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2012 DIGILAW 433 (CAL)

Gora Chand Pal v. Nomita Mondal

2012-05-10

SOUMEN SEN

body2012
JUDGMENT SOUMEN SEN, J. 1. The instant application is for review of an order passed on 12th July, 2011 in disposing of C.O.2654 of 2008. 2 In order to appreciate the scope of the said review application, some of the relevant facts are mentioned hereinbelow:- The petitioner is a defendant in an eviction suit instituted by one Santosh Kumar Mondal being Title Suit No.229 of 1994. The petitioner received the summons on 8th July, 1994 and entered appearance on 25th July, 1994. Subsequently, it is claimed that a written statement was submitted on 24th July, 1996. It is alleged by the petitioner that the original plaintiff continued to accept rent till his death that is upto December, 2003, either by cash or through money order and his wife being the opposite party No.1 used to issue rent receipts and the money order receipts on behalf of her husband. It is claimed that she was receiving rents in respect of both the tenancies since 8th March, 1994 and after the death of the original plaintiff, the opposite parties, namely, present landlords proceeded with the suit. However, one Soma Mondal, claiming to be the daughter-in-law, being wife of the predeceased son of the original plaintiff, started demanding the rent from the petitioner claiming herself as owner of the property, although, she was never made a party to the suit. All of a sudden the opposite parties filed an application under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 on December 14, 2004 praying for striking out of the defence against delivery of possession of the petitioner alleging non-compliance of provisions of Sections 17(1) and 17(2) of the West Bengal Premises Tenancy Act, 1956. 2. The petitioner contested such proceeding by filing written objection on 28th April, 2006 in which it has been categorically stated that the rent has been paid all along to the original plaintiff till his death i.e. 26th December, 2003. The opposite parties failed to prove themselves as heirs of the original plaintiff and, accordingly, not entitled to receive any rent. The petitioner contested such proceeding by filing written objection on 28th April, 2006 in which it has been categorically stated that the rent has been paid all along to the original plaintiff till his death i.e. 26th December, 2003. The opposite parties failed to prove themselves as heirs of the original plaintiff and, accordingly, not entitled to receive any rent. On 2nd January, 2007 it was contended that the said application was heard by the learned Court below on the points of law and the matter was adjourned but on the next date, the learned Advocate for the petitioner was surprised to find from the cause list that the application filed under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 had been rejected and the suit was fixed for preemptory hearing. However, from the certified copy of the said order on the following date it was found that the petitioner under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 was allowed on contest and the defence of the petitioner had been struck out under Section 17(3) of the West Bengal Premises Tenancy Act. In the aforesaid circumstances, a civil revisional application was filed challenging the Order No.86, dated 2nd January, 2007. 3. In another suit being Title Suit No.228 of 1994 instituted by the original plaintiff against the petitioner, having tenancy in respect of the ground floor of the said building, a similar order was passed which has resulted in another civil revisional application was filed being C.O.No.2653 of 2008. On 12th July, 2011, C.O.No.2654 of 2008 was taken up for consideration and the said application was dismissed on merit. In considering the said application Section 17(3) of the said Act was considered which reads as follows: - "17(3). If a tenant fails to deposit, or pay any amount referred to in sub-section (1) or sub-section (2) within the time specified therein or within such extended time as may be allowed under clause (a) of subsection (2A), or fails to deposit or pay any instalment permitted under clause (b) of sub-section (2A) within the time fixed therefor, the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit." 4. It is recorded in the order dated 17th July, 2011 that from the materials on record it appears that a proceeding was initiated by the substituted plaintiffs after some delay inviting the Court to exercise its power under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 on the ground of non-compliance with the provisions of Section 17(1) and Section 17(2) of the said Act of 1956. In answer to the said petition under Section 17(3), the defendant filed an objection which was found to be completely devoid of any particulars. In considering the merit of the objection raised by the petitioner, this Court considered Paragraphs 2 and 3 of the written objection which was filed by the petitioner before the Court below which are reproduced hereunder:- "2. That the opposite party being the defendant/tenant has all along paid the monthly rent directly to the said plaintiff/landlord, month to month by money order, till death of the said plaintiff/landlord. 