Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 935 (CAL)

Monoj Shaw v. Debashis Saha

2010-08-06

KANCHAN CHAKRABORTY

body2010
Judgment :- Kanchan Chakraborty, J. 1) The challenge in this revision application is to the order no.12 dated 18.11.2005 passed by the learned Additional Rent Controller, Sealdah (learned 3rd Civil Judge, Junior Division) at Sealdah in Ejectment no. 146 of 2004 whereby the learned Rent Controller (Civil Judge) struck out the defense against delivery of possession of the petitioner/tenant under Section 7(3) of the W.B.P.T. Act, 1997. 2) Debasish Saha, the opposite party no. 1 herein, instituted an Ejectment Suit in respect of the suit premises against the present petitioner Monoj Shaw and two others on 12.10.2004 in the Court of learned Additional Rent Controller at Sealdah (3rd Civil Judge Junior Division). 3) The present petitioner Monoj Shaw as defendant no. 2 entered appearance in the suit on 8.12.2004. He filed an application under Section 7(2) of the Act on 27.1.2005 praying for ascertaining as to whether he was a defaulter in payment of rent since June 2002 and in case Court finds him a defaulter, direction be given him to pay the arrears of rent no ascertained in installments. He filed another petition under Section 5 of the Limitation Act together with that petition praying for condonation of delay in filing the petition under Section 7 (2) of the Act. The learned Court had taken up only the petition under Section 7(2) for hearing on 18.11.2005 and passed the following order:- “Both the sides file haziras defendant/O.P. filed W.O. against the petition under Order 39 Rule 7 Civil Procedure Code copies served. The petition under Section 7(2) W.B.P.T. Act is taken up for hearing. Heard both sides. Learned Advocate for the petitioner pointed out that the first Challan filed by the O.P. from June 2004 to December 2004 on 11.1.2005 and the Challan may be deemed as invalid. Considered. The first challan/deposit made by the opposite party is a invalid deposit. Hence the subsequent deposit are invalid as per law. So defence is strike out under Section 7(3) of the WBPT Act. Thus the petition under Section 7 (2) W.B.P.T. Act is disposed of.” 4) The present petitioner being the sole contesting defendant in the suit, filed this revision application challenging the correctness, legality and propriety of that order on the following grounds : a) that the learned Court failed to appreciate the provisions of Section 7(1), 7(2) and 7(3) of the W.B.P.T. Act, 1997. b) that the learned Court failed to appreciate that it was vested with a duty to ascertain arrear rent payable by the tenant and direct him to clear out the arrears of rent, if any, within the period specified in the Section 7(2); c) that the learned Court erred in declaring the deposits made by the petitioner with the Rent Controller invalid; d) that the learned Court failed to exercise its jurisdiction vested in him as Additional Rent Controller at Sealdah under the Act prevailing at that time. 5) The question to be answered in this revision application is whether the order passed by the learned Court is sustainable in law. 6) Mr. M.M. Verma, the learned Advocate appearing on behalf of the petitioner contended that the Trial Court is duty bound under Section 7(2) to ascertain the amount of arrears of rent, if any, and to direct the tenant to deposit the same within the period as specified under Section 7(2) of the Act. He contended that the learned Court failed to discharge the statuary duty cast on him and, as such, the order is liable to be set aside. In support of his contention Mr. Verma, learned Advocate referred to the decision in M/s B.P. Khemka Private Ltd. –Vs.- Birendra Kumar Rhamni ( AIR 1987 S.C. 1010 ). 7) Mr. Shiba Prasad Ghosh, the learned Advocate appearing for the opposite parties/landlord/plaintiff (hereinafter referred to as opposite party) contended that under the provisions of Section 7(1) of the Act, 1997, the tenant is under obligation to pay, subject to the provisions of Sub Section (2) of Section 7 to the landlord or to deposit with the Civil Judge all arrears of rent, calculated at the rate at which it was last paid. 8) He submitted that in view of earlier Act, the tenant could deposit rent at the agreed rate (i) in Court (ii) directly to the landlord and (iii) to the Rent Controller. But, in the Act 1997, the tenant has no choice but to deposit rent at agreed rate either in Court or with the landlord. He had taken me to the provisions of Section 7(3) and contended that a Court has to struck out defence against delivery of possession of a tenant in case the tenant fails to deposit rent according to the provisions laid down in Section 7(1) or Section 7(2) of the Act. He had taken me to the provisions of Section 7(3) and contended that a Court has to struck out defence against delivery of possession of a tenant in case the tenant fails to deposit rent according to the provisions laid down in Section 7(1) or Section 7(2) of the Act. Therefore, he contended, there was no incorrectness, illegality or impropriety in the order impugned. In support of his contention Mr. Ghosh relied on following decisions: i) Banwarilal Sharma Vs. Bajranj Lal Tiwari & Ors. (96 CWN 180). ii) Indian Bank Vs. Metallurgical Engineering Consutants (Indian) Limited (98 CWN 1145) iii) M/s Vinayak Conclave Private Limited Vs. Life Insurance Corporation & Ors.