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2011 DIGILAW 280 (CAL)

Manish Dogra v. Anima Rani Sinha

2011-02-28

DIPANKAR DATTA

body2011
JUDGMENT 1. THE opposite party instituted a suit (Eviction Case No.46 of 2004) in the 1stCourt of the learned Civil Judge (Junior Division), 24 Parganas (South), Alipore for eviction of the petitioner's father from the suit property and recovery of khas possession thereof as well as for mesne profit from September 1, 2003. 2. IT is the plaint case that the father of the petitioner had acquired separate flats in his name where he has been residing and possession of the suit property was parted with in favour of outsiders without obtaining the consent of the opposite party. Notice to quit dated July 14, 2003 was issued. However, possession was not vacated giving rise to the present suit. The petitioner's father was originally the sole defendant in the suit. On his death on February 26, 2005, the petitioner has been substituted in the suit as defendant on December 7, 2005, his mother having predeceased her husband. The petitioner is contesting the suit. 3. PRIOR to institution of such suit, the opposite party had instituted a suit for eviction of the father of the petitioner, the original tenant [Title Suit No. 513 of 1989 (renumbered Title Suit No. 10 of 1999)]. The suit was dismissed, and title appeal filed there against was also dismissed. 4. DURING progress of the present suit, the petitioner filed an application under Section 151 of the Code of Civil Procedure read with Sections 24, 39 and 44 of the West Bengal Premises Tenancy Act, 1997 (hereafter the 1997 Act) and Rule 20 of the West Bengal Premises Tenancy Rules (hereafter the Rules). It was averred therein that since his substitution, through oversight and due to accidental error or omission, the petitioner has been depositing monthly rent in the office of the 1stCourt of Civil Judge (Junior Division), before whom the suit is pending, in the name of his deceased father since March, 2005 and that an order ought to be made permitting correction of the said challans treating the rent to have been deposited by the petitioner, and not his deceased father. An application for condonation of delay under Section 5 of the Limitation Act was also filed together with such application. The applications were taken up for consideration by the learned Civil Judge. By order no. An application for condonation of delay under Section 5 of the Limitation Act was also filed together with such application. The applications were taken up for consideration by the learned Civil Judge. By order no. 53 dated June 28, 2010, the learned Civil Judge rejected the applications on the ground that he did not have any jurisdiction to pass any order for rectification of the same since the challans were not filed in his Court and in respect of the suit before him. It was observed by him that from the challans it transpired that those had been filed in respect of a separate suit (T.S. No. 10 of 1991) in the Court of the 1st Civil Judge (Junior Division) Additional Court, being the earlier suit filed by the opposite party against the petitioner's father seeking his eviction under the West Bengal Premises Tenancy Act, 1956 (hereafter the 1956 Act). As such, there was no question of condonation of delay. 5. THIS order is under challenge in the present application under Article 227 of the Constitution of India. 6. MR. Banerjee, learned Advocate for the petitioner, contended that the learned Judge grossly erred in not exercising jurisdiction vested in him by rejecting the application under Section 151 of the Code. According to him, although the deposit of rent through challans was made mentioning particulars of the earlier suit for eviction filed by the opposite party, the Court was one and the same. Photocopy of one of the challans was placed before the Court to contend that the challans having been accepted by the orders of the Court, the petitioner should not be made to suffer for a clerical mistake that was committed in the process inadvertently. He contended that the Court, in exercise of its inherent power preserved by Section 151 of the Code of Civil Procedure (hereafter the Code), was competent to correct the mistake but by refusing the prayer of the petitioner, had failed to exercise a jurisdiction vested in it, resulting in gross failure of justice. In support of his contention that correction as sought for could be allowed by the Court, Mr. Banerjee relied on the decisions in Shmt. In support of his contention that correction as sought for could be allowed by the Court, Mr. Banerjee relied on the decisions in Shmt. Sarupi v. Har Gian reported in AIR 1975 Punjab and Haryana 231, Nazar (Nazir) Singh v. Munshi Singh reported in AIR 1971 Punjab and Haryana 42, Chamanlal Rewashankar v. Vasant Jiwraj Thakkar reported in 89 Cal WN 1067, and Manmohan Kaur v. Surya Kant Bhagwandi reported in (1988) 4 SCC 698 . On the scope and extent of Section 151 of the Code, the Court was referred to the decision in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal reported in AIR 1962 SC 527 . 