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2011 DIGILAW 1069 (CAL)

Gopal Das Agarwal v. Durga Bala Pramanick

2011-08-10

DIPANKAR DATTA

body2011
JUDGMENT 1. THE defendant in T.S. No.301-110/2000, a tenant under the landladies/plaintiffs, impugns in this application under Article 227 of the Constitution of India dated November 12, 2010 an order dated August 9, 2010 passed by the learned Additional Civil Judge (Junior Division), 3rd Court at Alipore, South 24 Parganas whereby an application under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 (hereafter the Act) dated May 11, 2009 filed by the landladies/plaintiffs was allowed and August 25, 2010 was fixed as the date for peremptory hearing of the suit. 2. IN the application under Section 17(3) of the Act, the landladies referred to the order dated November 1, 2006 passed by the trial Court whereby the application under Section 17(2) of the Act filed by the tenant was disposed of and subsequent non-compliance by him in relation to depositing arrears of rent by instalments, as directed, and non-deposit of current rent from December, 2006 onwards, and prayed for an order that his defence against delivery of possession be struck off. The petitioner in his written objection took the plea that he is paying rent month by month in favour of the landladies as civil deposit and probably there is no due; however, he added that if any amount were found to be due, he is ready and willing to liquidate the same by instalments as the trial Court considers fit and proper. He, accordingly, prayed for rejection of the application. The learned Judge after looking into the order dated November 1, 2006 found that although the petitioner had been ordered to pay Rs.2,200/- in two instalments within December, 2006, he had deposited such amount together with interest only on April 22, 2010 and there was gross default on his part; therefore, the landladies were justified in their contention that the tenant has made himself liable to have his defence against delivery of possession struck off leading to the order impugned herein. 3. MR. Choudhury, learned advocate representing the petitioner, contended that the learned Judge acted illegally and with material irregularity in allowing the application under Section 17(3) of the Act. 3. MR. Choudhury, learned advocate representing the petitioner, contended that the learned Judge acted illegally and with material irregularity in allowing the application under Section 17(3) of the Act. According to him, defence of a tenant against delivery of possession is not to be struck off in a routine manner whenever there is a default on his part to comply with an order under Section 17(2) of the Act; a discretion is vested in the trial Court to pass appropriate order after considering the pros and cons of each particular case. He contended that on facts and in the circumstances of this case, the learned Judge exercised discretion erroneously thereby causing gross miscarriage of justice without appreciating that it was not a case of non-payment of the arrears but a case of belated payment, i.e. a default in the technical sense. Referring to the decision of the Supreme Court in B.P. Khemka (P) Ltd. v. Birendra Kumar Bhowmick : (1987) 2 SCC 407 , he contended that the word "shall" in Section 17(3) of the Act has been judicially interpreted to read "may" and, therefore, Section 17(3) is a directory and not a mandatory provision. Reliance was also placed on the decisions of learned single Judges of this Court in Pasupati Nath Auddya v. Shiba Ch. Dhar : 1998 (II) CHN 213 , Amit Guha v. Amal Kumar Majumdar : (2001) 3 CAL LT 421 (HC) and Harendra Nath Baidya v. Smt. Padma Rani and ors. : 2004 (2) CLJ (Cal) 109, where following B.P. Khemka (supra), the learned Judges ruled that delay could be condoned either under Section 151 of the Civil Procedure Code (hereafter the Code) or Section 5 of the Limitation Act and that the length of the period of default is not the guiding factor but what is relevant for condonation of delay is the reasonableness of the grounds urged by the tenant that prevented him from depositing the rent within the prescribed period, and if sufficient reason is furnished explaining the delay, the trial Court ought to accept the same without passing any order jeopardizing the interest of the tenant who had complied with the trial Court"s direction, albeit belatedly. He continued to submit that the Act being a beneficial piece of legislation is intended to protect tenants like the petitioner, and the learned Judge ought to have liberally construed the provision and erred in not so construing, thereby rendering the petitioner defenceless in the suit. 4. MR. Choudhury next contended that the petitioner has been carrying on business from the suit property and in the event consequences flowing from the order impugned are allowed to take effect, his livelihood would be at stake. Reliance was placed on another decision of the Supreme Court in Gopal Chandra Ghosh v. Renu Bala Majumdar (Smt) and ano. : (1994) 2 SCC 258 , in support of the argument that technicalities would have no place when the Court is seized with a human problem, as the one at hand, relatable as it is to the earning of the petitioner"s livelihood and in such a case, the heart of the matter counts and not the fa"ade of it. He urged the Court to view the problem at hand in