( AIR 1995 Cal. 113 ) iv) NEPS Micon Limited Vs. Magma Leasing Ltd. & Anr. ( 1999(1) CHN 617 ) and v) Sadhana Lodh Vs. National Insurance Company & Ors.(AIR 2003 SC 1561) 9) Mr. Shiba Prasad Ghosh, the learned Advocate appearing on behalf of the opposite parties referred to the above decisions in support of his proposition that a Court is not required to specify reasons in all the cases while passing an order. In fact excepting the case Banwarilal Sharma Vs. Bajranj Lal Tiwari & Ors.(96 CWN 180), all the cases referred to by him are related to that particular submission made by him. I do not find it necessary to discuss that issue in this revision application because that point has not been raised by the present petitioner in the grounds stated in his revision application. This apart, the proposition of Mr. Ghosh is not diputed. 10) The facts stated earlier indicate that the petitioner filed an application under Section 5 of the Limitation Act together with the petition under Section 7(2) of the W.B.P.T. Act praying for condonation of delay in filling the application under Section 7(2) of the Act. Strangely enough, the petition under Section 5 of the Limitation Act was not disposed of by the Court at any point of time. In fact, that petition was not taken up for consideration by the Court before the petition under Section 7(2) of the WBPT Act was considered on 18.11.2005. So, it can be assumed that the Court impliedly condoned delay in filling the petition under Section 7(2) of the Act. 11) I have carefully apprised the impugned order as well as all the orders passed by the Court in the Ejectment Suit no. So, it can be assumed that the Court impliedly condoned delay in filling the petition under Section 7(2) of the Act. 11) I have carefully apprised the impugned order as well as all the orders passed by the Court in the Ejectment Suit no. 146 of 2004 right from the filling of the suit. 12) It appears from materials placed before this Court that the parties have admitted that there existed a relation of landlord and tenant between the opposite party and the petitioner, that the rate of rent was Rs. 50/- per month in respect of the suit premises and that the tenant/petitioner deposited agreed rent for the period June 2004 to April 2005 with the Rent Controller after he entered appearance in the suit on 27.1.2005 but, failed to deposit admitted rent either in Court or with the landlord as envisaged in Section 7(1) of the Act 1997. 13) In order to appreciate the rival propositions of the learned Counsels for the parties and the respective cases of the parties, it would be expedient to look at the relevant provision of law. Sec-7. “When a tenant can get the benefit of protection against eviction, 1(a) On a (suit) being instituted by the landlord for eviction on any of the grounds referred to in section 6, the tenant shall, subject to the provisions of Subsection (2) of this section, pay to the landlord or deposit with (the Civil Judge) all arrears of rent, calculated at the rate at which it was last paid and up to the end of the month previous to that in which the payment is made together with interest at the rate of ten per cent per annum. b) Such payment or deposit shall be made within one month of the service of summons on the tenant or, where he appears in the (suit) without the summons being served upon him, within one month of his appearance. c) the tenant shall thereafter continue to pay to the landlord or deposit with (the Civil Judge) month by month by the 15th of each succeeding month, a sum equivalent to the rent at that rate. c) the tenant shall thereafter continue to pay to the landlord or deposit with (the Civil Judge) month by month by the 15th of each succeeding month, a sum equivalent to the rent at that rate. (2) If in any (suit) referred to in sub-section (1), there is any dispute as to the amount of the rent payable by the tenant, the tenant shall, within the time specified in that sub section, deposit with (the Civil Judge) the amount admitted by him to be due from him together with an application for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. On receipt of the application, (the Civil Judge) shall, having regard to the rate at which rent was last paid and the period for which default may have been made by the tenant, make, as soon as possible within a period not exceeding one year, an order specifying the amount, if any, due from the tenant and, thereupon, the tenant shall, within one month of the date of such order, pay to the landlord the amount so specified in the order. Provided that having regard to the circumstances of the case, an extension of time may be granted by the (the Civil Judge) only once and the period of such extension shall not exceed two months. (3) If the tenant fails to deposit or pay any amount referred to in sub-section (1) or sub-section(2) within the time specified therein or within such extended time as may be granted, (the Civil Judge) shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the (suit).” 