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2016 DIGILAW 168 (CAL)

Hamida Ahmed v. Nehal Ahmed Saleh-Jee

2016-02-15

ASHOKE KUMAR DASADHIKARI

body2016
JUDGMENT : Ashoke Kumar Dasadhikari, J. 1. Order impugned dated 2nd March 2010 passed by the learned Chief Judge, Presidency Small Cause Court, Calcutta in Ejectment Suit No. 878/2002 allowing the application under section 17(3) of the West Bengal Premises Tenancy Act 1956 filed by the plaintiffs/ petitioners is questioned in this revisional application. 2. Leaned counsel appearing for the petitioners submits that the Ejectment Suit being 604/92 was filed by the plaintiff/opposite party before the learned Judge, 3rd Bench, City Civil Court at Calcutta. The petitioner/defendant upon receipt of summons duly appeared in the suit and was contesting the same by filing written statement. The original defendant being the husband of the petitioner/present defendant, moved two applications; one is under section 17(1) and the other one is under section 17(2) of the West Bengal Premises Tenancy Act 1956. Both the said applications were disposed of by the learned court below by its order dated 5th December 1994 allowing the defendant’s application and directing the defendant to deposit the arrear rent assessed at Rs.3220/- at the rate of Rs.100 along with the current rent till the said entire arrear is exhausted. It was claimed that as per order passed by the learned court below, original defendant started to deposit monthly rent in the Ejectment Suit and according to him there was compliance of the order of the learned court below. 3. In the year 2000 the suit was transferred from City Civil Court to Presidency Small Causes Court, Calcutta for disposal. After transfer of the suit, petitioner/defendant being the successor of original defendant did not find whereabouts of the said matter and after long search in the year 2005 the defendant traced out the Ejectment Suit papers and, accordingly, the present defendant/petitioner came to know that the said suit was transferred to the learned Chief Judge, Presidency Small Causes Court with a new number being Ejectment Suit No. 878 of 2002 and the same was decreed ex-parte in favour of the plaintiff. Defendant/petitioner immediately filed an application under Order 9, Rule 13 CPC Vide Misc. Case No. 189 of 2005 before the learned Chief Judge, Small Causes Court for setting aside the ex-parte order and the Misc. case was allowed on contest. Thereafter the suit was fixed for peremptory hearing. Defendant/petitioner immediately filed an application under Order 9, Rule 13 CPC Vide Misc. Case No. 189 of 2005 before the learned Chief Judge, Small Causes Court for setting aside the ex-parte order and the Misc. case was allowed on contest. Thereafter the suit was fixed for peremptory hearing. It was alleged that during the cross-examination of the plaintiff, the learned advocate for the petitioner/defendant noticed that civil deposit has been made in the instant suit till December 1999 and subsequently no deposit could be made due to the demise of the then conducting advocate for the petitioner/defendant and thereafter suit was transferred from the City Civil Court to Small Causes Court, Calcutta. It was claimed that the leaned advocate conducting the defendant’s case ought to have deposited the amount on behalf of the petitioner/defendant. However, due to demise of conducting advocate, civil deposit could not be made. 4. The defendant/petitioner filed two applications under section 151 CPC. Out of two applications, one application was moved for allowing the petitioner/defendant to deposit current rent on and from January 2008 onwards which was allowed by the learned court below vide order 109 dated 9th April 2008. The other application filed by the petitioner for determination of arrear of rent and payment of the same by way of easy instalment since January 2000 to December 2007 was rejected vide order no. 121 dated 23rd July 2009. The opposite party/plaintiff after the order of rejection of the second application of the petitioner/defendant moved an application under section 17(3) of the West Bengal Premises Tenancy Act 1956. Petitioner duly filed written objection. Learned court below after hearing both sides was pleased to allow the application of the plaintiff/opposite party’s application under section 17(3) of the aforementioned Act by its order dated 2nd March 2010 thereby striking out the defence against the delivery of possession. The said Ejectment suit was again transferred to the learned judge, 6th Bench, Presidency Small Causes Court, Calcutta. 5. Learned counsel appearing for the petitioner submits that the order impugned striking out the defence was passed on 2nd March 2010. There is considerable delay in filing this application and the same was due to extreme financial crisis as the petitioner is a retired person and the petitioner is suffering ailments. Learned counsel submits that certified copy of the order was not available. There is considerable delay in filing this application and the same was due to extreme financial crisis as the petitioner is a retired person and the petitioner is suffering ailments. Learned counsel submits that certified copy of the order was not available. He submits only after receiving conducting advocate’s advice to obtain certified copy of the order, on 11th August 2010 petitioner applied for certified copy and the same was obtained on 18th August 2010 but due to financial crisis and ill-health, he could not file application earlier. However, one civil revision was filed under Article 227 of the Constitution of India being C.O 292 of 2011 in which some technical defects were there and the revisional application was dismissed on 14th February 