such manner as would advance the intendment of the Act. Referring to the objection taken in the counter affidavit filed by the opposite parties to the effect that even current rent after the order dated November 1, 2006 had not been paid by the petitioner, Mr. Choudhury placed before the Court the supplementary affidavit dated March 3, 2011 filed by the petitioner. He endeavoured to impress the Court that rent for each and every month has been deposited by the petitioner in the trial Court by civil deposit challans. Anticipating further objection from the side of the opposite parties that the civil deposit challans do not reflect that rent was deposited mentioning the names of both the landladies and in some challans even the name of the opposite party no.1 has not been correctly spelt, it was contended that such of the challans which contain errors ought not to be viewed too seriously so as to disentitle the petitioner to the protection that the Act envisages, for, no attempt was made by the opposite parties to withdraw the rent deposited and, therefore, it cannot be contended by them that they were disabled from withdrawing rent because of the errors in the challans. It was urged that the Court ought to ascertain whether the conduct of the petitioner is bona fide or not and in this connection reliance was placed by Mr. Choudhury on the decision of a learned single Judge of this Court in Chamanlal Rewashankar and ors. v. Vasant Jiwraj Thakkar and ors. : 89 C.W.N. 1067, wherein rent deposited by the tenant in the name and to the credit of one landlord, although there were several landlords, was not viewed adversely so as to deny the tenant the protection afforded by the Act. Attention of the Court was drawn to paragraph 9 of the decision where it was ruled that the plaintiff no.1, being one of the landlords, could easily withdraw the amounts deposited by the defendant and if withdrawn, the same would tantamount to payment to the other plaintiffs or landlords. 5. THE Bench decision of this Court in Santi Nath Sha v. Santosh Kumar Chatterjee : AIR 1991 Calcutta 302 was also cited for the proposition that the trial Court should have given an opportunity to the tenant to contest the plaintiffs" claim in the light of the challans already filed by him showing deposit of rent. To the same effect is the decision of a learned single Judge of this Court in Sabitri Shaw v. Kalyan Kumar Bose and ors. : 97 C.W.N. 1124, wherein the matter was remanded for denovo disposal of the application under Section 17(3) of the Act after consideration of the tenant"s explanation for the delayed deposit. 6. IN course of his submission, Mr. Choudhury also cited the Bench decision of this Court in Ruby Banerjee v. M/s. Mechanico Enterprises Pvt. Ltd. : 1987 (II) CHN 1 for the proposition that each time the legislature has taken up the matter into its hands, the law is made more and more in favour of the tenant and prejudicial to the landlord’s rights under the general law of landlord and tenant. He, accordingly, prayed that the impugned order be set aside and the application under Section 17(3) of the Act reconsidered by the trial Court. 7. MR. Das, learned senior advocate representing the opposite parties was firm in his objection to any order of interference and contended that by his very conduct, the petitioner was not entitled to any relief. He, accordingly, prayed that the impugned order be set aside and the application under Section 17(3) of the Act reconsidered by the trial Court. 7. MR. Das, learned senior advocate representing the opposite parties was firm in his objection to any order of interference and contended that by his very conduct, the petitioner was not entitled to any relief. According to him, the petitioner had filed applications under Section 17(1) and (2) of the Act immediately after entering appearance in the suit on May 12, 2000. The application under Section 17(1) was disposed of on June 2, 2000 whereas the application under Section 17(2) could be disposed of only on November 1, 2006, i.e. 6" years since institution of the suit on April 17, 2000, after several adjournments had been taken by the petitioner. Despite being under an obligation to pay the arrears of rent amounting to Rs.2,200/- in two instalments by the end of December, 2000, the petitioner did not consider it necessary to comply with the Court's order. Not having paid a farthing towards the arrears of rent, the opposite parties had no other option but to file the application under Section 17(3) of the Act on May 11, 2009. The trial Court called upon the petitioner to show cause why his defence shall not be struck off. The petitioner did not respond. By an ex-parte order dated July 8, 2009, the application under Section 17(3) of the Act was allowed. On September 17, 2009, the petitioner prayed for recall of such order by filing an application under Section 151 of the Code. The said order was recalled by order dated December 10, 2009 and the petitioner again allowed time to file his written objection. Despite such opportunity, he did not in his written objection explain why he could not pay; on the contrary, it was his stand that there were no arrears. The amount of Rs.3,470/- (Rs.2,200/- + Rs.1,270/- on account of interest) was paid by the petitioner on April 22, 2010 during the pendency of the Section 17(3) application and that too without obtaining leave of the trial Court. The amount of Rs.3,470/- (Rs.2,200/- + Rs.1,270/- on account of interest) was paid by the petitioner on April 22, 2010 during the pendency of the Section 17(3) application and that too without obtaining leave of the trial Court. Since no explanation whatsoever had been furnished in the objection to the Section 17(3) application as to why the petitioner could not make payment of the sum ordered by the trial Court on November 1, 2006, the learned Judge was justified in allowing the said application and strike off the defence of the petitioner against delivery of possession. 