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2014 DIGILAW 1073 (CAL)

Chittaranjan Mondal v. Tapan Kumar Adhikari

2014-11-17

INDRAJIT CHATTERJEE

body2014
ORDER 1. This is an application under Article 227 of the Constitution of India wherein the present petitioner, who is the defendant/tenant in Title Suit No. 698 of 2010 now pending before the learned Civil Judge (Junior Division), 6th Court at Alipore, has challenged the order No. 28 dated 13.11.2013 as passed by the said learned Trial Court. 2. Heard the learned Counsel appearing on behalf of the petitioner. The certified copy of the order is a part of this application. 3. It is submission of the learned Counsel appearing on behalf of the petitioner that no notice for termination of the tenancy was given under Section 106 of the Transfer of Property Act as claimed by the plaintiff of that suit and the findings of the learned Trial Court this is a suit under the Transfer of Property Act where a notice under Section 106 has been served upon the defendant is wrong and thereby the learned Trial Court prejudged the issue. 4. It is also his submission that under Section 114 of the Transfer of Property Act, his client is entitled to deposit the said amount as per challan. Learned Counsel took me to the said provisions, which runs as follows:- "Section 114 Relief against forfeiture for non-payment of rent where a lease of immovable property has determined by forfeiture for non-payment of rent and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred. 5. Learned Counsel also referred to the decision of the Hon'ble Apex Court as reported in R.S. Lala Praduman Kumar vs. Virendra Goyal, AIR 1969 SC 1349 wherein the Hon'ble Apex Court held that even at the appellate stage, such payment may be made under Section 114 of the said Act. 6. I have gone through the impugned order wherefrom it is clear that the present petitioner has deposited some amount without the leave of the court. 7. 6. I have gone through the impugned order wherefrom it is clear that the present petitioner has deposited some amount without the leave of the court. 7. It is the submission of the learned Advocate that such deposit be legalized and the plaintiff will be entitled to get it back if the decree for eviction is at all passed. 8. On scrutiny of the order, this court is satisfied that some deposit was made by the present petitioner without the leave of this Court. It is the submission of the learned Advocate that Rs. 7,700/- (Rupees seven thousand deven hundred only) was paid as per challan and that was accepted by the office of the Court. It may be that such deposit was accepted by the office, but that was done without the leave of the court as contemplated under Section 114 of the Transfer of Property Act and that too behind the back of the plaintiff without filing any petition before the learned Trial Court. Therefore, the risk must be borne by the present petitioner. 9. It may also be noted that this case is not for ejectment of the lessee only for non-payment of arrear rent, but it is also a litigation praying for eviction of the tenant under Section 106 of the Transfer of Property Act on termination of tenancy. The present petitioner will be at liberty to withdraw the said amount. 10. The learned Trial Court is directed to pass an order as per application to be filed by the present petitioner in this regard so that such amount may be withdrawn. If the plaintiff before the learned Trial Court succeeds naturally, the present petitioner (defendant) may cover up the dues from such withdrawn amount. This Court cannot legalize such deposit, which was not accepted properly by the learned Trial Court. 11. In view of the discussion so long made, this Court finds no reason to entertain this application only to prolong the litigation. 12. Accordingly, the revisional application stands dismissed without any costs. 13. Urgent certified copy of this order, if applied for, be given to the parties as per rules observing all formalities. Application dismissed.