3. That the confusion arose after the death of the said Santosh Kumar Mondal, as the present plaintiffs/petitioner substituted their name in the suit without disclosing themselves as only heirs of the deceased plaintiff, Santosh Kumar Mondal and one Soma Mondal demanded the rent claiming herself as daughter-in-law of said Santosh Kumar Mondal being the wife on his deceased son." This Court disbelieved the statement made in the said written objection the opposite party became "confused" inasmuch as the date when such opposite party first became confused was also not disclosed. It was further held that it is also not clear what prevented the "confused tenant/petitioner" to invoke the provisions of Section 17(1) and Section 17(2) and deposit the rent in the Court so that the said tenant gets the benefit of protection against the eviction under Section 17 of the West Bengal Premises Tenancy Act, 1956. In order to appreciate such contentions reference may be made to Section 17(1) and Section 17(2) of the said Act, relevant portions whereof are set out hereinbelow:- "17(1). In order to appreciate such contentions reference may be made to Section 17(1) and Section 17(2) of the said Act, relevant portions whereof are set out hereinbelow:- "17(1). On a suit or proceeding being instituted by the landlord or any of the grounds referred to in Section 13, the tenant [shall, subject to the provisions of sub-section (2), within one month] of the service of the writ of summons on him, [or where he appears in the suit or proceeding without the writ of summons being served on him, within one month of his appearance] [deposit in court or with the Controller or pay to the landlord] an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have mae default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate or eight and one-third percent, per annum from the date when any such amount was payable up to the date of deposit, and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate. 17(2). If in any suit or proceeding referred to in sub-section (1) there is any dispute as to the amount of rent payable by the tenant, the tenant shall within the time specified in sub-section (1), deposit in court the amount admitted by him to be due from him together with an application to the Court for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable." 5. This Court also held that in an application under Section 17(2) if it is found that the tenant has not complied with Section 17(1) and Section 17(2), the Court can strike out the evidence under Section 17(3) without an application filed by the plaintiff/landlord (Muralee Dharan Vs. Sm. Arati Nath, 87 CWN 260). This Court also held that in an application under Section 17(2) if it is found that the tenant has not complied with Section 17(1) and Section 17(2), the Court can strike out the evidence under Section 17(3) without an application filed by the plaintiff/landlord (Muralee Dharan Vs. Sm. Arati Nath, 87 CWN 260). It was held in the said decision that when the Court is satisfied that the tenant admittedly did not comply with Section 17(1) or Section 17(2) then the Court can strike out the defence without any formal application being filed by the plaintiff/landlord and there is no limitation for filing an application under Section 17(3) since the said application can be filed at any time during the pendency of the suit. (Paritosh Kumar Ghose Vs. Smt. Saraswati Nandi, AIR 1980 Cal 280 ) 6. In considering the said application, it was found that there has been no real challenge to the issue that the substituted plaintiffs have any locus standi to file the application under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 or to claim the rent. During the hearing of this application, the learned Counsel appearing on behalf of the substituted plaintiffs relied upon an application filed by the petitioner under Order 39 Rule 1 and 2 in which the following averments have been made: - "1. The petitioner is the tenant/defendant in the instant suit instituted by the landlord/plaintiff who died on December 26, 2003, for eviction on the ground of reasonable requirement, defaulter, nuisance and annoyance and for addition and alteration of the suit premises. 2. That on death of the plaintiff, one Namita Mondal and one Nandita (Sarkar) claiming themselves as heirs of the deceased plaintiff being widow and daughter respectively filed an application, praying for substitution of their name in the suit in place of the deceased defendant, which is pending for hearing, on June 18, 2004. 4. That subsequently an amendment was made in plaint which amendment was made long after the date of order and not by the plaintiff as it is under challenge. 8. That the widow and daughter of the original deceased plaintiff have taken responsibility to continue the suit and as such they are also responsible for illegal actions done and continued on behalf of the plaintiff (deceased), if any, who may be restrained by an order in the instant suit." 7. 8. That the widow and daughter of the original deceased plaintiff have taken responsibility to continue the suit and as such they are also responsible for illegal actions done and continued on behalf of the plaintiff (deceased), if any, who may be restrained by an order in the instant suit." 7. This application was filed during the pendency of the application for substitution which was, however, allowed subsequently in presence of the petitioner. It is argued on behalf of the petitioner that a dispute as to existence of the landlord and the tenant between the parties does not affect the question of rent payable by the tenant to a particular landlord and in view of the matter in a case such a dispute has been raised, the same has to be decided by the proper Court and the defence against the delivery of possession cannot be struck out if such dispute is a bona fide one (Biswanath Roy Vs. Annapurna Roy, 65 CWN 149). It was argued on behalf of the petitioner that the Civil Judge has to decide the issue or relationship of landlord and tenant before it passes an order and the existence of landlord and tenant relationship is a very foundation of an eviction petition under the rent control statute (Rajendra Tiwary Vs. Basudeo Prasad and Anr., 2002(1) SCC 90 ). 