2011. Learned counsel submits this court was pleased to grant liberty to file a fresh revisional application in accordance with law. He submits now the petitioner has filed this revisional application against the order dated 2nd March 2010 allowing 17(3) application filed by the opposite party/plaintiff. Learned counsel submits that due to death of learned advocate for the petitioner, no step could be taken. Learned counsel submits that petitioners being the present defendants including the original defendant paid money to the learned advocate for depositing the same as directed by the learned judge and the learned advocate was obliged to deposit the same. However, since the leavened advocate has expired, it could not be ascertained whether all deposits were made or not. Learned counsel submits because of the transfer of the original suit from the City Civil Court to Presidency Small Causes Court, petitioner could not track the proceedings. Therefore they had no other alternative but to wait. They engaged a second lawyer and with his help they could find out that original suit was transferred to Presidency Small Causes Court and it was numbered as Ejectment Suit No. 878 of 2002. Learned counsel submits that the order passed on 2nd March 2010 is erroneous in law. He has submitted that by order dated 5th December 1994 defendant was directed to deposit arrear rent assessed at Rs.3220/- at the rate of Rs.100/- along with rent per month. According to him, rent was paid up to 1999. Therefore, it could be presumed that entire money is paid. He has submitted that by order dated 5th December 1994 defendant was directed to deposit arrear rent assessed at Rs.3220/- at the rate of Rs.100/- along with rent per month. According to him, rent was paid up to 1999. Therefore, it could be presumed that entire money is paid. Learned counsel submits that all the deposit receipts were lying with the erstwhile learned advocate and those documents were not handed over. However, he submits that the rent challan for the month of November 1997 paid on 9th December 1997 was also produced before the learned court below. He submits that the defendant is always desirous to deposit rent in respect of the suit property. He also submits that the learned court below allowed the petitioner to deposit rent @ Rs.40/- per month on and from January 2008 in one of their applications filed under section 151 CPC. But the other application was for determination of arrear rent and the payment thereof by way of easy instalment since January 2000 to December 2007 was rejected vide order dated 23rd July 2009. Learned counsel submits that the learned court below without taking note of the facts involved in this case have erroneously rejected the second application. He submits that the application filed by the petitioner for restoration of the suit under Order 9, Rule 13 was allowed and ex-parte decree was obtained by the opposite party/plaintiff was set aside. He submits that in fact the learned court below has accepted the contentions and/or submissions made on behalf of the petitioner. Learned counsel submits that the order passed on 2nd March 2010 is erroneous in law and should be set aside. Learned counsel further submits that the petitioner/defendant should be allowed to deposit the dues on assessment to be made by the learned court below. Learned counsel cited one high court judgment reported in Dilip Sur v. Sm. Pushpa Mitra & Another, 1978 (2) CLJ 276, in support of his contention and submits that without enquiring into the truth of explanation for delay, court should not strike out defence against delivery of possession on application under section 17(3). He has cited some other judgments of this court and the judgment of the Hon’ble apex court reported in M/s. BP Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick & Another, AIR 1987 SC 1010 . He has cited some other judgments of this court and the judgment of the Hon’ble apex court reported in M/s. BP Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick & Another, AIR 1987 SC 1010 . Learned counsel submits that the provision under section 17(3) is not mandatory. He also submits that in a very recent decision reported in Ashok Kumar Bhagnani v. Mansur Ahmed, 2015 (4) CHN 699 , the learned single judge of this court held “the use of the power of the court to strike out the defence of the defendants has drastic consequences. It is to be used by the court as a last resort against a defiant tenant. A discretion is vested in the court, not a mandate which is to be used judiciously.” Learned counsel submits that the learned court below misdirected itself and have erroneously came to a conclusion which is not sustainable in law. 6. On the contrary learned counsel appearing for the plaintiff/opposite party submits that the statements which were made in this revisional application specifically the statements made in paragraph 5 and 7 are false, incorrect and untrue. Learned counsel submits that the petitioner deliberately and intentionally made this incorrect statement before this court and affirmed it as true to his knowledge. Learned counsel submits that the entire order sheet which he has produced would show that the petitioner/defendant was present before the learned court below on all occasions. The story of failing to find out the whereabouts of the matter because of transfer or because of death of their erstwhile advocate is totally false. Learned counsel placed orders being order no. 49-65 and submits that on all occasions defendant’s learned advocate was present. They have their knowledge about the transfer, they have their knowledge about the order passed in 1994 asking them to deposit Rs.100/- per month along with current monthly rent but they did not deposit