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2015 DIGILAW 608 (CAL)

Amit Kumar Chamaria v. Singh Tyre

2015-07-24

SHIVAKANT PRASAD

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JUDGMENT SHIVAKANT PRASAD, J. This revisional application is directed against the order being No. 66 dated 25th November, 2013 passed by the Learned Civil Judge (Junior Division), 1st Court at Howrah, in Title Suit No. 51 of 2011 thereby allowing the application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997. The petitioner as the plaintiff filed a suit for eviction against the opposite party who was inducted as a monthly tenant in respect of one shop room situated in the ground floor of suit premises at a monthly rent of Rs. 20/- payable according to English Calendar month under the petitioner. The rent from the opposite party was realized by Sri Raghunath Prosad Bubna, Receiver appointed in Money Execution Case No. 23 of 1961 who has been discharged as a Receiver vide Order dated 10th February, 2009 passed by the learned Civil Judge (Senior Division) 2nd Court, Howrah. After discharge of the Receiver the petitioner issued a letter of request to the opposite party to pay the arrear rent along with maintenance charges, municipal taxes and interest @ 10% p.a. from April 1993, within a period of seven days from the date of letter since the opposite party was a statutory defaulter. The petitioner issued another notice dated 21st May, 2010 under Section 20 of the West Bengal Premises Tenancy Act, 1997 requesting the opposite party to pay rent @ Rs. 153/- per month (including maintenance charge and Municipal Tax from the month of July, 2010). But the opposite party paid no heed to the petitioner’s letters dated 21st May, 2010, and 22nd May, 2010. So, the petitioner served an ejectment notice dated 4th November, 2010 requesting the opposite party to quit and vacate peaceful possession of the portion of the premises occupied by the opposite party. But the opposite party paid no heed to the petitioner’s letters dated 21st May, 2010, and 22nd May, 2010. So, the petitioner served an ejectment notice dated 4th November, 2010 requesting the opposite party to quit and vacate peaceful possession of the portion of the premises occupied by the opposite party. The opposite party having entered appearance in the suit filed an application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as the said application) on 26th May, 2011 praying for an order to allow him to deposit the arrear rents after determination of the exact amount payable to the plaintiff with the contention that he has been paying monthly rent to Sri Raghu Nath Prasad Bubna, being the Receiver and the said Receiver received the monthly rent from January 1993 to July 1993 but thereafter, the Receiver stopped to receive monthly rent as he was going to be discharged by the learned Court. On contested hearing, the learned Court below allowed the said application by Order No. 66 dated 25th November, 2013 which is under challenge in this revisional application on the grounds, inter alia, that the learned Judge failed to exercise his jurisdiction by not considering the fact that the opposite party had failed to comply with the precondition of depositing the admitted arrear rent for maintaining an application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997. Mr. Bhattacharyya contended that when the mandate of Section 7 of the West Bengal Premises Tenancy Act, 1997 is clear and unambiguous in as much as the deposit of admitted arrear rent in the Court below being a condition precedent for invoking jurisdiction of the learned Court under Section 7(2) of the West Bengal Premises Tenancy Act, 1997, the petition was liable to be rejected though the West Bengal Premises Tenancy Act, 1997 is a welfare legislation yet it is not entirely a beneficial piece of enactment for the tenant but also for the benefit of the landlord. Accordingly, it is urged that the impugned order is liable to be set aside as bad in law and in fact. Mr. Bhattacharyya, learned Counsel for the petitioner has pointed out that the petitioner has sent a notice under Section 20 of West Bengal Premises Tenancy Act, 1997 which has not been considered by the learned Judge while ascertaining the quantum of rent. Mr. Bhattacharyya, learned Counsel for the petitioner has pointed out that the petitioner has sent a notice under Section 20 of West Bengal Premises Tenancy Act, 1997 which has not been considered by the learned Judge while ascertaining the quantum of rent. The provision of Section 20 of the Act relates to notice of increase of rent which provides— “Where a landlord intends to increase the rent of any premises he shall give to the tenant the notice of his intention so to do in so far as such increase is permissible under this Act, the increase of rent shall be due and recoverable from the month or period of tenancy next for the expiry of thirty days from the date on which the notice is given.” The provision provides that the proposed increase of rent may be treated as a demand of rent which is computable under sub-section 3, 4, 4(A) and 4(B) of Section 17 read with Schedule II and III of the Act. Determination of fair rent either under Sub-section 2 or Sub-section 6 requires adjudication. As such, the landlord or the tenant should not take the responsibility of making any assessment of fair rent. Provisions have been thus made in Section 17 for fixation of fair rent and for such fixation the landlord is at liberty to apply to the controller for fixation of fair rent in accordance with the provisions of Section 17 of the Act. The procedure under Section 17 of the Act is an adjudicatory process as the controller should dispose of the matter after hearing both the parties. Therefore, the learned Judge might not have considered the Advocate’s letter on behalf of the petitioner addressed to the opposite party for determination of the legal obligation on the part of the defendant/opposite party to pay @ 153/-by way of rent, maintenance charges and Municipal Taxes. Shiv Kumar Singh as DW-1 stated on oath that the defendant is a monthly tenant in respect of the suit premises previously under receiver viz. Raghu Nath Prasad Bubna and after discharge of the learned Receiver the opposite party is tenant under the plaintiff as per order dated 10.2.2009 passed by the learned Civil Judge (Senior Division) 2nd Court, Howrah, in connection with Money Execution No. 23 of 1961 at a monthly rental of Rs. 20/- up to the month of July, 2001 and Rs. Raghu Nath Prasad Bubna and after discharge of the learned Receiver the opposite party is tenant under the plaintiff