Research › Search › Judgment

Calcutta High Court · body

2015 DIGILAW 519 (CAL)

Neena Devi Rateria v. Sunila Seth

2015-06-23

DEBI PROSAD DEY, JYOTIRMAY BHATTACHARYA

body2015
Judgment : Jyotirmay Bhattacharya, J. Re: CAN 5738 of 2015 (condonation of delay) This appeal is a defective one. Defects are notified in the report of the Stamp Reporter dated 11th June, 2015. Those are curable defects. As such, leave is granted to the learned advocate-on-record of the appellant to cure those defects. Though it is reported by the Stamp Reporter that the appeal was filed 22 days beyond the statutory period, but we find that the appeal was filed within the prescribed period of limitation. We are informed by Mr. Banerjee, learned advocate appearing for the appellant that since the Stamp Reporter reported that the appeal was filed beyond the prescribed period of limitation, his client has filed an application under Section 5 of the Limitation Act. Since we find that the appeal was filed within the prescribed period of limitation, the application filed for condonation of delay is redundant. The application for condonation of delay being CAN 5738 of 2015 is thus disposed of. Re: SAT 243 of 2015 We have heard Mr. Banerjee, learned advocate appearing for the appellant on the point of admission of this appeal at the stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. This appeal is directed against the judgement of affirmance at the instance of the defendant/appellant (tenant). The plaintiffs/respondents (landlords) filed a suit for eviction against the defendant/appellant (tenant) on the ground of default in payment of rent and also for changing the user of the tenancy without the consent of the landlords. The defendant/appellant (tenant) appeared in the said suit and filed an application under Section 7(1) of the West Bengal Premises Tenancy Act, 1997 and started depositing the current rent. The defendant/appellant (tenant) has also filed an application under Section 7(2) of the said Act praying for determination as to whether she is a defaulter in payment of rent with an additional prayer that in case, she is found as defaulter, she may be permitted to deposit the arrear rent together with interest in terms of the provision contained in Section 7(2) of the said Act. Admittedly the tenant’s said application under Section 7(2) of the said Act remains undisposed of. Admittedly the tenant’s said application under Section 7(2) of the said Act remains undisposed of. The learned Trial Judge, in fact, decreed the said suit ex parte on both the grounds i.e. default in payment of rent as well as change of user of the tenancy without disposing of the tenant’s application under Section 7(2) of the said Act. The written statement which was submitted by the defendant/appellant (tenant) beyond the time which was granted to her by the learned Trial Judge was not accepted by the learned Trial Judge and the suit was fixed for ex parte hearing on 13th November, 2013 vide Order No. 8 dated 17th September, 2013. Being aggrieved by and dissatisfied with the said judgement and decree passed by the learned Trial Judge, the defendant/appellant (tenant) preferred an appeal challenging the legality of the said judgement and decree passed by the learned Trial Judge. The legality of the Order being No.8 dated 17th September, 2013 was also challenged in the said appeal. The learned Appeal Court held that the defendant/appellant (tenant) having failed to challenge the said Order before the higher forum in revision, she cannot raise such challenge in appeal. As such, the learned Appeal Court refused to consider the legality of the said Order passed by the learned Trial Judge. Let us first of all consider the legality of this part of the order of the learned Appeal Court. It goes without saying that in view of the provision contained in Section 105 of the Civil Procedure Code, such an interlocutory order on which the ultimate merit of the suit was dependent, no doubt could have been challenged by the defendant/appellant (tenant) in appeal. As such, we cannot agree with the learned Appeal Court that such an interlocutory order could not have been assailed by the defendant/appellant (tenant) in appeal. We thus hold that the learned Appeal Court was not justified in holding that the interlocutory order being Order No. 8 dated 17th September, 2013 passed by the learned Trial Judge whereby the suit was fixed for ex parte hearing after refusing to accept the written statement filed by the defendant/appellant (tenant) beyond the statutory period, is not assailable in appeal. We thus consider the merit of the said order but find no justification to disagree with the conclusion of the learned Trial Judge in not accepting the written statement filed by the defendant as we find that the written statement was filed by the defendant after a lapse of 166 days beyond the statutory period without accompanying any prayer for acceptance of the same on condonation of delay. Written statement filed beyond the statutory period can be accepted provided the reason for the delay is sufficiently explained. The defendant having failed to take such steps, the learned Trial Judge was justified in refusing to accept the written statement. Even coming to the aforesaid finding, we cannot admit the appeal for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure, as here is the case where we find that the plaintiffs/respondents (landlords) have filed the suit for eviction on twofold grounds i.e. default in payment of rent as well as change of user of the tenancy. Thus, if the plaintiffs/respondents (landlords) succeed in proving anyone of these two grounds, the landlords are entitled to get a decree for eviction. Let us first of all consider the legality of the decree on the ground of default in payment of rent. We have no hesitation to hold that both the courts below erred in passing the decree for eviction on the ground of default without following the provision of law. Section 7(2) of the said Act casts a duty upon the court to dispose of the defendant’s petition under Section 7(2) of the said Act, even in the absence of the defendant and disposal of the defendant’s petition is necessary as the relief available to the tenant against eviction on the ground of default under Section 7(4) of the said Act can be extended to the tenant subject to compliance of the order passed on her application under Section 7(2) of the said Act. Thus the courts below committed illegality by decreeing the suit on the ground of default without disposing of the defendant’s application under Section 7(2) of the said Act. As such, we are now required to consider as to whether both the courts below committed any illegality in passing the decree on the ground of change of user of the tenancy by the defendant/appellant (tenant). As such, we are now required to consider as to whether both the courts below committed any illegality in passing the decree on the ground of change of user of the tenancy by the defendant/appellant (tenant). The plaintiffs adduced evidence in the said suit in terms of the provision under Order 18 Rule 4 of the Code of Civil Procedure by way of affidavit. The plaintiffs’ witness also faced the Dock for proving the documents they relied upon to substantiate their claim in the said suit. The said witness was discharged after conclusion of his evidence. Defendant did not cross-examine the witness. The allegation regarding change of user of the tenancy by the tenant was proved by the plaintiffs/respondents (landlords) by their unchallenged testimony. Mr. Banerjee, learned advocate appearing for the defendant/appellant (tenant) submits that even without filing any written statement, his client had the right to cross-examine the plaintiffs’ witness. We do not want to join any issue on this submission made by Mr. Banerjee. But, here is the case where we find from the record that the defendant/appellant (tenant) did not exercise her right to cross-examine the plaintiffs’ witness. She did not pray for any opportunity to cross-examine the plaintiffs’ witness. Since the defendant/appellant (tenant) did not pray for any opportunity to cross-examine the plaintiffs’ witness, she cannot now complain that opportunity to cross-examine the plaintiffs’ witness was not given to her in course of trial of the suit. After going through the judgement impugned in this appeal, we find that both the courts below rightly held that the defendant/appellant (tenant) converted user of the tenancy illegally without the consent of the plaintiffs/respondents (landlords). The tenancy was given for residential purpose, but the tenant converted it for commercial use. As such, we do not find involvement of any substantial question of law in this appeal. We thus decline to admit the appeal under the provision of Order XLI Rule 11 of the Code of Civil Procedure. Re: CAN 5601 of 2015 (Injunction) In view of disposal of the appeal in the manner as aforesaid, no further order need be passed on the application for injunction. The said application being CAN 5601 of 2015 is thus deemed to be disposed of.