14) A plain reading of the Section 7(1) makes it abundantly clear that the Sub Section (1) of Section 7 though Pari nateria with Sub sec. (1) of the Section 17 of 1956 Act has now been couched in three clauses, namely, Clauses (a), (b) and (c). (1) of the Section 17 of 1956 Act has now been couched in three clauses, namely, Clauses (a), (b) and (c). The Clause (a) stipulates that in an eviction suit being instituted by the landlord on any of the grounds referred to in Section 6, the tenant shall, subject to the provisions of Sub Section (2) of this section, pay to the landlord or deposit with the Civil Judge all arrears of rent calculated at the rate at which it was last paid and up to the end of the month previous to that in which the payment is made together with interest @ 10% per annum. The Clause (b) enjoins upon the tenant to make the payment or deposit within one month of the service of summons on the tenant, or where he appears in the proceedings without summons being served upon him within one month of his appearance. Clause (c) enacts that the tenant shall thereafter continue to pay to the landlord or deposit with the Civil Judge month by month by the 15th of each succeeding month a sum equivalent to the rent at that rate. In the earlier act the Sub section (1) of Section 17, this was all included in the sub section itself without specifying three obligations of the tenant in three clauses as is being done now. 15) Under Sub Section (1) of Section 17 there were three modes of payment or deposit, namely : (i) deposit in Court, (ii) deposit with the Controller and (iii) payment to the landlord direct. However, in the present Act originally the deposit was required to be made before the Rent Controller or with the landlord direct. This is because originally the eviction proceeding was required to be initiated before the Rent Controller. But in view of West Bengal Premises Tenancy (Amendment) Act 2006 the landlord has to file a civil suit for eviction before the Civil Judge having jurisdiction and the Section 7(1) as it now stands gives two options to the tenant, namely (1) to deposit the amount equivalent to rent with Civil Judge before whom the Civil suit has been filed or (2) to the landlord direct. Under this amended Section 7 there is no provision for deposit of rent under Section 7(1) of the Act to the Rent Controller. Under this amended Section 7 there is no provision for deposit of rent under Section 7(1) of the Act to the Rent Controller. 16) There is no obligation under Sub Section (1) of Section 7 for the Civil Judge to adjudicate or determine as to the correctness of the amount deposited by way of rent or to pass any direction in respect thereof. If there is no proper compliance of Sub Section (1) of Section 7, the tenant may be liable for the consequences of Sub Section (3) of Section 7 for his defence against the delivery of possession being struck out. 17) Section 7(1) uses the expression the “tenant shall”. While interpreting the word “shall” in Section 6 and 7(1) of the W.B.P.T Act 1956, it has been held that the word “shall” in Section 17(1) of the Act is not intended to be mandatory. The Court in its discretion may condon default in deposit rent. However, such discretion is to be exercised judiciously and not arbitrarily. 18) The copy of the petition under Section 7(2) filed by the petitioner in the learned Trial Court is found available with the record. The averments at paragraph 3 (n) and (0) at page 4 are following :- (n) That thereafter the Opposite Party No. 2 tendered the rent for the month of June, 2004 to the petitioner/plaintiff and he refused to receive the same. Thereafter the rent for the month of June, 2004 was sent through Postal Money order, which was refused by the Petitioner/Plaintiff. (o) That thereafter the Opposite Party No. 2 started depositing the rent with the Rent Controller, Barrackpore since the month of June, 2004 and he has been depositing the monthly rent regularly in every month. 19) A careful reading of the averments above made in paragraph 3 at page 4 of the petition under Section 7 (2) of the Act filed by the petitioner in the learned Trial Court indicate clearly that the petitioner made out a case that he tendered rent for the month from June 2004 to the plaintiff and on his refusal to accept the same, the petitioner sent rent for four months of June 2004 through money order but, that was also refused by the plaintiff. Only thereafter, he started depositing rent with Rent controller. 20) In Gaya Prasad Kar Vs. Only thereafter, he started depositing rent with Rent controller. 20) In Gaya Prasad Kar Vs. Subrata Kumar Banerjee (AIR 2005 SC 4348); the Hon’ble Apex Court, basing on B.P. Khemka’s case ( AIR 1987 SC 1010 ) was pleased to observe that failure on the part of the tenant to deposit rent under Section 7(1) of the Act must be willfull default. 21) In the case in hand, the averments made in the paragraph 3 (n) and (o) of the petition under Section (2) filed by the petitioner were not taken into consideration by the learned Trial Court. At the time the suit was filed, the West Bengal premises Tenancy (Amendment) Act, 2006 did not came into force. At that time the eviction proceeding was required to be initiated before the Rent Controller. The copies of order allowing the petitioner to deposit rent by the Rent Controller have been placed before this Court where from it is clear that the petitioner was allowed to deposit rent with the Additional Rent Controller, Barrackpore. 