8. IT was also contended by Mr. Das that apart from a solitary sentence in paragraph 5 of the present application that due to unavoidable circumstance the petitioner could not make payment as directed by the trial Court, no other explanation is forthcoming from his side which would enable the Court to hold in his favour. Referring to the decision in B.P. Khemka (supra) and the decisions of this Court following the former cited by Mr. Choudhury, it was contended that the said decisions do not lay down the law that the discretion vested in a learned Judge to condone the delay could be exercised although there is no explanation worthy of acceptance. IT was also contended by him that in B.P. Khemka (supra), the default pertained to belated payments of rent for two months and not for non-payment of arrears of rent and was, therefore, a default in the technical sense, which is not the case here. He relied on the decision of the Supreme Court in Mrs. Manju Choudhary and ano. v. Dulal Kumar Chandra : (1988) 1 SCC 363 , wherein the tenant having defaulted in depositing rent by 5 days was considered a defaulter and the order of the trial Court striking off his defence, since affirmed by the High Court in revision, was not interfered on the ground that in case of unexplained delay, it is the duty of the trial Court to strike off the defence. Next, Mr. Das referred to the challans of civil deposit by which the petitioner deposited rent for the months commencing from January, 2007. According to him, the petitioner despite being aware of the names and particulars of the landladies deliberately mentioned the name of the opposite party no.1 and deposited rent to her credit. Next, Mr. Das referred to the challans of civil deposit by which the petitioner deposited rent for the months commencing from January, 2007. According to him, the petitioner despite being aware of the names and particulars of the landladies deliberately mentioned the name of the opposite party no.1 and deposited rent to her credit. Not only that, the name of the opposite party no.1 had been wrongly described as Durga Prasad Pramanick in some of the challans, which amounts to changing the gender of the opposite party no.1. According to him, in view of the decisions of learned single Judges of this Court in Tapal Mitra and ors. v. Santilata Mitra and ors. : 85 C.W.N. 837, C. Muralee Dharan alias Dhasam v. Sm. Arati Nath : 87 C.W.N. 260 and Provabati Chakrabarty v. Satyendra Nath Chatterjee and ors. : 1978(1) CLJ 629, the said deposits are invalid deposits and cannot enure to the benefit of the petitioner. 9. ANSWERING the contention raised by Mr. Choudhury relying on the decision in Gopal Chandra Ghosh (supra), it was contended that there, the delay, if at all, was of two days and, therefore, the law laid down therein must be appreciated having regard to the facts of that particular case. Also, he contended that the said decision ought not be understood as an authority for the proposition that whenever a tenant who might ultimately lose his livelihood in the process of the delay not being condoned resulting in his defence being struck off and the suit decreed against him, technicalities are to be given a go-bye in view of the human problem of loss of livelihood. 10. THE decision in Chamanlal Rewashankar (supra) was sought to be distinguished by him by apprising the Court of its special facts. It was submitted that there an affidavit had been filed by the clerk of the advocate concerned owning his mistake in not correctly describing the names of the landlords while filling up the civil deposit challans, which titled the scales in favour of the tenant. Mr. Das concluded by submitting that the petitioner had been successful in delaying a decision on the suit for over a decade and that no indulgence ought to be shown to such recalcitrant litigant who does not care to abide by the law and to comply with the orders of Court. Mr. Das concluded by submitting that the petitioner had been successful in delaying a decision on the suit for over a decade and that no indulgence ought to be shown to such recalcitrant litigant who does not care to abide by the law and to comply with the orders of Court. He prayed for dismissal of the application with costs. 