Research › Search › Judgment

Calcutta High Court · body

2017 DIGILAW 180 (CAL)

Omprakash Thakur v. Bhola Shaw

2017-02-15

ASHIS KUMAR CHAKRABORTY

body2017
JUDGMENT : ASHIS KUMAR CHAKRABORTY, J. 1. This revisional application is directed against the order dated June 08, 2016 passed by the learned Civil Judge (Junior Division) 4th Court at Sealdah in Ejectment Case No. 72 of 2007. By the impugned order, the learned Court below allowed the application filed by the opposite party-defendant-tenant for condoning the delay in depositing the rent for certain months. The facts giving rise upto the present revisional application are that the petitioner filed the suit, before the learned Court below claiming a decree for recovery of possession of the suit property by evicting the opposite party. The suit is filed under the West Bengal Premises Tenancy Act, 1997 (in short "the Act of 1997"). The opposite party claimed that after receipt of the writ of summons of the suit, he started to deposit the arrear-admitted rent under Section 7(1) of the Act of 1997. 2. As per Section 7(1)(c) of the Act of 1997, the defendant tenant shall continue to pay the landlord or deposit with the Court the monthly rent within 15th day of each succeeding month, failing which his defence against delivery of possession is liable to be struck out under Section 7(3). Undisputedly, for the month of April, 2009 and the month of May, 2015 the opposite party failed to comply with the obligation, under Section 7(1)(c) of the Act of 1997, to deposit the rent with the learned Court below within the 15th day of the respective succeeding month. 3. On July 15, 2015 the opposite party filed an application before the learned Court below for condonation of delay of the late deposit of the rent for the month of April, 2009 and the month of May, 2015. The petitioner contested the said application. By order dated June 08, 2016 the learned Court below allowed the said application. As stated earlier, it is the said order dated June 08, 2016 which is the subject matter of challenge in this revisional application. 4. The petitioner contested the said application. By order dated June 08, 2016 the learned Court below allowed the said application. As stated earlier, it is the said order dated June 08, 2016 which is the subject matter of challenge in this revisional application. 4. It is submitted on behalf of the petitioner that from a reading of the entire Section 7 of the Act of 1997 and the sub-sections there under it is clear that there is no scope for the Court to extend the time for payment of the admitted current monthly rent beyond the period of the 15th day of the next succeeding month as stipulated in Section 7(1)(c) of the Act of 1997 and, as such, when the defendant opposite party failed to deposit the rent for the month of April, 2009, as per the mandatory provisions of Section 7(3) of the Act of 1997 his defence against delivery of possession stood struck out and the learned Court below fell into an error of law in passing the impugned order. In support of such contention, the petitioner relied on the decision of the Supreme Court in the case of Nasiruddin & Ors. v. Sita Ram Agarwal, reported in (2003) 2 SCC 577 and the decision of this Court in the case of Bina Debi Binani v. Ramesh Kumar Gupta, reported in (2015) 3 CLT (H.C.) 384. 5. However, the learned Advocate appearing for the defendant opposite party submitted that the impugned order passed by the learned Court below suffers from no infirmity of law. 6. Relying on the decision of the Supreme Court in the case of B.P. Khemka (P) Ltd. v. Virendra Kumar Bhowmik reported in AIR 1987 SC 1010 , it was submitted on behalf of the opposite party that the provisions in Section 7(3) of the Act of 1997 shall be construed to confer a discretionary power on the Court to reject or allow an application for striking out the defence of the Government tenant for failing to pay to the landlord or deposit to the Court either the current rent under Section 7(1)(c) or the adjudicated arrear rent under Section 7(2) of the said Act. The learned advocate appearing for the defendant opposite party also cited the decision of the Division Bench of this Court in the case of Subrata Mukherjee v. Bishakha Das reported in 2012 (3) CHN (Cal) 423 : (2012) 1 WBLR (Cal) 595 (para-41). 7. I have considered the materials on record and the arguments advanced by the learned Advocates appearing for the respective parties. The decision of the Supreme Court in the case of B.P. Khemka (P) Ltd. (supra) arose out of the provisions contained under Section 17 of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as "the Act of 1956"). Under Section 17(2A) of the Act of 1956 the Court had the unrestricted power to extend the time to deposit or pay the rent, including arrear rent by the defendant tenant. In the case of Nasiruddin (supra), while considering the scope of effect of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 which are pari materia with the provisions contained in Section 7(3) of the Act of 1997, the Supreme Court distinguished the decision in the case of B.K. Khemka (supra) and held the word "shall" appearing in Section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 is imperative. The said decision of the Supreme Court in the case of Nasiruddin (supra) was followed by the Division Bench of this Court, in the case of Subrata Mukherjee (supra). In the said case the issue which fell for consideration before the Division Bench of this Court is whether the time limit fixed for payment to the landlord/after adjudication of the dispute with regard to the rate of rent with the extended time limit, as mentioned in the Proviso to Section 7(2) of the Act of 1997 is flexible or inflexible and whether an application can be filed under Section 5 of the Limitation Act for extension of time to deposit the arrear rent beyond the period stipulated under the Proviso to Section 7(2) of the Act of 1997. Following the decision of the Supreme Court in the case of Nasiruddin (supra) in paragraph 41 of the said decision Subrata Mukherjee (supra), the Division Bench of this Court held as follows: "41. Following the decision of the Supreme Court in the case of Nasiruddin (supra) in paragraph 41 of the said decision Subrata Mukherjee (supra), the Division Bench of this Court held as follows: "41. However, the time limit tied for payment to the landlord, after adjudication of the dispute with regard to the rate of rent with the extended time limit, as mentioned in the proviso of sub-section(2), is inflexible and this cannot be extended by the Court under any circumstances, naturally, provisions of Section 5 of the Limitation Act will not be applicable." 8. Following the decision of the Supreme Court in the case of Nasiruddin (supra) and Subrata Mukherjee (supra), this Court, in the case of Bina Devi Binani, held that the word "shall" used in Section 7(3) of the Act of 1997 is imperative and in view of the provisions contained in Section 7(3) of the Act of 1997, the striking out of defence of the defendant-tenant takes place by operation of law. Even in an unreported decision dated December 15, 2016 passed in C.O. 3971 of 2016 (Jaladeb Guchait @ Jaladev Guchait v. Sankar Kumar Das) this Court once again held that from a reading of the provisions of Section 7 and the sub-sections there under, it is clear that it is only as per the proviso to Section 7(2) of the Act of 1997 the Court has the power to extend the time for payment of the arrear rent, adjudicated by it, only once but the Court has no power to extend the time for deposit of the current rent month by month by the 15th of each succeeding month under Section 7(1)(c) of the Act of 1997, Therefore, the learned Court below had no jurisdiction to exercise any discretion to extend the time to deposit the defaulted rent by the opposite party. 9. In the present case, when the defendant opposite party did not deposit the admitted amount of monthly rent within May 15, 2009 the provisions contained in Section 7(3) of the Act of 1997 became operative and his defence against delivery of possession of the suit property stood struck out and the impugned order passed by the learned Court below cannot be sustained. 10. For the reasons as aforesaid, the revisional application, being CO. 10. For the reasons as aforesaid, the revisional application, being CO. 3876 of 2016, stands allowed and the impugned order passed by the learned Civil Judge (Junior Division), 4th Court at Sealdah is set aside. There shall, however, be no order as to costs.