the same deliberately and intentionally. Learned counsel submits that the statements made in para 7 claiming that the civil deposit has been made till December 2009 is also incorrect. He submits that the petitioner has come up with unclean hands and, therefore, this revisional application should be dismissed. He also submits that the order impugned rejecting their application for fresh assessment and allowing deposit was passed as back as in 2009. That order of 2009 was in the knowledge of the petitioner. He submits that the petitioner has come up with unclean hands and, therefore, this revisional application should be dismissed. He also submits that the order impugned rejecting their application for fresh assessment and allowing deposit was passed as back as in 2009. That order of 2009 was in the knowledge of the petitioner. Since out of two applications, one was allowed and the second one was rejected but the said order was never questioned before this court. Learned counsel submits that even 2010 order allowing 17(3) application although questioned at a belated stage in 2011, that revisional application of 2011 was rejected. Thereafter this revisional application was filed. Learned counsel submits that the order of assessment which was passed in 1994 ought to have been complied by them. The defendant is not diligent and they have no hesitation to disobey the order passed by the court. They did not make payment as directed by the court below. Therefore, there is nothing wrong in the order dated 2nd March 2010. 7. Learned counsel submits it is now settled proposition of law that once the rent assessed under section 17(1) and 17(2) is not paid then the natural consequence would fall in terms of section 17 sub-section 3 of the Premises Tenancy Act 1956. Learned counsel submits that neither the order dated 23rd July 2009 is an incorrect order nor the order passed on 2nd March 2010 was an incorrect order. He submits that the original defendant Solaiman Ahmed Salewjee died intestate on 19th January 2013. Therefore the story of non-availability of records and not tracing the file by the petitioner are of no subsistence. 8. Learned counsel relied upon few judgments in support of his submission and submits that “if a tenant fails to deposit or pay any rent referred to sub-section (1) or sub-section (2) within the time specified therein or within such extended time as may be allowed in Clause (a) of sub-section (2) (a) for failing to deposit or any sub-section under Clause (b) of subsection (2A) within the time fixed therefor, the court shall order the defence against delivery of possession to be struck out and shall proceed with the filing of the suit.” He has cited the first judgment delivered by a learned single judge of this court in C.O 2654 of 2006. Learned counsel cited another judgment delivered by a learned single judge of this court delivered in C.O. No. 941 of 2010. He submits that there is deliberate non-compliance on the part of the petitioners/defendants and their predecessor-in-interest. Therefore this revisional application must fail. He also submits that rejection of the application filed by the petitioners’ predecessor in 2009 was also rejected which was never questioned by them till date. 9. Having heard the learned Counsel appearing for the parties and considered the materials available on record and also the pleadings of respective parties, this Court is of the view that there is no illegality whatsoever in the order dated 2nd March, 2010. It would appear from the facts involved in this case that the Ejectment Suit was filed in the year 1992 before the learned City Civil Court at Calcutta which was numbered as Ejectment Suit No. 604 of 1992. The original defendant was contesting the matter by filing written statement. He moved an application in 1994 and the learned Court below made an assessment of total arrear rent on the application filed by the defendant under Section 17(2) of the West Bengal Premises Tenancy Act, 1956. The application was disposed of on 5th December, 1994. The defendant was directed to pay a sum of Rs.3220/- as arrear rent and interest by way of instalment at the rate of Rs.100/- per month along with rent of every month till the arrear is exhausted. Learned Court below is satisfied that there is no material on record by which it could be said that the defendant no.1 complied with the said order dated 5th December, 1994. Now the plea is taken that due to demise of the erstwhile learned Advocate the defendant could not take proper step to deposit the amount so directed by the learned Court below in 1994. But this plea is incorrect. On perusal of order sheet of learned Court below it is evident that on all occasions the learned advocate for the defendant was present before the Court. It was also contended that some amount of money was handed over to the learned Advocate and he has failed to deposit. But there is no material on record by which it could be substantiated that any amount was ever paid to the erstwhile learned Advocate. It was also contended that some amount of money was handed over to the learned Advocate and he has failed to deposit. But there is no material on record by which it could be substantiated that any amount was ever paid to the erstwhile learned Advocate. Further plea of deposit till 1999 was tekan by the defendant but there is nothing on record to show, except one challan showing one deposit, no deposit was made. Moreover the order was passed on 5th December, 1994 to deposit entire arrear by way of instalment at the rate of Rs.100/- per month along with current was not complied with. There is no evidence of paying current rent either. The statement that the file was transferred and therefore the defendant has no