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2012 DIGILAW 170 (CAL)

Satkari Ghoshal v. Tapan Kumar Chatterjee

2012-03-01

DIPANKAR DATTA

body2012
Judgment 1. THE petitioner is the defendant in a suit for eviction. An application under Section 7(2), West Bengal Premises Tenancy Act, 1997 filed by him has been disposed of by the learned trial Judge by her order dated October 29, 2011. THE learned Judge was of the opinion that the petitioner is a defaulter in payment of rent from December, 2004 till September, 2011 @ Rs.100/- per month in respect of the shop room occupied by him and, therefore, is in arrears in a sum of Rs.8,200/-. A direction was issued for payment of the said sum together with statutory interest by December 13, 2011. Liberty was also given to the petitioner to withdraw deposits made by him on account of rent for the period in question in the office of the Rent Controller in accordance with law. 2. THE said order dated October 29, 2011 is impugned in this revisional application under Article 227 of the Constitution of India. Mr. Das, learned senior advocate appearing for the petitioner, contended that the learned Judge grossly erred in arriving at the finding that the petitioner was a defaulter in payment of rent. 3. IT has been contended by Mr. Das that the petitioner was a tenant initially under Smt. Kamala Chatterjee (since deceased), then under Smt. Mrinalini Chatterjee (since deceased), thereafter under Smt. Kalyani Chatterjee (since deceased) and now he is a tenant under the opposite parties. There were two tenancies, one in respect of the western portion on the ground floor of premises no. 25, Sahitya Parishad Street, Kolkata 700 006 comprising two rooms, one kitchen, one store room and a bath and privy at a monthly rental of Rs.125/- per month payable according to English calendar month (used by the petitioner for residential purpose) and the other in respect of a shop room situated on the ground floor of the said premises at a monthly rental of Rs.100/- per month payable according to Bengali calendar month. 4. ACCORDING to him, the learned Judge in the trial Court erred in holding that the rent in respect of the suit shop room was payable according to English calendar month and that rent deposited by the petitioner for the period in question in the office of the Rent Controller according to Bengali calendar month are invalid deposits. 4. ACCORDING to him, the learned Judge in the trial Court erred in holding that the rent in respect of the suit shop room was payable according to English calendar month and that rent deposited by the petitioner for the period in question in the office of the Rent Controller according to Bengali calendar month are invalid deposits. Relying on the decisions of this Court reported in 61 CWN 467 (Carrara Marble and Tarrazo Co. Ltd. v. Charuchandra Guha), AIR 1971 Calcutta 383 (Rameshwar Chand and anr. v. Sadhan Chandra Dey and ors.), AIR 1974 Calcutta 362 (Lalbhai Ramjibhai v. A.V. Seth) and 87 CWN 5 (Saroj Kumar De and ors. v. Radharani Saha and ors.) it was contended that there being no agreement between the landlord and the tenant in respect of alteration of the month of tenancy from Bengali to English calendar and there being no evidence to the effect that rent for the broken period of the particular calendar month was either paid or adjusted and rent was paid from month to month according to English calendar, finding of the learned Judge that the rent in respect of the suit shop room was payable to the landlords according to English calendar is perverse and, therefore, the deposits that had been made by the petitioner in the office of the Rent Controller ought not to have been treated as invalid. Accordingly, it has been prayed that the order impugned be set aside. Per contra, Mr. Chakraborty, learned advocate for the opposite parties contended that the order impugned does not merit interference having regard to the limited grounds on which judicial review under Article 227 is available. He reminded the Court that findings in an order passed on an application under Section 7(2) of the Act are treated as tentative, which do not operate as res judicata at the stage of final hearing, unless of course a decision is given upon framing of an issue. He reminded the Court that findings in an order passed on an application under Section 7(2) of the Act are treated as tentative, which do not operate as res judicata at the stage of final hearing, unless of course a decision is given upon framing of an issue. In the case at hand, the learned Judge was not urged to give her decision on any issue and, therefore, regard being had to the nature of the order and particularly in view of the fact that the learned Judge while directing the petitioner to make payment of Rs.9200/- had granted liberty to him to withdraw the amount that he had deposited in the office of the Rent Controller, there has been no miscarriage of justice for which interference of this Court, in exercise of its supervisory jurisdiction, would be warranted. It has also been contended that the decision given by the learned Judge on the basis of the materials on record before her is a plausible one and that the revisional Court may not substitute its view for the view taken by the learned Judge, since it is not an absurd view. 5. ON merits, it has been contended that right from 1991 onwards rent had been tendered by the petitioner for occupation of the suit shop room according to English calendar month and rent receipts, which were issued acknowledging the same, were never disputed by him. In such circumstances, the finding of the learned Judge that by their mutual conduct the parties had agreed to alteration of the month of tenancy from Bengali calendar to English calendar cannot be faulted. It has also been contended that so far as rent for the broken period is concerned, it is open to the landlord not to insist on such payment and to waive it and, therefore, merely because payment for such broken period or adjustment thereof with rent payable has not been established, the same would not warrant a finding that there was no alteration of the month of tenancy upon mutual consent. 