8. From the materials disclosed, it appears that initially in the application filed under Order 39 Rule 1 and 2, some disputes were raised with regard to the locus of the substituted plaintiff to accept the said rent. However, such plea is lost, once such substitution was allowed. The said order of substitution was passed subsequently and in presence of the petitioner. It is not in dispute that the substitution of the present plaintiffs in place and stead of the original plaintiff has not been challenged. The obligation to pay rent also does not cease in view of the fact that there has been no demand other than the substituted plaintiffs with regard to the payment of rent. The present petitioner acknowledged that the present substituted plaintiffs are claiming to be the owners and landlords of the premises in question. Even in this review application nothing has been paid to the original plaintiff by money order or to the substituted plaintiffs. The present petitioner acknowledged that the present substituted plaintiffs are claiming to be the owners and landlords of the premises in question. Even in this review application nothing has been paid to the original plaintiff by money order or to the substituted plaintiffs. There is no material on record to show that the rent was tendered at all to the original plaintiff or to the substituted plaintiffs as claimed by the petitioner and in absence of such evidence the trial Court was justified in rejecting such application. 9. The original plaintiff instituted the suit on 13th June, 1994 and died on 26th December, 2003. The application for substitution was filed on 19th February, 2004 and the same was subsequently allowed. Thereafter, an application was filed on 14th December, 2004 by the substituted plaintiffs under Section 17(3) of the West Bengal Premises Tenancy Act, 1956, in view of the fact that the defendant/tenant has failed to comply with Section 17(1) of the West Bengal Premises Tenancy Act, 1956. It is not in dispute that the order allowing substitution has been challenged and the plaint has been amended pursuant to such order of substitution. The said order for substitution was allowed in the presence of the petitioner. Although, in the application filed under Section 17(3) of the said Act, a reference was made to Section 17(2) but the circumstances under which an application could be filed under Section 17(3) makes it clear that if the tenant fails to deposit or pay any amount referred to in sub-section (1) or sub-section (2) within the time specified therein or within such extended time therein as may be allowed, Court shall order the defence against delivery of possession to be struck out and shall proceed with the filing of the suit. 10. As mentioned hereinabove, the petitioner even at this stage had failed to produce any document to show that there has been a proper tender of rent either to the original plaintiffs or to the substituted plaintiffs after the suit has been instituted. 11. If the petitioner is correct in contending that the petitioner as tenant had paid all along monthly rent directly to the said plaintiffs/landlord month to month by money order till the death of the plaintiff/landlord nothing prevented the said tenant/petitioner to disclose the documents before the Court below to substantiate such claim. 11. If the petitioner is correct in contending that the petitioner as tenant had paid all along monthly rent directly to the said plaintiffs/landlord month to month by money order till the death of the plaintiff/landlord nothing prevented the said tenant/petitioner to disclose the documents before the Court below to substantiate such claim. In any event, the substituted plaintiffs having already brought on record, it was incumbent for the said defendant to tender the rent to the plaintiff and not to create a situation for themselves which would disable them to contest the said eviction proceeding. The application under Section 17(3) was field soon after substitution and for non-compliance of the provisions of Section 17(1). Once the application for substitution was allowed, the defendant ought to have tendered the rent to the substituted plaintiffs. In fact, in deciding an application under Section 17(1) or 17(2), the Court is not required to conclusively arrive at a finding as to the relationship of landlord and tenant as noticed by the Hon'ble Division Bench in Nanda Gopal Das Vs- Rabindra Nath De and Anr. (92 CWN 1) in Paragraph 8 which is reproduced hereinbelow:- "8. These observations are, therefore, again a clear authority for the proposition that ordinarily findings arrived at only to decide an application even in respect of any main Issue in the suit are "prima facie" findings "for the purposes of the said proceeding" and the main Issue, even if otherwise determined in the said proceeding, would still thereafter remain "open for a final decision at the time of hearing of the suit". But it must, however, be noted that, as pointed out therein, if the Court also takes up the relevant Issue for determination along with the hearing of the application under Section 17, and decides fully both the Issue and the application together, then the decision on that Issue would be final for the purpose of the suit also. But it must, however, be noted that, as pointed out therein, if the Court also takes up the relevant Issue for determination along with the hearing of the application under Section 17, and decides fully both the Issue and the application together, then the decision on that Issue would be final for the purpose of the suit also. The position, therefore, in that is view of the ratio in the Division Bench decisions in Ashalata Mitra (supra) and in Aloke Ghose (supra) we would have to hold that the determination in respect of default and arrears of rent under an application under Section 17(2) would ordinarily be final for the purpose of that application only, and not for the purpose of the main trial unless the Issue relating to default in the suit and the application under Section 17 are heard and decided together." The non-production of such rent receipts and money orders and failure to pay rent, to the substituted plaintiffs assume importance in the face of a challenge thrown to the defendant that the defendant is a defaulter in respect of payment of rent since the month of March, 1994. Even if it may not be March, 1994, but at least after the summons was received, the defendant should have approached the Court in terms of Section 17(1) and Section 17(2) of the West Bengal Premises Tenancy Act, 1956. The non-production of such receipts and also money orders raised a serious doubt in the mind of the trial court as also in this proceeding which had resulted in the dismissal of the civil revisional application. The reason is further fortified by the non-production of the rent receipts and further revelation of facts that the order of amendment allowing substitution was passed in 2004 in the presence of the present petitioner/tenant and had remained unchallenged. 