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2014 DIGILAW 665 (CAL)

Sankar Prasad Vishwakarma v. United Traders

2014-07-23

SUBRATA TALUKDAR

body2014
JUDGMENT Subrata Talukdar, J.: By filing this civil revisonal application number CO 1657 of 2010 the petitioner challenges Order no.56 dated 20th March, 2010 passed by the ld. 1st Civil Court (Junior Division) Asansol in Title Suit (for short T.S.) no.142 of 2004. By the said Order the ld. 1st Civil Court was pleased to finally consider an application u/s 17(3) of the West Bengal Premises Tenancy Act, 1956 filed by the present petitioner-plaintiff along with an application u/s 148 of the Code of Civil Procedure filed by the defendants. The ld. Trial Court was pleased to record as follows:- a) That on an application filed u/s 17(2) of the West Bengal Premises Tenancy Act, 1956 (referred to for short as the 1956 Act.), the ld. Trial Court was pleased to allow the defendant the liberty to pay rent by instalments. The period for paying such rents having expired the same was extended by the Hon’ble High Court. However, even the direction of the Hon’ble High Court was not complied with and the present OP-defendants failed to deposit the rent by March, 2009. The 1st Civil Court (Junior Division) was also pleased to notice that Section 148 of the Code of Civil Procedure permits extension of time by the Court not exceeding 30 days. b) The ld. Civil Court was pleased to further notice that vide the final Order passed in the application u/s 17(2) of the 1956 Act the present OP-defendants are liable to pay the arrear rents of a considerable sum. Such payment has been delayed. Pending payment the disposal of the Main Suit which is of the year 2004 is being held up. c) Accordingly, the ld. 1st Civil Court was pleased to allow the application u/s 148 CPC filed by the present OP-defendants at a cost of Rs.1,000 to be paid to the plaintiff to ensure compliance with the Order passed by the ld. Trial Court earlier on the 29th of February, 2008. The ld. 1st Civil Court was pleased to consider the number of instalments for payment of arrear rents to be fixed upon compliance by the present OP-defendants on payment of cost of Rs.1,000. The ld. Trial Court earlier on the 29th of February, 2008. The ld. 1st Civil Court was pleased to consider the number of instalments for payment of arrear rents to be fixed upon compliance by the present OP-defendants on payment of cost of Rs.1,000. The ld. Trial Court was further pleased to observe that in the event of the failure of the OP-defendants to pay the cost awarded on and by 31st of March, 2010, the defence of the OP-defendants shall be liable to be struck off. Accordingly, the ld. Trial Court was pleased to fix 31st of March,2010 for passing final Orders on the application u/s 17(3) filed by the OP-defendants under the 1956 Act. Sri Chatterjee, ld. Counsel appearing for the present petitioner-plaintiff submits that the said T.S. no.142 of 2004 is a suit for eviction on the ground of default and reasonable requirement. The present OP-defendants contested the suit by filing written statement. The monthly rent of Rs.7,000 payable according to the English calendar was not paid since February, 1995. Sri Chatterjee points out that the application u/s 17(2) of the 1956 Act for determination of arrears of rent was disposed of by the ld. 1st Civil Court (Junior Division) on the 29th of February, 2008. Being aggrieved by the Order dated 29th February, 2008 the OP moved a revisional application before this Hon’ble Court by directing payments of arrear rents within March, 2009. However, in spite of such specific Order of this Hon’ble Court the OP failed and neglected to pay the arrears of rent as directed within March, 2009. Sri Chatterjee argues that as provided under the 1956 Act the petitioner-plaintiff filed an application u/s 17(3) of the said Act for striking out the defence of the OP on the ground of non-compliance of the Order dated 29th February, 2008. The OP filed an application u/s 148 of the CPC praying for extension of time to deposit the arrear rents by instalments. The petitioner filed his written objection to such application praying for rejection of the same. Sri Chatterjee argues that the ld. Trial Court erroneously exercised jurisdiction by granting time to the OP to deposit arrears of rent beyond the period of one month as stipulated u/s 148 of the CPC. Sri Chatterjee further argues that the ld. The petitioner filed his written objection to such application praying for rejection of the same. Sri Chatterjee argues that the ld. Trial Court erroneously exercised jurisdiction by granting time to the OP to deposit arrears of rent beyond the period of one month as stipulated u/s 148 of the CPC. Sri Chatterjee further argues that the ld. 1st Civil Court ought to have noticed that the present OP failed to comply with the Order u/s 17(2) passed by the ld. Trial Court on the 29th of February, 2008. Neither did the present OP comply with the solemn Order of the Hon’ble High Court in CO 1635 of 2008 directing payment of arrears by March 2009. According to Sri Chatterjee, in view of such conduct