6. HE, accordingly, prayed for dismissal of the revisional application. I have heard learned advocates for the parties and perused the materials on record. I have also considered the decisions cited by Mr. Das. 7. 6. HE, accordingly, prayed for dismissal of the revisional application. I have heard learned advocates for the parties and perused the materials on record. I have also considered the decisions cited by Mr. Das. 7. ALL the decisions cited before me were rendered in exercise of the appellate jurisdiction of this Court, either while deciding a first appeal or a second appeal against the judgment and decree of the trial Court or the first appellate Court respectively. The considerations that necessarily arise while deciding an appeal are not the same in case of a revisional application under Article 227 of the Constitution where the remedy is discretionary. Neither was the trial Judge deciding any issue finally at the interlocutory stage of the suit nor is this Court exercising appellate jurisdiction. It would, therefore, not be proper to examine the propriety of the order impugned on the principles laid down by this Court in the cited decisions. Applicability of such principles may arise when the trial is concluded and the learned trial Judge is under obligation to decide the issues arising in the suit. 8. THE extent of the High Courts jurisdiction under Article 227 of the Constitution has been settled by the Supreme Court in a catena of decisions. One may refer to only two reported decisions of recent origin, viz. (2010) 8 SCC 329 : Shalini Shyam Shetty v. Rajendra Shankar Patil and (2010) 9 SCC 385 : Jai Singh v. Municipal Corporation of Delhi. It has been reiterated therein that power under Article 227 is to be exercised sparingly, on equitable principle, in exceptional cases when manifest miscarriage of justice is found to have occasioned, for, it is not open to the High Court to act as a bull in the china shop or at the drop of a hat. THE power is not exercised to correct a mistake of fact and of law but to keep the subordinate Courts within the limits of their authority. If the subordinate Court exceeds the bounds of its authority or passes a perverse order resulting in a failure of justice or acts in flagrant abuse of the fundamental principles of law and justice, the High Court would be justified in its interference. Bearing in mind the above well-settled principles, it would now exercise my consideration as to whether interference is warranted or not. 9. Bearing in mind the above well-settled principles, it would now exercise my consideration as to whether interference is warranted or not. 9. IN the present case, it appears that the learned Judge disbelieved the version of the petitioner that the month of tenancy in respect of the suit shop room was according to Bengali calendar. Considering the fact that from 1991 onwards till December, 2004 rent receipts were issued treating the month of tenancy according to English calendar, which was never disputed by the petitioner, the findings that there had been an alteration of the month of tenancy from Bengali to English calendar on mutual consent and, therefore, the deposits of rent in the office of the Rent Controller according to Bengali calendar were invalid are not perverse and appears to be within the limits of jurisdiction of the learned Judge. That apart, the findings arrived at by the learned Judge are essentially on factual aspects and even though a different conclusion could have been arrived at on the materials before her, that would not make the order vulnerable so as to merit interference in exercise of revisional jurisdiction under Article 227. An inferior Court is entitled to pass an order on an application according to its appreciation of the factual aspects vis-a-vis the legal principles. One may be inclined to hold that a different view that could be taken on the same set of materials is a better view than that taken by the subordinate Court but so long the view taken by the latter is not found to be absurd or suffering from lack of proportionality, it is not the function of the revisional Court to substitute its view. Again, the order may be correct or may not be correct, but each and every erroneous order is not liable to be interfered with under Article 227. It is only in cases where a stitch in time would save nine or where an erroneous order, if sustained, would cause irreparable loss to the party aggrieved or would result in irretrievable damage that interference may be made by the High Court. 10. I do not consider that any timely stitch at this stage of the proceedings is required or that irreparable loss or irretrievable damage would ensue to the petitioner if the impugned order were not interfered. The revisional application fails and is dismissed, without order for costs. 11. 10. I do not consider that any timely stitch at this stage of the proceedings is required or that irreparable loss or irretrievable damage would ensue to the petitioner if the impugned order were not interfered. The revisional application fails and is dismissed, without order for costs. 11. TIME to deposit the amount directed by the learned Judge is extended till March 31, 2012. Needless to observe, the liberty granted by the learned Judge to the petitioner for seeking withdrawal of the amounts deposited in the office of the Rent Controller is preserved. Photostat certified copy of this judgment and order may be furnished to the applicant at an early date.