as per order dated 10.2.2009 passed by the learned Civil Judge (Senior Division) 2nd Court, Howrah, in connection with Money Execution No. 23 of 1961 at a monthly rental of Rs. 20/- up to the month of July, 2001 and Rs. 153/- per month since the month of August, 2001 till date and this fact ought to have been considered by the learned Trial Judge. Admittedly, there is no dispute regarding the tenancy, there is no dispute as to the relationship between the parties. The dispute was with regard to the rate of rent. The learned Judge on perusal of the plaint found that the defendant is a tenant in respect of the suit premises @ 20/- per month payable according to English Calendar month and in that sense there was no dispute as to the rate of rent except the period of arrear in rent since April, 1993, however, according to defendant, the arrear in rent is since July, 1993. Considering the evidence adduced by the parties to the suit, the learned Court has rightly held that the defendant defaulted in payment of rent since April, 1993 till April, 2011 and calculated arrear rent for 217 months @ 20/- per month with direction to the opposite party to pay arrear rent of Rs. 4340/- by one single installment within a month in terms of provision of Section 7 of WBPT Act and further to deposit current rent within fifteen of each succeeding month. Learned Counsel has invited my attention to annexure P-6 i.e. application under Section 7(2) of WBPT Act, 1997 at Para 6 wherein the defendant has averred that he shall clear all the arrear rent which he could not pay to the proper claimant to be calculated and directed by the learned Court. Adverting to the provision of Section 7 of WBPT Act learned Counsel pointed out that the requirements of Sub-section 1 and 2 of Section 7 of the Act are that the tenant must deposit all arrear of rent and shall also go on depositing current rent and the opposite party having not complied with the provisions enshrined in the Act, the learned Court below ought to have rejected the application under Section 7(2) of the Act instead of entertaining the same. In support of his contention the learned Counsel has referred to decision of Shibu Chandra Dhar vs. Pasupati Nath Auddya, (2002) 3 SCC 617 wherein it has been held that conjoint reading of Sections 17(2-B), 17, 17(2-A) and 17-A to 17-D shows that the Court has power to extend time, but the power has to be judicially exercised. In all the sections the word shall necessarily means may and Court’s duty is to come to a decision as to whether the tenant’s reasons for delay in depositing arrears of rent are inadequate and thus whether his defence should be struck off. It has been held that Court can condone delay and/or extend time for deposit in cases of small defaults, or those caused by factors beyond the control of the tenant, only if the court has the power to extend time. The learned Counsel has submitted that by virtue of Section 7(2) of the Act 1997 a Court cannot entertain an application for extension of time after the period of thirty days and it must be rejected as the Court has no power to entertain an application filed beyond time. Per contra, learned Counsel for the opposite party relied in case of B.P. Khemka Pvt. Ltd. vs. Birendra Kumar Bhowmick, 1987 (2) SCC 407 : AIR 1987 SCC 1010 and Gopal Chandra Ghosh vs. Renu Bala Majumdar, 1994 (2) SCC 258 , wherein the Hon’ble Apex Court held that the word shall must be taken to mean may in Section 17 of the West Bengal Premises Tenancy Act, 1956 (Now, under Section 7 of the Act, 1997). In the above cited decisions it has been held that the court has discretion to extend time in appropriate cases; that is to say, in case of default in payment of rent being minor in nature. It has been observed that the Court must draw a distinction between a technical or a minor default and a wilful, gross and deliberate default. In case of a wilful, gross and a deliberate default, the court must compulsorily reject the application as having no discretion to condone the delay and have no option but to strike out the defence of a tenant. In case of a wilful, gross and a deliberate default, the court must compulsorily reject the application as having no discretion to condone the delay and have no option but to strike out the defence of a tenant. In a decision of B.P. Khemka (supra), it has been observed that if the Court has the discretion not to strike out the defence of the tenant committing default in payment or deposit of rent as required by a provision in any Rent Restriction Act, then the Court surely has the further discretion to condone the default and extend the time for payment or deposit and such a discretion is a necessary implication of the discretion not to strike out the defence. In the case in hand, this Court finds that there has been a minor default in the payment of rent only to the tune of Rs. 4,340/-. Learned Counsel for the petitioner has also relied on a decision of Hindusthan Industrial Co. vs. Chandi Prosad More, 79 CWN 1017 wherein it has been held that an application under Section 17(2) of the W.B. Premises Tenancy Act, 1956, must have three elements: (a) there must be a dispute raised as to the amount of the rent payable; (b) the tenant must make deposit of all admitted arrears of rent within the statutory period; (c) the said deposit, must be made along with the application. It is urged that the third element is an integral and essential part of the section and unless this element is present the application cannot be considered to be an application under Section 17(2). Ergo, it is submitted that the learned Judge erred in law and in fact in allowing the application under Section 17(2) of the Act, 1997. The learned Trial Court has found that there has been a dispute as to the amount of rent payable, however, there was no dispute as to the relationship between the parties. It is true that the admitted rent was not deposited along with the application under Section 7(2) of the application, however, the learned Judge having regard to the evidence on record determined the rent in arrear and directed the opposite party to deposit the rent in arrear by a single installment. Having regard to the principle held in B.P. Khemka case (supra), this Court does not find any ground to interfere into the order impugned. Having regard to the principle held in B.P. Khemka case (supra), this Court does not find any ground to interfere into the order impugned. In the context above, C.O. No. 55 of 2014 is dismissed without any order as to costs. The Office to supply Photostat certified copy of this order to applicant, if applied for, on urgent basis.