knowledge about the case records is not correct. It also appears from the order-sheet produced by the learned Advocate for the opposite parties/plaintiffs that the matter was contested and defendant’s advocate was present on all occasions. Therefore, all incorrect and misleading statements were made in the revisional application. Thus, it is clear that the defendant has come up before this Court with unclean hands and on that score the revisional application should be dismissed. The averments made in paragraphs 5 and 7 of the revisional application to the effect that the suit transferred from City Civil Court to Presidency Small Causes Court for disposal and after transfer of the suit the petitioner/defendant failed to find out whereabouts of the said matter and after a long search in the year 2005 the petitioner/defendant traced out the file of the said Ejectment Suit. However, from Order nos. 49 to 65 of the learned Court it is evident that almost on all occasions the petitioner’s learned Advocate was present, therefore, these statements are all incorrect and untrue, deliberately made to misdirect and mislead this Hon’ble Court to snatch an order in favour of the petitioner. The petitioner/defendant had knowledge about the movement of the case records and its whereabouts. It was also in his knowledge that he is to deposit the entire arrear amount by way of instalment along with current but deliberately he did not deposit the same. It is on record that the suit was decreed ex-parte in the year 2005. The petitioner/defendant had knowledge about the movement of the case records and its whereabouts. It was also in his knowledge that he is to deposit the entire arrear amount by way of instalment along with current but deliberately he did not deposit the same. It is on record that the suit was decreed ex-parte in the year 2005. Subsequently, an application was filed by the petitioner/defendant for restoration and the ex-parte decree was set aside and the Ejectment Suit was restored. After restoration there was no effort on the side of the defendant/ petitioner for taking steps to deposit the amount. It is on record that the defendant/petitioner moved two applications under Section 151 of the Code of Civil Procedure, one is of 11th March, 2008 and the other one is of 6th August, 2008. The first application dated 11th March, 2008 which was made for allowing the defendant to pay the current monthly rent was allowed whereas the second application dated 6th August, 2008 praying for reassessment of arrear rent since January, 2000 to December, 2007 was rejected vide Order dated 23rd July, 2009. The said order was never questioned by the petitioner/defendant. After rejection of the said application on 23rd July, 2009 the plaintiffs/opposite parties moved an application under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 which was allowed by the learned Court below. However, it is evident that the defendant did not deposit as per order passed in 1994. He has not deposited the arrear by way of instalment as well as the current rent and once the tenant fails to deposit or pay rent under sub-section (1) and (2) of Section 17 of the Act within the time specified therein or within the extended time allowed in terms of the provisions under sub-section (2) of Section 17 of the West Bengal Premises Tenancy Act, 1956, the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit. Here in the instant case learned Court below found that the order of 1994 reached its finality. The second application for reassessment of the arrear from January, 2000 to December, 2007 has no merit and also rejected which was never questioned by the petitioner. The claim of making payment till 1999 is also not correct, therefore, there is nothing wrong in the order. 10. The second application for reassessment of the arrear from January, 2000 to December, 2007 has no merit and also rejected which was never questioned by the petitioner. The claim of making payment till 1999 is also not correct, therefore, there is nothing wrong in the order. 10. Since the defendant/petitioner failed to deposit the amount as directed the learned Court below allowed the application filed by the plaintiffs/opposite parties under sub-section (3) of Section 17 of the Act, 1956. Once the deposits are not made as assessed by the learned Court within the extended period whether in its entirety or by way of instalment then the natural consequence would be striking out defence under Section 17(3) of the Act. The same result has come out in the instant proceeding. 11. The defendant is bound to bear the consequence of default committed by him. So far exercising discretionary power under Section 17(3) of 1956 Act is concerned, this Court is of the view that the defendant/petitioner is to show his/her bona fide. It is now settled that discretionary power could be exercised when situation was beyond control of the defendant to make payment or deposit in favour of the landlord/plaintiff. But the present case is not such a case. There is wilful neglect and act of ignoring the order passed by the learned Court on the defendant’s side in making deposit of current rent along with the instalment as directed by the learned Court below. Therefore, exercise of discretionary power or taking a lenient view in favour of a tenant will not be justified at all and accordingly, in this case the question of doing mercy do not arise. 12. In my view, the learned Trial Judge has rightly allowed the application under Section 17(3) of 1956 Act on contest thereby striking the defence against delivery of possession in respect of the suit premises. 13. Accordingly, there is no merit in this revisional application. This revisional application is, thus, dismissed without costs.