record. But they failed to comply with such directions. On perusal of the order of the learned appellate court, it appears that the order is firm and peremptory directing that in default of making such payment the order of appeal shall stand vacated and the order of the learned Court below shall stand. During making submission of Mr. But they failed to comply with such directions. On perusal of the order of the learned appellate court, it appears that the order is firm and peremptory directing that in default of making such payment the order of appeal shall stand vacated and the order of the learned Court below shall stand. During making submission of Mr. Ghosh, appearing on behalf of the petitioner, submits that though the defendant got time for 15 days to make payment, he was totally unaware of the date of receipt of the record and as such he could not make payment. Such period of 15 days cannot be considered as firm and mandatory. Such period can well be extended in view of the provisions of Sections 148 & 149 of the Code of Civil Procedure. He also refers to the decision in the case of D. V. Paul Vs. Manishal Lalwani reported in AIR 2000 SC 3356 and thus, he submits that the Hon’ble Court could well extend the time limit of 15 days as per decision of the Hon’ble Apex Court. He has also referred to the decision of AIR 1961 SC 882 . I find that this decision is also discussed in the case of D. V. Paul (supra). Upon due consideration of the submission of the learned counsel of both the sides over the prayer for extension of the time to make deposit of costs, I find that there is no convincing material that the defendant was unaware of the date of the receipt of the record. As the conditional decree was passed, the defendant should have been very much vigilant with regard to the receipt of the record and if necessary he could have moved the appellate court or the learned Trial Court to see that the lower court record is received by the learned Trial Court immediately after passing of the record. There is no material to show that the defendant / tenant had taken any step for knowing when the record was received by the learned Trial Court or that he took necessary steps to have the said record by the learned Trial Court. Almost after 11 months from the date of passing of the order, the defendants tendered costs by way of demand draft. Almost after 11 months from the date of passing of the order, the defendants tendered costs by way of demand draft. According to the decision of D. V. Paul (supra) court can extent time provided there was a bona fide mistake on the part of the tenant or it was beyond his control or that he was taking necessary steps for compliance with the order of the lower appellate court. In the case of D. V. Paul (supra) the payment of compensation of Rs.1,000/- was directed to be paid within four months from the date of passing of the order on May 4, 2006 and the money was tendered by way of demand draft on August 24, 2006, just a few days after lapse of four months. Therefore, I find that in the said case, the tenant came within a reasonable time and such extension of time was very much permissible under Section 148 of the C.P.C. which clearly laid down that in an appropriate case, the court can grant extension of time of 30 days from the last date fixed for making payment. In the instant case, the last date of payment after receipt of the record appears to be on July 14, 2004. But actually it was tendered on December 22, 2004, i.e., after lapse of five months. Such delay of almost five months from the date of the last date cannot be said to be reasonable delay and it is beyond the period of 30 days that could be extended under the provisions of Section 148 of the C.P.C. Moreover, the tenant did not show any bona fide attitude in tendering the said money or immediately thereafter within the reasonable period. In such circumstances, it can well be presumed that the tenant has adopted a dilatory tactics to delay the proceedings of eviction against him and the latches on his part in tendering money at the very belated stage appear to be deliberately to frustrate the claim of the plaintiff. The defendants neither tendered the costs within time fixed by the learned appellate court nor tendered the same within a reasonable time as provided in Section 148 of the C.P.C. Therefore, the lapses on the part of the defendants could not be said to be bona fide at all. The defendants neither tendered the costs within time fixed by the learned appellate court nor tendered the same within a reasonable time as provided in Section 148 of the C.P.C. Therefore, the lapses on the part of the defendants could not be said to be bona fide at all. The power to grant extension of time to make payment is discretionary under Section 148 of the C.P.C. and such power is to be exercised in cases either there is a bona fide mistake, a situation is beyond the control of the parties to make payment or for the ends of justice. This power is not intended to be applied when there is a dilatory tactics or latches on the part of the defendants/tenants. Therefore, I am of the view that the decision of D. V. Paul (supra) will not help the petitioner in the instant situation. In that view of the matter, I hold that the learned Judge has rightly rejected the prayer for condonation of the inordinate delay. The petitioner cannot get the relief, as sought for. Accordingly, I am of the view that the tenant cannot get extension of time to deposit the costs, as prayed for, in the application. There is nothing to interfere with the impugned order. Accordingly, all the three applications fail to succeed and they are dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking. (Prasenjit Mandal, J.) Later: It appears that the relevant CAN applications are not available with the record. Therefore, one set of xerox copy of the same is kept with the record and it shall be considered for all purposes till the originals are received and tagged with the record.