of the present OP the ld. 1st Civil Court committed material irregularity in exercise of its jurisdiction by extending the time further for deposit of arrear rents u/s 148 of the CPC. Sri Chatterjee makes an additional submission that even the present OP failed to deposit the costs as directed by the ld. 1st Civil Court on and by 31st of March, 2010. He draws the attention of this Court first to the Order impugned dated 20th March, 2010 wherein and whereunder the ld. Trial Court was pleased to observe as follows:- “Be it noted that if the defendant neglects to pay up the costs on 31st March, 2010 his defence shall be liable to be struck of. The final Order for the application u/s 17(3) of the West Bengal Premises Tenancy Act is fixed for 31st of March, 2010.” Sri Chatterjee produces before this Court, with a copy to the ld. Counsel for the Ops, an information slip stamped from the Court of the 1st Civil Court (Junior Division) Asansol. The said information slip dated 11th March, 2014 notes as follows:- “In the Court of 1st Civil Judge at Asansol, T.S. No. 142 /2004 Plaintiff – Shankar Pr. Biswakarma, Defd. – S.N.Pandey, Is any cost paid by the defd on 31/03/2010? - No If so what is the challan number? Does not arise.- What is the next date? – 02/06/2014” On the basis of the said information Sri Chatterjee submits that the present OPs even failed to pay up the costs directed to be paid by the ld. 1st Civil Court on and by 31st March, 2010. - No If so what is the challan number? Does not arise.- What is the next date? – 02/06/2014” On the basis of the said information Sri Chatterjee submits that the present OPs even failed to pay up the costs directed to be paid by the ld. 1st Civil Court on and by 31st March, 2010. In such circumstances the OPs do not deserve any further consideration by Court and their defence is liable to be struck off u/s 17(3) of the 1956 Act. In support of his submission Sri Chatterjee relies upon the following decisions:-44 CWN 449 in the matter of Haji Eakub Sheikh Vs. Samjan Bibi and Ors. and AIR 1965 (CAL) 354 (para-6) in the matter of Tarapada Sarkar Vs. Nepal Gazi and Ors. Per contra Sri Mansoor Alam, ld. Counsel appearing on behalf of the OPs submits that the OP-defendants are entitled to extension of time u/s 148 CPC. He further submits that the ld. Trial Court was correct in noticing that in view of the non-deposit of the arrears of rent, the adjudication of the main suit has been held up since the year 2004. Sri Alam draws the attention of this Court to the application dated 15th December, 2009 filed on behalf of the OPs u/s 148 CPC. Relying on paragraph 3 of the said application he submits that the OP-defendants had specifically averred that on 11th of December, 2009 for the first time they came to know regarding the disposal of the revisional application numbered as CO 1635 of 2008 by the Hon’ble High Court. After filing of the revisional application the father of the defendant no.2 was attacked with Alzheimer’s disease for which the defendant no.2 and his family members had to spent considerable time for treatment. Such treatment took place at P.G.I, Chandigarh and the father of the defendant no.2 ultimately expired on the 20th of September, 2009. Sri Alam submits that due to the aforementioned exigent circumstances the OP-defendants could not take steps for compliance of the Order of the Hon’ble High Court and were also not in a position to pay the arrears of rent at one time. Consequently the OP-defendants prayed before the ld. 1st Civil Court to acknowledge the time for payment of arrear rents up to 31st March, 2010 on monthly instalments with effect from December, 2009. Consequently the OP-defendants prayed before the ld. 1st Civil Court to acknowledge the time for payment of arrear rents up to 31st March, 2010 on monthly instalments with effect from December, 2009. Sri Alam relies upon a decision of the Hon’ble Apex Court reported in 2005 (6) SCC 344 in the matter of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India. Taking this Court to paras 41, 42 and 43 of the said decision Sri Alam argues on the legal interpretation of Section 148 CPC by the Hon’ble Apex Court. He particularly lays emphasis on paragraph 43 of the said judgment which reads as follows:- “43. There can be many cases where non-grant of extension beyond 30 days would amount to failure of justice. The object of the Court is not to promote failure of justice. Section 148, therefore, deserves to be read down to mean that where sufficient cause exists or events are beyond the control of a party, the Court would have inherent power to extend time beyond 30 days.” Sri Alam therefore submits that the ld. 1st Civil Court committed no irregularity by passing the Order impugned dated 20th of March, 2010. He argues that in the event the application u/s 17(3) of the 1956 Act is allowed, the present OPs shall be rendered remediless. They shall suffer utter prejudice due to the striking off of their defence. Heard the parties. Considered the materials on record. This Court notices the fact that during the carriage of the entire proceedings of T.S. no.142 of 2004 it