11. THIS Court has heard learned advocates for the parties and perused the materials on record together with the decisions cited at the bar. 12. AFTER giving serious thought to the respective submissions, the Court regrets its inability to come to the rescue of the petitioner although there can hardly be any dispute that the learned Judge of the trial Court mechanically passed the order impugned, oblivious of the settled legal position that he had a discretion to condone the delay and refuse the prayer of the opposite parties to strike off the defence of the petitioner if there were on record at least some explanation for the belated deposit. This Court is of the considered view that the decision of the Supreme Court in Manmohan Kaur v. Surya Kant Bhagwani : AIR 1989 SC 291 , considered in the decision in Sabitri Shaw (supra), provides a complete answer to the issue raised in this application. There, the special leave petition arose out of an order passed by the Ranchi Bench of the Patna High Court confirming striking off the defence of the appellant in a suit for eviction governed by the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1983 on the ground of personal necessity and change of the nature of business by the appellant, etc. The appellant committed default in payment of rent for the months of November and December, 1986. The earlier decisions of the Supreme Court in Ganesh Prasad Sah Kesari v. Lakshmi Narayan Gupta : AIR 1985 SC 964 , B.P. Khemka (supra) and Mrs. Manju Choudhary (supra) were considered therein. The Court speaking through Hon"ble Sabyasachi Mukharji, J. (as His Lordship then was) ruled that in case of a genuine mistake on the part of the tenant, the trial Court has the jurisdiction to extend the time and to treat the deposit subsequently made as properly made. Certain observations in the said decision, which to the mind of this Court would clinch the issue raised herein, read as follows: "6. Certain observations in the said decision, which to the mind of this Court would clinch the issue raised herein, read as follows: "6. the court must from a proper perspective judge the question whether the delay or failure to deposit the rent in terms of order under S. 13 of the Act has been properly explained and if that delay has been properly explained, then the court has a discretion to excuse the delay, but if the delay has not been properly explained then the court has no discretion. In our opinion, such a construction would be a harmonious rendering of the language of S. 13 to the claim for justice in each particular case. Therefore, the court should consider whether the delay has been reasonably explained or not. In construing that question the court in the scheme of the administration of justice must take a constructive and purpose-oriented approach. If it does, then the element of discretion comes into play though not in the form of directory or mandatory provision but in considering whether the delay was properly explained or not. 8. Therefore, the interest of justice which is the paramount justification of the administration of justice with the purpose of the Act, compels us to hold that if the delay is explained then there is no delay and the court in such a case cannot strike off the defence. If on the other hand, the delay is not explained or the explanation is one which is not acceptable to the court, then the court must strike out the defence and there is no discretion." (emphasis supplied) 13. IT has been rightly contended by Mr. Das that the written objection filed by the petitioner does not furnish any explanation at all why the arrears of rent could not be deposited by the petitioner within December, 2006. IT is also noticed that there is no explanation furnished in the present application except for a vague statement that due to unavoidable circumstance, the petitioner could not make payment. In the absence of any plausible explanation being furnished, exercise of discretion by the Court and to treat the belated payment as proper and in substantial compliance with the order disposing of the Section 17(2) application would amount to abuse of power, which would be contrary to the concept of justice. In the absence of any plausible explanation being furnished, exercise of discretion by the Court and to treat the belated payment as proper and in substantial compliance with the order disposing of the Section 17(2) application would amount to abuse of power, which would be contrary to the concept of justice. Although the provisions of the Act are intended to afford protection to the tenants, it is not to be overlooked that the Act also regulates the rights and duties of landlords and tenants alike. Exercise of discretion would be called for provided some explanations were furnished, not in a case where no explanation is furnished. The facts brought on record and the conduct of the petitioner belies the case of he being vigilant. After all, law is for the vigilant and not the dormant. The beneficial provisions cannot be stretched to unreasonable limits to come to the aid of the petitioner. In the present case, the arrears were deposited on April 22, 2010 after the application under Section 17(3) of the Act was allowed by order dated July 8, 2009, since recalled by the subsequent order dated December 10, 2009. The conduct of the petitioner clearly smacks of an intention to drag the proceedings. Following the decision in Manmohan Kaur (supra), it has to be held that no case for exercise of discretion vested in the trial Court as also this Court had/has been set up. 14. THE revisional application stands dismissed, without costs. Since the suit is more than a decade old, the trial Court shall make sincere endeavor to decide it within 6 months from date of receipt of a copy of this judgment and order. Urgent photostat certified copy of this judgment and order, if applied for, may be furnished to the applicant at an early date.