7. MR. Das, learned Advocate appearing for the opposite party, contended that the scheme of the 1997 Act must be taken into account while considering the present dispute. The petitioner was under an obligation to deposit monthly rent in Court by filling up the various columns of the challans correctly so that the opposite party, if she intended, could withdraw the same without being inconvenienced. However, the attempt made by the petitioner to apply at this belated stage for correction of the challans is clearly harassing and to deprive the opposite party the benefits that have accrued to her and the Court ought not to come to the aid of an indolent and tardy litigant. In support of his contention that the Court in exercise of inherent powers could not correct correction in rent deposit challans, reference was made to the Special Bench decision of this Court in Arun Brothers v. Sakti Prasanna Chatterjee reported in 87 Cal WN 70 and the Bench decision in Bengal Tent Factories Ltd. v. Amiya Prova Das Gupta reported in 64 Cal WN 342. The decision in Chamanlal Rewashankar (supra) was sought to be distinguished by him by contending that in that case there was no dispute that through a bona fide mistake of the advocates clerk, the deposits had been made in the name of one plaintiff and not in the name of the several plaintiffs jointly. That is not the situation here inasmuch as the opposite party has disputed the plea of the petitioner of making erroneous deposits inadvertently. The decision, is therefore, not applicable here. He, accordingly, prayed for dismissal of the application. 8. That is not the situation here inasmuch as the opposite party has disputed the plea of the petitioner of making erroneous deposits inadvertently. The decision, is therefore, not applicable here. He, accordingly, prayed for dismissal of the application. 8. HAVING heard learned Advocates for the parties and on perusal of the decisions that were cited at the bar, this Court has no hesitation in holding that the learned Judge erred in holding that he had no jurisdiction to order correction. The decision in Chamanlal Rewashankar (supra) is an authority directly on the point. The decision in Amiya Prova Das Gupta (supra) was noticed and distinguished. For the same reason, the decision in Arun Brothers (supra) would also have no application here since that case too related to correction of challans pertaining to deposits made before the Rent Controller and not a Court. 9. THE 1956 Act governed the eviction suit out of which the order under revision in Chamanlal Rewashankar (supra) arose. THE defendant's landlords, being the plaintiffs, were three in number. However, the defendant had been depositing rent in the Court inadvertently mentioning the name of only the first plaintiff. An application under Section 151 of the Code was filed by him with the prayer to allow correction of the challans by inserting the words "and others" after the name of the first plaintiff. THE Chief Judge of the City Civil Court at Calcutta by relying on the decision in Amiya Prova Das Gupta (supra) dismissed the application. THE order of dismissal was challenged in revision. Ultimately it was set aside by Hon'ble Justice M.M. Dutt (as His Lordship then was). THE law laid down in paragraph 8 reads as follows : "As has been stated already, the deposits in the instant case have been made not with the Rent Controller but in the Court under section 17(1) of the Act. THEre is a difference between deposit of rent with the Rent Controller under the provisions of Chapter IV of the Act and deposit of rent in Court under section 17(1) of the Act. Deposits made with the Rent Controller should conform to the provisions of Chapter IV of the Act. We are not, however, concerned with the provisions of Chapter IV of the Act inasmuch as the deposits have been made in Court. Deposits made with the Rent Controller should conform to the provisions of Chapter IV of the Act. We are not, however, concerned with the provisions of Chapter IV of the Act inasmuch as the deposits have been made in Court. It is not in dispute that through a bona fide mistake of the Advocate's clerk the deposits had been made in the name of the plaintiff No. 1 alone. While it is doubtful whether the Rent Controller can allow to amend the deposit challans, there can be no doubt that the Court in which the deposits are made has ample power to allow amendment of the deposit challans so that there can be no difficulty for the landlords to withdraw the deposits made. THE learned Chief Judge, in our opinion, misconceived the decision in Amiya Prova Das Gupta's case. In the first place, the deposits in that case were made with the Rent Controller and, in the second placet it was found that the misdescription in the name of the landlord was deliberately and dishonestly made, and that the story of mistake as set