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2017 DIGILAW 920 (CAL)

Sibsankar Bhakat v. Radharani Bhakat

2017-11-24

MIR DARA SHEKO

body2017
JUDGMENT : MIR DARA SHEKO, J. 1. The CO being No. 1904 of 2016 along with CO No. 1332 of 2016 and CO No. 1923 of 2016, were heard simultaneously, since point at issue was the same and identical, as to whether after determination of the arrears of rent and direction of the Court for making its deposit with statutory interest, if default recurred during pendency of the eviction suit in the matter of making such deposit of the sum equivalent to the rent payable in the suit premises, in that case whether said default is condonable, or alternatively, for making such default the defence against delivery of possession is to be struck out. The point at issue was dealt with in details by discussing Various cases cited at the bar in the case of Mithun @ Akhtar Ali v. Sk. Azizul Haque & Ors. in CO. No. 1332 of 2016, effect of which shall also be followed in the instant case. 2. In the case On hand, learned Civil Judge (Junior Division) II Court, Asansol in the suit by determining the arrears of rent directed the petitioners/defendants/tenants (who will be called on hereinafter shortly as the petitioners) to satisfy the arrear amount by 10 equal instalments and also were directed for making payment of the current rent from the month of November 2011, thenceforth, in accordance with law. Instead of complying the said order however, was tested by filing one application under Article 227 of the Constitution of India being CO No. 803 of 2012. This Court on 26th June 2012, virtually by upholding the order of the learned trial Court, with a rider regarding payment of current rent disposed of the CO. with direction, which is set out hereunder: "If there is any default In payment of the current rent from November 2011, such default may be made good in course of the next two months". 3. It is needless to mention that this Court while exercising its power of judicial review within the ambit of Article 227 of the Constitution of India instead of re-examining the fact or evidence, only examines the procedure and law applied thereto to satisfy as to whether law and procedure applicable to the matter were relevantly applied or not, or, as whether any miscarriage of justice was caused for its non-application. 4. 4. As it has been indicated in the order impugned "since no direction was given by the appellate Court to deposit the arrears of monthly rent as well as current monthly rent the defence thought it was not obligatory upon them to deposit any amount." From the above perspective it reveals that it was perceived by the petitioners in one hand that they thought that they were not supposed to deposit any amount towards current monthly rent since it was not obligatory and, on the other hand they did not deposit the sum as there was no direction of the appellate Court. This Court already has indicated that learned trial Court while disposing of the application under Section 17(2) of the Old West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the old Act) determining apart from direction to make payment of the arrears by instalments also directed the petitioners to make payment of current rent from the November 2011, in accordance with law. So far as making deposit of the sum equivalent to the current rent is concerned there is no basic difference between the old provision of Section 17(1) or new provision Section 7(1) of the West Bengal Premises Tenancy Act, since it has to be deposited by 15th of each succeeding English calendar month, till disposal of the suit, if not otherwise directed. It has also been indicated above that when the said order of trial Court was decided in CO. 803 of 2012, this Court again warned so that the petitioners may not fall in default. So far as making payment of current rent. Therefore, the alibi of making thought of their own that the petitioners had neither any obligation nor any direction from the Court to make deposit as regard the sum equivalent to the current rent is so hopeless that it is unfit to incur any confidence or credence of the Court for the purpose of stretching any discretionary relief in the name of interest of justice. The terms 'discretion" and or the "interest of Justice" have also been dealt with in details in the case of Mithun @ Akhtar Aliv. v. Sk. Azizul Haque & Ors. in CO. No. 1332 of 2016 (supra) which need not be reiterated, as, that will be nothing but a mere repetition. 5. The terms 'discretion" and or the "interest of Justice" have also been dealt with in details in the case of Mithun @ Akhtar Aliv. v. Sk. Azizul Haque & Ors. in CO. No. 1332 of 2016 (supra) which need not be reiterated, as, that will be nothing but a mere repetition. 5. The learned Counsel for the petitioners prayed for an opportunity so that deposit of current rent can be made by her client and the defence against delivery of possession cannot be struck out and that was vehemently opposed by the opposite party. 6. This Court on and again has reiterated that due to violation of statutory provision in any pending proceeding by either of the parties if some valuable right is accrued in favour of the other side, then the other side deserves to enjoy it and the same should not be splashed away in the name of interest of justice or by exercising judicial discretion, because, the judicial discretion is not an one-sided game, it has to be exercised basing upon the principles of natural justice, equity, fair play and good conscience. In the case of hand, when the petitioners at the first instance while getting application under Section 17(2) of the Old West Bengal Premises Tenancy Act, adjudicated got the opportunity to comply with the provisions of law but he did not. Again while the petitioners had tested the said order of the learned trial Court before this Court and he failed to gain any protection by the order of the Court to comply as regard making payment of current rent, her remained oblivious. Coming back to suit when the application was filed by the opposite parties to get necessary order under Section 7(3) of the Act, since by this time the new Act of West Bengal Premises Tenancy has come into force and the learned Trial Judge unhesitatingly extend the said statutory right available to the landlord/opposite parties under Section 7(3) of the new Act. 7. 7. In the Act as the obligation of the landlord and tenant has been well specified and since without maintaining the statutory formalities the landlord has been prevented even from taking any legal step for evicting his tenant without due process of law, and that too subject to strict proof of the grounds of eviction, similarly the tenant, after becoming statutory tenant shall have to be complied with the statutory formalities, if he wants protection from illegal eviction, meaning thereby, if during pendency of the suit the statutory tenant failed to comply with the provisions of law to discharge his statutory obligations then legal consequence shall be followed, meaning thereby, defence against delivery of possession shall be struck off. Therefore, the non-compliance by the statutory tenant in one hand gives rise of statutory obligatory right in favour of the landlord, on the other hand, for which filing of an application is not necessary. It would be the duty of the learned trial Court to record appropriate order by stretching the relief under Section 17(3) of the old Act or Section 7(3) of the new Act, as case may be. 8. Therefore, on examining the impugned order No. 27 dated 16.03.2016, passed by the learned Civil Judge (Junior Division) II Court Asansol in Title Suit No. 76 of 1999 within the ambit of Article 227 of the Constitution of India this Court in addition to the observations made already in the case of Mithun @ Akhtar Ali v. Sk. v. Azizul Haque & Ors. in CO. No. 1332 of 2016 (supra) hold that the order does not suffer from any legal infirmity or perverseness, therefore, by upholding the said order the CO being 1904 of 2016 stands dismissed with cost of Rs. 5,000/- (Rupees five thousand) which shall be payable before the learned Trial Court by the petitioners within a period of two months, failing which the respondents landlords may be at liberty to take appropriate legal step. 9. Parties will be at liberty to get xerox certified copy of this order upon production of a document of payment of requisite Court fees and after fulfilling all necessary formalities. With the aforesaid direction this application stands dismissed.