is incumbent to pass judgment on the applications u/s 17 (3) of the 1956 Act as well as the application u/s 148 CPC upon assessment of the cumulative conduct of the parties. The following facts stare at the face of this Court while assessing such cumulative conduct. In the opinion of this Court assessment of the cumulative conduct of the parties is a sine qua non prior to consider grant of a discretionary, justiciable relief to any of the parties. The following facts stare at the face of this Court. a) First, the Order u/s 17(2) was passed way back on the 29th of February, 2008. By the said Order u/s 17(2) of the 1956 Act, the defendant-OPs were called upon to deposit arrears of rent. The following facts stare at the face of this Court. a) First, the Order u/s 17(2) was passed way back on the 29th of February, 2008. By the said Order u/s 17(2) of the 1956 Act, the defendant-OPs were called upon to deposit arrears of rent. However, the OP-defendants failed to comply with the terms of the Order dated 29th February, 2008; b) Thereafter, on an application filed by the OP-defendants before this Hon’ble Court being CO 1635 of 2008 the time for compliance with the provisions of 17(2) was extended till March, 2009. The operative part of this Order passed by the Hon’ble Court in CO 1635 of 2008 reads as follows:- “On the prayer of Mr.Chatterjee, (Dhiren Chatterjee), time for depositing the entire arrear rent together with interest payable by the defendants as per the Order impugned, is extended till 7th March, 2009. The Hon’ble Court was also pleased to hold since the rate of rent is not disputed and further since the petitioners failed to produce any material to show that the petitioner paid and/or deposited any rent in respect of the suit premises for the period from April 1993 to January 1998, this Court does not find any justification to interfere with the Order impugned. The revisional application, thus, stands rejected.” This Court finds that the said outer date of 7th March, 2009 was even not complied with by the present OP-defendants. c) This Court must notice that last but not the least the present OP-defendants failed to pay the costs of Rs.1,000 as directed by the ld. 1st Civil Court by the Order dated 20th of March, 2010. It was to the knowledge of the present OP-defendants that nonpayment of the said costs would invite the ld. Trial Court to pass final Orders on the next date fixed, i.e. 31st March, 2010. Even then from the information slip filed by Sri Chatterjee and, such position of fact could not be disputed by Sri Alam, it transpires that on and by 31st March, 2010 no cost was paid and no Challan number indicating payment of costs could be produced from the Court of the ld. 1st Civil Court (Junior Division). Accordingly, this Court is of the considered opinion that the present OP-defendants are not entitled to any equitable or discretionary relief having regard to their cumulative conduct in the suit. 1st Civil Court (Junior Division). Accordingly, this Court is of the considered opinion that the present OP-defendants are not entitled to any equitable or discretionary relief having regard to their cumulative conduct in the suit. The contents of paragraph 43 in Salem Advocate Bar Association’s case (supra) mandate that the provision of Section 148 deserve to be read down in instances where sufficient cause of existence of events beyond the control of a party are shown. Even though the Court may be persuaded to accept the averments made in the application u/s 148 CPC filed by the OPs explaining the circumstances which went beyond their control for which the arrear rents could not be deposited as directed, the OPs have utterly failed to prove their bonafides by not complying with the award of costs as directed by the ld. 1st Civil Court on the 20th of March, 2010. Sri Alam, during the course of submission has been unable to satisfactorily explain before this Court the non-compliance of the payment of costs as awarded by the Ld. 1st Civil Court, compliance thereof would have shown the bonafide conduct of the OPs. Noticing the decision of an Hon’ble Division Bench of this Court reported in AIR 1991 CALCUTTA 302 in the matter of Shanti Nath Sha Vs. Santosh Kumar Chatterjee, this Court is of the view that when the Ld. Trial Court on perusal of the records finds that there is non-compliance with the provisions of 17 (2) of the 1956 Act, the Ld. Trial Court shall be justified at arriving at the conclusion that there are sufficient materials before the Court to hold in favour of striking out the defence against delivery of possession. The Hon’ble Division Bench in Shanti Nath Sha’s (supra) case was pleased to arrive at its above mentioned conclusion upon careful consideration of the decision of the Hon’ble Apex Court in M/s. B.P.Khemka Private Limited Vs. Birendra Kumar Bhowmick and Anr. reported in AIR 1997 S.C. 1010. For the aforementioned reasons the Order impugned no.56 dated 20th March, 2010 passed by the Ld. Civil Court (Junior Division) at Asansol in Title Suit no.142 of 2004 is set aside. CO 1657 of 2010 is allowed. There will be, however, no order as to costs.