Sandhya Rani Pakhira v. Jogananda Alias Jagannath Banerjee Alias Pathak
2011-01-18
PRASENJIT MANDAL
body2011
DigiLaw.ai
JUDGMENT PRASENJIT MANDAL, J. 1. CHALLENGE is to the order no.5 dated December 3, 2003 passed by the learned District Judge, Howrah in Civil Revision Case No.71 of 2003 thereby affirming the order dated February 28, 2003 passed by the learned Civil Judge (Junior Division), Seventh Court, Howrah in Title Suit No.128 of 1994. 2. THE short fact is that the predecessor-in-interest of the opposite party instituted a suit for eviction of the petitioners from the premises in suit on the ground of default and reasonable requirement. In that suit, the defendants/petitioners herein entered appearance and they are contesting the said suit. They filed an application under Section 17(2) and (2A) of the West Bengal Premises Tenancy Act, 1956 for determination of arrears of rent, if any and for instalment. That application was disposed of by an order dated July 5, 1999 directing the petitioners to pay the arrears of rent as well as current rent. They did not comply with such directions and for that reason, the opposite party filed an application under Section 17(3) of the 1956 Act and that was allowed for non-compliance of the order passed on the petition under Section 17(2) of the 1956 Act. THE learned Trial Judge has also rejected the application under Section 151 of the Code of Civil Procedure for condonation of the delay. A revisional application was preferred against the said order of the learned Trial Judge before the learned District Judge and then the learned District Judge rejected the said revisional application holding that there was no ground for interference with the order. Being aggrieved, the petitioner has come up with this application. Now, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record as well as the written argument submitted by the petitioner, I find that it is a case of gross negligence on the part of the petitioners. The rent for the premises was at the rate of Rs.25/- per month according to Bengali calendar month beside other nominal charge for electricity, etc. 3. THE suit for eviction was filed on the ground of default and reasonable requirement. THE petitioners filed an application under Section 17(2) and (2A) of the 1956 Act.
The rent for the premises was at the rate of Rs.25/- per month according to Bengali calendar month beside other nominal charge for electricity, etc. 3. THE suit for eviction was filed on the ground of default and reasonable requirement. THE petitioners filed an application under Section 17(2) and (2A) of the 1956 Act. That application was disposed of on July 5, 1999 directing the petitioners to pay the arrears of rent by instalments and also to pay the current rent. 4. BUT, surprisingly the first instalment of Rs.435/- along with current rent for the month of Asharh, 1406 B.S. to Kartick 1406 B.S. at the rate of Rs.25/- per month totaling Rs.560/- was paid on December 14, 1999. Such belated payment of instalment and the payment of current rent for five months at a time instead of monthly payment within the period as ordered, is not permissible. The first deposit is invalid. The subsequent deposits by instalments have been made thereafter month by month along with the current rent. When the application under Section 17(3) came for hearing before the learned Trial Judge, the petitioners filed an application under Section 151 of the C.P.C. for condonation of the delay. The Court held that it is an admitted position that the defendants failed to pay the deposit as per directions passed in the order on the petition under Section 17(2) and (2A) of the 1956 Act. 5. SO far as the contention of the delay under Section 151 is concerned, the learned Trial Judge has recorded that no supporting documents were filed in support of the contention raised by the defendants in the application under Section 151 of the C.P.C. In fact, the circumstances have not been explained at all as to what actually prevented the defendants from making deposits in time as per orders of the Court. Not only that the petition under Section 151 of the C.P.C. was neither verified nor supported by any affidavit. SO, the application under Section 151 of the C.P.C. was rejected. Under the circumstances, the application under Section 17(3) of the 1956 Act was allowed. 6. MR. Mahendra Prasad Gupta, learned Advocate appearing on behalf of the petitioner, has submitted that the striking out defence is not mandatory and as per decision of the B.P. Khemkas case striking out defence is not mandatory but directory.
Under the circumstances, the application under Section 17(3) of the 1956 Act was allowed. 6. MR. Mahendra Prasad Gupta, learned Advocate appearing on behalf of the petitioner, has submitted that the striking out defence is not mandatory and as per decision of the B.P. Khemkas case striking out defence is not mandatory but directory. So, Court should have taken a liberal approach in disposing of an application under Section 17(3) of the 1956 Act along with the application under Section 151 of the C.P.C. The legislature has taken a liberal view in enacting the said Act of 1956 and for that reason, the provisions of Section 17(4) are provided. Thus, he submits that this Court should take liberal approach in allowing the instant application. Lastly, MR. Gupta submitted that this Court should direct the learned Trial Judge to hear out the application under Section 17(3) of the said Act and the application under Section 151 of the C.P.C. afresh. In support of his contention, MR. Gupta has referred to the decision reported in (2004) 8 SCC 14 , (2002) 3 SCC 617 , AIR 1988 SC 602 . This Court is exercising revisional jurisdiction and here I find that both the Courts below have arrived at a concurrent finding that the petitioners did not comply with the orders passed by the Court on the application under Section 17(2) and (2A) of the 1956 Act and their findings are based on materials on record. This being the position, I am of the view that this revisional Court should not interfere with such concurrent findings of the two courts below. The petitioners have failed to avail the benefits in Section 17(2), (2A) and (b) of the 1956 Act. Consequently, they have come within the mischief of Section 17(3) of the 1956 Act. There is a just cause for rejection of the application under Section 151 of the C.P.C. 7. THIS being the position, the submission of Mr. Gupta for sending back the matter for re-hearing by the learned Trial Judge cannot be entertained. Accordingly, it is held that this application is meritless. It is, therefore, 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.