22) The caption given in the petition under Section 7(2) filed by the petitioner in the learned Court indicates also that it was filed in the Court of learned Additional Rent Controller, Sealdah (3rd Civil Judge, Junior Division). The amendment Act 2006 came into force thereafter. Therefore, it can not be said that the petitioner intentionly refrained from depositing rent according to the provisions laid down of Section 7(1) of the Act 1997. The Hon’ble Apex Court in Gaya Prasad Kar Vs. Subrata Kumar Banerjee (AIR 2005 SC 4348)(supra) was pleased to hold that the provisions of the Act 1997 vest the Court with ample authority to extend the time for making deposit the rent in case of default. The view of the Hon’ble Apex Court in B.P. Khemka’s case (supra) can also be referred to in this context. I reiterate that the learned Trial Court did not take the petition under Section 5 of the Limitation Act filed by the petitioner together with the petition under Section 7(2) of the Act into consideration and did not also consider the averments made in paragrpah 3(n) & (o) at page of the petition under Section 7(2) of the act. I reiterate that the learned Trial Court did not take the petition under Section 5 of the Limitation Act filed by the petitioner together with the petition under Section 7(2) of the Act into consideration and did not also consider the averments made in paragrpah 3(n) & (o) at page of the petition under Section 7(2) of the act. 23) In such circumstances, while the Section 7 (2) of the Act casts a duty on the Court to determine the rent payable by the tenant and make an order for payment of that rent within the period not exceeding one year, it would have been proper for the learned Trial Court not to struck out the defence against delivery of possession of the petitioner/tenant straight way as it has been done by the impugned order without determining the arrears of rent in view of Sub Section (2) of Section 7 of the Act especially when nonpayment of rent was unintentional. 24) The fact of the case in Banwarilal Sharma Vs. Bajranj Lal Tiwari & Ors.(96 CWN 180) cited by the Mr. Ghosh, learned Advocate for the opposite parties and that of this case in hand are different and, as such, distinguishable. In that case the tenant was supposed to pay rent either in the Court or with the Rent Controller or with the to the landlord straight way. In the case in hand, the suit was filed before the Additional Rent Controller (3rd Civil Judge) and the tenant paid rent for the period of June 2004 to April 2005 with Rent Controller and that was done according to the order passed by the Rent Controller. 25) To sum up what I could gather from the materials on record and the rival contentions of the learned Counsel is that the petitioner/tenant initially tried to deposit rent with the landlord and when he was refused, he tried to pay the rent through money order. He deposited the rent with Rent Controller when the money order was refused and that too according to the order of the Rent Controller. He filed no petition under Section 7(1) of the Act 1997, which, however, is not a must. I have already stated that originally the eviction proceeding was required to be initiated before the Rent Controller prior to West Bengal Premises Tenancy Amendment Act 2006. He filed no petition under Section 7(1) of the Act 1997, which, however, is not a must. I have already stated that originally the eviction proceeding was required to be initiated before the Rent Controller prior to West Bengal Premises Tenancy Amendment Act 2006. The petitioner/tenant made no willful default in payment of rent and he had no intention to evade the payment of rent. Therefore, taking everything into consideration, it appears to me that the learned Court ought to have disposed of the petition under Section 5 of the Limitation Act first of all or together with the petition under Section 7(2) of the W.B.P.T. Act 1997, as amended by the Act 2006, for determination of the arrears of rent and direct the petitioner/tenant to pay the same, if any, within a specified time. 26) In the conspectus of the facts and circumstances above, the revision application succeeds. 27) The order impugned is set aside. 28) The learned Court is directed to take up the petition under Section 7(2) together with the petition under Section 5 of the Limitation Act and dispose of the same in accordance with the established principle of law. Since the matter is pretty old, it is desirable to dispose of the petition and the suit as expeditious as possible. It is made clear that while disposing of the petition Under Section 5 of the Limitation Act and Under Section 7(2) of the W.B.P.T. Act, 1997, the learned Court should not be influenced by any observation made in this order. 29) The revision application is disposed of. 30) No order as to costs is passed. Urgent Photostat certified copy of the judgment, if applied for, be handed over to the parties on compliance of necessary formalities.