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2017 DIGILAW 837 (CAL)

Dilip Das v. Jyotsna Das

2017-11-02

HARISH TANDON

body2017
JUDGMENT : HARISH TANDON, J. 1. This revisional application is directed against an order dated August 23, 2017 passed by the learned Additional Civil Judge (Junior Division), Sealdah in Ejectment Suit No. 441 of 2005, by which an application under Section 151 of the Code of Civil Procedure for condonation of delay in depositing the arrears of rent was rejected on contest. Admittedly, in a suit for eviction of a monthly tenant on one or more grounds enumerated under Section 6 of the West Bengal Premises Tenancy Act, 1997, (hereinafter referred to as "the said Act") the petitioner took out an application under Section 7(2) of the said Act raising disputes on the period of default. The said application was disposed of on December 18, 2008 directing the petitioner to deposit a sum or Rs. 1,580/- within a month from date. Naturally such deposit is to be made on/or before January 17, 2009. The petitioner applied for extension of time to deposit the said amount on the last date of the deposit i.e. January 17, 2009. 2. It is not in dispute that the application for extension was neither taken up by the court nor any date was fixed for hearing thereof and is still pending in the record. Sensing the serious consequences, which shall follow for non-deposit of the said amount, the petitioner deposited the same on February 17, 2009. Neither the court nor any of the parties took steps for disposal of the said application. The matter was thereafter proceeded with and the evidence of the respective parties was recorded. The suit was thereafter fixed for argument. 3. At this juncture, the petitioner realized that unless the said application seeking extension of time is disposed of by the court, even if the deposit is made by him within three months from the date of the order, it may not be treated as valid. An application under Section 151 of the Code of Civil Procedure was taken out seeking condonation of delay in depositing the said amount. A further application was taken out drawing attention of the court that the application seeking extension of time to deposit the rent determined under Section 7(2) of the Act has not been disposed of and prays for disposal thereof. Both the applications are rejected by the court and the said order is challenged in the instant revisional application. 4. A further application was taken out drawing attention of the court that the application seeking extension of time to deposit the rent determined under Section 7(2) of the Act has not been disposed of and prays for disposal thereof. Both the applications are rejected by the court and the said order is challenged in the instant revisional application. 4. It is submitted by the petitioner that a litigant should not suffer for the fault of the court. It is further submitted that proviso appended to Section 7(2) of the Act empowers the court to extend the time to deposit the rent determined under the aforesaid sub-section only once with the upper ceiling limit of two months and if the deposit has been made within the outer limit, such deposit should have been considered as validly made. It is thus submitted that there is no fetter on the part of the court to extend the time and permit the deposit to be made within the extended time. The manner in which the trial court rejected the said application is contrary to the decision of the Apex Court rendered in Jang Singh v. Brij Lal & Ors. reported in AIR 1966 SC 1631 . The reliance is further placed upon a judgment delivered in the case of Sushil Kumar Mishra v. Shatrughna Prasad Singh reported in 2015 (4) ICC 668 (Cal) where this court has an occasion to consider that no litigant should suffer by the act of the court. 5. The learned Advocate for the opposite party submits that the opposite parties did not file an application for striking out the defence of the petitioner and, therefore, there is no illegality in the impugned order by which the court rejected the aforesaid application. It is thus submitted that it was a duty of the petitioner to remind the court that an application for extension of time to deposit the rent determined under the aforesaid provision and having not done so and allowed the suit to reach the stage of argument, such applications are not maintainable and there is no illegality committed by the trial court in rejecting the same. 6. 6. On the conspectus of the aforesaid provisions the first and foremost thing that this court feel relevant in determining the issues, is whether a litigant or a party should suffer for the act of the court and a legal obligation is foisted upon them to awake the court by drawing an attention that the application is pending and has not been disposed of. To answer the aforesaid point, this court feels apposite to recapitulate the legal maxim "actus curiae neminem gravabit" meaning thereby "the act of the court should not cause prejudice to the litigant". The aforesaid legal maxim has been duly recognized by the Apex Court in Jang Singh's case (supra) in the following words:- Para - 6. The facts of the case almost speak for themselves. A search was made for the application on which the order of the Court directing a deposit of Rs. 4950/- was said to be passed. That application remained untraced though the District Judge adjourned the case more than once. It is, however, quite clear that the challan was prepared under the Court's direction and the duplicate challan prepared by the Court as well as the one presented to the Bank have been produced in this case and they show the lesser amount. This challan is admittedly prepared by the Execution Clerk and it is also an admitted fact that Jang Singh is an illiterate person. The Execution Clerk has deposed to the procedure which is usually followed and he has pointed out that first there is a report by the Ahmed about the amount in deposit and then an order is made by the Court on the application before the challan is prepared. It is, therefore, quite clear that if there was an error the Court and its officers largely contributed to it. It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligation, under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensure that the correct information is furnished. If the Court in supplying the information makes a mistake, the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court. If the Court in supplying the information makes a mistake, the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court. If the litigant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused. There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim: "Actus curiae neminem gravabit". 7. I had the occasion to consider the identical situation in Sushil Kumar Mishra's Case (supra) wherein it is held unequivocally that the court should not harm or cause injury to the litigant for its act. It is, therefore, a duty of the court to dispose of the application taken out by the parties and should not shirk the responsibility on the litigant that they have not reminded the court of its duty. A litigant should not be allowed to suffer for the laches on the part of the court and it would be giving a premium if the court sheds its lapses and negligence and pass on its responsibility on the litigant and causing him to suffer for his silence. Though a litigant should be vigilant in the carriage of the proceeding and promptly react to the situation if it causes any prejudice, it is a duty of the litigant to jettison the said application with promptitude. On the other hand, it is the equal responsibility of the court to see that the justice is done to the litigant or seem to have been done. 8. Enabling provision of sub-section (2) of Section 7 of the Act cast a statutory obligation and duties upon the court to determine the disputes raised by the tenant and it would not be wrong to say that the court is denuded of the power to dismiss the application under the aforesaid provision as dismiss for default. 8. Enabling provision of sub-section (2) of Section 7 of the Act cast a statutory obligation and duties upon the court to determine the disputes raised by the tenant and it would not be wrong to say that the court is denuded of the power to dismiss the application under the aforesaid provision as dismiss for default. If such statutory right is given to the court and the proviso appended thereto bestowed power to extend the time with an outer limit only once, it is obligatory and imperative on the court to decide the said application so as to avoid the parties to remain in lurch. 9. The learned Judge ought to be generous to accept the lapses on his part and should have taken up the said application seeking extension instead of dismissing the application by which the attention of the learned Judge was drawn to non-disposal of the same. 10. The order impugned is set aside. 11. The trial court is directed to take up an application filed by the petitioner on January 17, 2009 and shall see that the same is disposed of within two weeks therefrom. It goes without saying that the trial court shall take into account the amount adjudged under the aforesaid provision to have already deposited on February 17, 2009. The revisional application is thus allowed. No order as to costs.