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2012 DIGILAW 704 (CAL)

Gora Chand Pal v. Nomita Mondal

2012-07-31

SOUMEN SEN

body2012
Judgment SOUMEN SEN, J. 1. THIS revisional application is arising out of an order No. 71 dated 02.01.2007 allowing an application filed under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956. 2. THE petitioner is a defendant in an eviction suit instituted by one Santosh Kumar Mondal being Title Suit No.228 of 1994. The petitioner received the summons on 8th July, 1994 and entered appearance on 25th July, 1994. Subsequently, 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 contended 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. 3. THE petitioner contested such proceeding by filing written objection on 28th April, 2006 in which was contended that the rent had been paid all along to the original plaintiff till his death i.e. 26th December, 2003. The opposite parties failed to establish 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 petition 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. 4. IN the aforesaid circumstances, this civil revisional application was filed challenging the Order No.71, dated 2nd January, 2007. 5. UNDER the old Tenancy Act certain protections were given to the tenant, one of which was that such tenant would be required to tender rent month by month during the pendency of the proceeding initiated by the plaintiff/landlord as mentioned under Section 17. Such protection is given to the tenant under Section 17 of the West Bengal Premises Tenancy Act, 1956. 6. IN order to appreciate such contentions reference may be made to Section 17(1), 17(2) and 17(3) of the said Act, relevant portions whereof are set out herein-below:- "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). 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. 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 sub- section (2A), or fails to deposit or pay any instalment permitted under clause (b) of sub-section (2A) within the time fixed therefore, the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit." 7. IN the instant case it appears from record that after some delay the substituted plaintiffs invited 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 answering to the said provision, the defendant filed an objection which is completely devoid of any particulars. 8. THE material parts of the said objection are in paragraph nos. 2 and 3, which are reproduced herein below: - "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/petitioners 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." 9. IT is very difficult to comprehend when the opposite party became "first confused". The date was not disclosed. IT is very difficult to comprehend when the opposite party became "first confused". The date was not disclosed. It is not clear what prevented the said confused tenant/opposite party to invoke the provisions of Section 17(1) and 17 (2) and to deposit the rent in the court so that the said tenant could get benefit of protection under Section 17 of the West Bengal Premises Tenancy Act, 1956. 10. 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). 11. 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. Moreover, 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 ) 12. 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. 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." 13. THIS application was filed during the pendency of the application for substitution which was, however, allowed subsequently in presence of the petitioner. 14. IT is argued on behalf of the petitioner that a dispute as to existence of the landlord and the tenant between the parties does affect the question of rent payable by the tenant to a particular landlord and in that 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. In Biswanath Roy Vs. Annapurna Roy reported in 65 CWN 149, it was held as follows:- "Any kind of dispute which affects the amount of rent payable by the tenant, including a dispute as to the existence of relationship of landlord and tenant between the parties, will be a dispute under or within the contemplation of Section 17(2) of the West Bengal Premises Tenancy Act, 1956. A dispute as to the existence of relationship of landlord and tenant between parties does affect the question of rent, payable by a tenant to a particular landlord, and, in that view of the matter, in a case where such a dispute has been raised, unless and until the court has decided and determined that dispute and made an appropriate order under Section 17(2), no question of striking out the defence against delivery of possession under Section 17(3) can arise, provided, of course, that the said dispute is a bona fide one, as, otherwise the said sub-section (2) would not be attracted." 15. IT was argued on behalf of the petitioner that the Civil Judge has to decide the issue of relationship of landlord and tenant before it passes an order and the existence of landlord and tenant relationship is the very foundation of an eviction petition under the rent control statute (Rajendra Tiwary Vs. Basudeo Prasad and Anr., 2002(1) SCC 90 ). 16. 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 with the death of the original plaintiff. The present petitioner acknowledged that the present substituted plaintiffs are claiming to be the owners and landlords of the premises in question. Even in the revisional application nothing is on record to show that such rent was tendered to the original plaintiff or that the money was sent to the original plaintiff by money order or to the substituted plaintiffs. During the course of argument, Mr. Dipankar Dhar, learned Counsel appearing on behalf of the petitioner tried to produce certain rent receipts which are about seven in numbers for the period 1996 till 2003 and submitted that such documents would show that the rents have been paid regularly to the original plaintiff. During the course of argument, Mr. Dipankar Dhar, learned Counsel appearing on behalf of the petitioner tried to produce certain rent receipts which are about seven in numbers for the period 1996 till 2003 and submitted that such documents would show that the rents have been paid regularly to the original plaintiff. The said alleged rent receipts or the money order slips were not produced before the trial Court nor any application was filed before this Court for production of such additional documents. In any event, even such alleged rent receipts would not show that the rent was tendered to the substituted plaintiffs from February, 2004. There was no impediment on the part of the petitioner to annex such money order slips or alleged rent receipts if the petitioner was so certain about its genuinity. There is nothing 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. 17. 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 not 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 is discernible from Section 17(3) which 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. 18. 18. 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. 19. 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 in the year 2004 it was incumbent for the said defendant to tender the rent to the said substituted plaintiffs 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 herein-below:- "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." 20. 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. 21. ONCE the court is satisfied that there has been a default, the court has no other option to pass an order under Section 17(3), having regard to the mandatory nature of the said Sub-section which is clearly discernible from the use of the expression "the court shall" order the defence against delivery of possession ...........................". 21. ONCE the court is satisfied that there has been a default, the court has no other option to pass an order under Section 17(3), having regard to the mandatory nature of the said Sub-section which is clearly discernible from the use of the expression "the court shall" order the defence against delivery of possession ...........................". If there had been an application filed by the tenant prior to invoking of Section 17(3) of the said Act for condonation of delay the court may on being satisfied with the grounds condone such delay in view of Section 17 (2A), but the said tenant never applied for condoning the delay in making deposit in the court. The expression shall in Section 17 (3) of the West Bengal Premises Tenancy Act, 1956 makes a mandatory for a tenant to comply with the other provisions of the Act. 22. IN view of the aforesaid, the order passed by the learned trial Judge in striking out of defence under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 was just and proper and this Court finds no reason to interfere with the order passed by the learned trial Judge. 23. IN view thereof, the revisional application stands dismissed. There shall be, however, no order as to costs. 24. URGENT xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking. After the pronouncement of the judgment, learned Counsel appearing for the petitioners prays for stay of operation of the judgment. The said prayer is considered and refused.