12. In the grounds for review, it has been stated that there have been recording of incorrect facts in the sense that although the parent order records an application under Section 17(2) of the West Bengal Premises Tenancy Act, 1956 but no such application, in fact, has been filed by the tenant. 12. In the grounds for review, it has been stated that there have been recording of incorrect facts in the sense that although the parent order records an application under Section 17(2) of the West Bengal Premises Tenancy Act, 1956 but no such application, in fact, has been filed by the tenant. It was further contended that the observation with regard to striking out of defence as reported in 87 CWN 260 (supra) is incorrect since there is no such citation in existence and, accordingly, it has resulted in a mistake or error apparent on the face of record. The other grounds are basically on merits and an attempt to have the said civil revisional application re-heard on merits. 13. At the stage of receiving the said application without being dogmatic, I thought that if sufficient materials are produced even at this stage which would support the case of the petitioner that they are not defaulter, they may be permitted to do substantive justice. However, relevant documents in support of such claim has not been produced. The justifications for not accepting the plea of the defendant are the order for substitution. The application under Order 39 Rule 1 and 2 filed on 6th May, 2004 prior to the order of substitution and the failure of the tenant/petitioner to disclose money receipts. There is no explanation whatsoever regarding non-payment of rent after the order of substitution which was allowed subsequent to the filing of the petitioner under Order 39 Rule 1 and 2, that is to say, after May, 2004 and before December, 2004. The plea raised with regard to the locus of the substituted plaintiffs falls to ground by reason of the subsequent order allowing such petition. At least after the order of substitution was allowed, it was incumbent upon the petitioner to pay the rent month by month to the substituted plaintiffs. The case, however, is that there is no evidence to show that the rent was at all paid to the original plaintiff during the pendency of the suit. 14. The power of the Court to review its decision is well-settled. If any reference is required to be made, one can safely refer to Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma reported in 1979(4) SCC 389 . 14. The power of the Court to review its decision is well-settled. If any reference is required to be made, one can safely refer to Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma reported in 1979(4) SCC 389 . The said decision was recently considered by a Division Bench in the relevant portions where are set out hereinbelow:- "It is true as observed by this Court in Shivdeo Singh v. State of Punjab reported in AIR 1963 SC 1909 , there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the power seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate Court to correct all manner of errors committed by the subordinate court." 15. The said decision was subsequently considered in Meera Bhanja Vs. Nirmala Kumari Choudhury case reported in 1995 (1) SCC 170 in which Their Lordships held, while entertaining a review only on the ground of error apparent on the face of the record, it has to be kept in mind that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be of two opinions. We may also usefully refer to the observations of the Hon'ble Supreme Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale reported in AIR 1960 SC 137 wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record: "An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ." 16. It is also well-settled that mistake or error apparent on the face of the record has to be self-evident and does not require a process of reasoning and the same is clearly distinct from erroneous decision as has been held in Parsion Devi and Ors. v. Sumitri Devi and Ors. reported in 1997(8) SCC 715 . In the said decision, the Hon'ble Supreme Court was considering the phrase "mistake or error apparent on the face of record". It was held, an error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47, Rule 1 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter can only be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise". 17. Although the said decision was rendered under Order 47 Rule 1 of the Code of Civil Procedure, it is certainly a guiding principle even for considering an application under Article 226/227 of the Constitution of India. 18. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise". 17. Although the said decision was rendered under Order 47 Rule 1 of the Code of Civil Procedure, it is certainly a guiding principle even for considering an application under Article 226/227 of the Constitution of India. 18. There are also instances where to prevent manifest injustice being caused to a party, the Court exercises its power of review since the Court is exercising a power to do substantive justice to the parties if the situation demands, the Court should not be reluctant in exercising such power, afterall, the Court is exercising its power under Article 227 of the Constitution of India. However, in so far as the present case is concerned, the Court is unable to extend such principle and on the contrary, I am of the view that the trial Judge was justified in allowing the said application. The trial Judge, however, has judiciously left the question of ownership of the plaintiffs open to be considered at the time of dealing with the issue of requirement. In view thereof, the revisional application fails. There shall be, however, no order as to costs. 19. Urgent xerox certified copy, if applied for, be given to the parties on usual undertaking.