up by the defendants was false. In the instant case, apart from the fact that the deposits were in Court under Section 1 7(1) of the Act, there is no such finding against the defendant and, accordingly, Amiya Prova Das Gupta's case (supra) has no manner of application. ***" (underlining for emphasis by this Court) 10. THIS Court is ad idem with the decision in Chamanlal Rewashankar (supra), though it was rendered in connection with proceedings under the 1956 Act. If indeed a deposit has been made in Court in terms of Section 7(1) of the 1997 Act mentioning incorrect particulars on refusal by the landlord to accept rent when tendered in accordance with law, but there is material to hold that such incorrect particulars were mentioned due to bona fide errors, there is no reason as to why the trial Court should feel precluded in law to order correction thereof to enable the landlord to withdraw the amounts constituting rent. The dominant consideration in such case would be whether payment was tendered within the stipulated time or not, amounting to sufficient compliance with the requirements of law. The dominant consideration in such case would be whether payment was tendered within the stipulated time or not, amounting to sufficient compliance with the requirements of law. However, whether or not the error committed in the process of depositing rent is a bona fide one is also a Question, -a question of fact, which must exercise the consideration of the Court in each particular case. If it were not established that the error was bona fide but deliberately designed to harass the landlord to prevent him from withdrawing rent or otherwise, the trial Court would be justified in ordering rejection of the prayer. 11. TURNING to the facts of the present case, it appears that the learned Judge did not examine the merit of the petitioner's claim of an inadvertent error having been committed on the twin grounds assigned in support of the order of rejection, noticed above. The second ground that he did not have jurisdiction under Section 151 of the Code to order correction is unsustainable for the reasons discussed above. 12. INSOFAR as the first ground is concerned, the same is equally untenable. The suit property is located within the territorial limits of the District Court of 24 Parganas (South) at Alipore. Power to fix local limits of the jurisdiction of any Civil Court under the Bengal, Agra and Assam Civil Courts Act, 1887 has been conferred on the State Government in terms of Section 13 thereof. For administrative convenience, each Civil Judge (Junior Division) has been empowered to entertain and try suits arising within certain local limits of jurisdiction. The object of such arrangement is to distribute judicial business for early disposal keeping administrative convenience in mind but without affecting the territorial jurisdiction of the subordinate Court. It matters little that the earlier suit filed by the opposite party was not dealt with by the 1st Court of Civil Judge (Junior Division) but by the Court of the 1st Civil Judge (Junior Division), Additional Court. After all, a Court of competent jurisdiction, being part of the District Court of 24 Parganas (South) at Alipore, having the necessary territorial jurisdiction dealt with the earlier suit. That apart, the rent the petitioner has been depositing is a civil suit deposit, duly received by the Nezarath Department, District Judge's Court, South 24 Parganas at Alipore, and not by any other District Court. That apart, the rent the petitioner has been depositing is a civil suit deposit, duly received by the Nezarath Department, District Judge's Court, South 24 Parganas at Alipore, and not by any other District Court. These factors did not exercise the consideration of the learned Judge. In holding that he had no jurisdiction the learned Judge committed a grave jurisdictional error, which requires immediate correction. The order impugned stands set aside. The learned Judge shall proceed to rehear the applications for correction and condonation of delay filed by the petitioner and decide the same in accordance with law. In particular, the learned Judge shall examine whether the error committed in depositing rent with incorrect particulars was inadvertent or deliberate, and further the extent of inconvenience faced by the opposite party in withdrawing rent, if at all, that would justify rejection of the petitioner's application. It must be borne in mind "a Court will exercise an inherent jurisdiction to do that justice between the parties which is warranted under the circumstances and which the necessities of the case require" (see: Hukum Chand Baid v. Kamalanand Singh reported in ILR XXXIII Cal 927). 13. THE learned Judge is requested to expedite his decision in terms of this order without wasting any further time. 14. THE application stands allowed, without order for costs. Urgent photostat certified copy of the order, if applied for, be given to the parties at an early date.