Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 819 (CAL)

Md. Ismail Khan v. M. H. I. Khan

2011-06-22

PRASENJIT MANDAL

body2011
Judgment :- Prasenjit Mandal, J. This application is at the instance of the defendant and is directed against the Order No.128 dated September 22, 2010 passed by the learned Judge, Small Causes Court, 2nd Bench, Calcutta in Ejectment Case No.1264 of 2000 thereby rejecting an application under Section 151 of the C.P.C. The short fact is that the plaintiffs / opposite parties herein instituted a suit for ejectment being Ejectment Suit No.1264 of 2000 before the learned Judge, Small Causes Court, 2nd Bench, Calcutta against the petitioner for eviction on the ground of default. The petitioner entered an appearance and filed an application under Section 17(2) of the West Bengal Premises Tenancy Act, 1956 and that petition was disposed of by the order dated April 3, 2001 holding that the defendant was a defaulter in payment of rent since February 1992 to March 2001 at the rate of Rs.150/- per month and that the defendant was liable to pay the statutory interest. The defendant filed an application for recall of that order and that prayer was rejected. Thereafter, the defendant moved the Hon’ble High Court by filing a revisional application being C.O. No.1716 of 2010 and that revisional application was also rejected by the order dated August 4, 2010. Under the circumstances, the defendant wants to deposit the entire arrears of rent from February 1992 to March 2001 and also the rent from April 2001 to August 2010 along with statutory interest. It may be pointed out that the defendant has contended that at the initial stage, he deposited rent at the rate of Rs.95/- per month instead of Rs.150/- per month and the default was due to the wrong advice tendered by his lawyer. So, the defendant has prayed for permission to deposit afresh. That order was rejected by the impugned order. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. So, the defendant has prayed for permission to deposit afresh. That order was rejected by the impugned order. Being aggrieved, this application has been preferred. 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, I find that by the order no.54 dated March 3, 2001, the learned Trial Judge observed that the defendant / petitioner herein was a tenant under the plaintiffs at a monthly rent of Rs.150/- per month payable according to English Calendar Month and that the defendant was the defaulter in payment of rent since February 1992 to March 2001 at the rate of Rs.150 per month. And as such, the total rent due became Rs.16,550/- and the interest at the rate of Rs.8 1/3% per annum was to the extent of Rs.6,359/-. Thus, totalling the amount to be payable was Rs.22,859/-. The learned Trial Judge directed the defendant to deposit the said amount by five monthly equal installments commencing from April 2001. The defendant did not pay the rent and interest as directed. He filed an application for recall which was rejected. He moved the Hon’ble High Court by filing a revisional application being C.O. No.1716 of 2001 against rejection, which was disposed of holding that there was no ground for interference with the impugned order of rejection dated March 19, 2010. Thus, the defendant did not make deposit as per order of the Trial Court wherein the Trial Judge has held that the rent was at the rate of Rs.150/- per month and not at the rate of Rs.95/- per month. Even, the defendant did not comply with the directions of the Revisional Court to the effect that Subsequently, the defendant filed an application on January 13, 2010 praying for setting aside the earlier order dated December 16, 2009 to the effect that as to in whose paper, the rent was to be deposited with liberty to pay the arrears of rent in five equal monthly installments and to pay the current rent at the rate of Rs.150/- per month and the said application was rejected on contest by the order dated March 19, 2010. That order was challenged before the Hon’ble High Court in C.O. No.1716 of 2010 and by the order dated August 4, 2010, the learned Trial Judge rejected that revisional application, holding inter alia, that the tenant did not make any deposit as per order of the learned Trial Judge. Under the circumstances, the application under Section 151 of the C.P.C. was filed by the defendant on September 18, 2010 praying for deposit of total arrears of rent up to August 2010 at the rate of Rs.150/- per month and that application was rejected by the learned Trial Judge by the impugned order. Thus, the defendant / petitioner was given adequate opportunities to comply with the orders passed on the application under Section 17(2) of the 1956 Act. But he did not comply with the same. This is being the position, I hold that the defendant does not deserve further leniency. I am of the view that there is no scope of entertaining the application under Section 151 of the C.P.C. This application under Section 151 of the C.P.C. is totally meritless. The revisional application is, therefore, dismissed. The learned Trial Judge is directed to proceed with the suit in accordance with law. 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.