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2017 DIGILAW 964 (CAL)

Niranjan Kumar Sudh v. Rani Devi Agarwal

2017-12-08

SIDDHARTHA CHATTOPADHYAY

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JUDGMENT : Siddhartha Chattopadhyay, J. Challenge in this revisional application is to the Orders No. 149 dated February 23, 2017; Order No. 155 dated July 20, 2017 and Order No. 157 dated August 7, 2017 passed by the learned Judge 2nd Bench, Small Causes Court in connection with Ejectment Suit No. 258 of 2001. 2. The present petitioners are the plaintiffs of that Ejectment Suit No. 55 of 1995. He has filed the suit against the defendant/opposite party on the ground of reasonable requirement and default in payment of rent since April 1989. According to the petitioners, initially one Ghanshyam Das Agarwal was a monthly tenant under one Achambhelal Sadh, since deceased, in respect of three rooms on the first floor of Premises No. 9, Chore Bagan Lane, P.S. Jorasanko, Calcutta-700007 at rental of Rs.205/- payable according to English Calendar month. The said Achambhelal Sadh died leaving a registered Will and by which he bequeathed his properties to the petitioners. In the year 1991 he obtained a letter of administration in respect of the said will and took charge of all the properties in terms of the said will. He used to collect rent from the tenant of the suit premises by granting rent receipts. On 7th July, 1994, he had sent a notice to quit to the predecessor of the opposite party and since they did not respond to such notice he has filed an ejectment suit. The defendant/tenant, however, entered appearance and contested the said ejectment suit. Initially Ghanshyam Das Agarwal was contesting and after his demise the present respondents have been substituted and now they are carrying on the said litigation. In the year 2001 the said ejectment suit was transferred from the City Civil Court at Calcutta, Presidency Small Causes Court at Calcutta and the suit was renumbered as Ejectment Suit No. 258 of 2001. In spite of having such knowledge the defendant/tenant had been depositing the current the rent in the City Civil Court at Calcutta up to the month of December 2004 to the credit of the petitioners without depositing the same before the trial court i.e. Presidency Small Causes Court at Calcutta. In spite of having such knowledge the defendant/tenant had been depositing the current the rent in the City Civil Court at Calcutta up to the month of December 2004 to the credit of the petitioners without depositing the same before the trial court i.e. Presidency Small Causes Court at Calcutta. Since the defendant/tenant did not pay the rent even after appearance before the appropriate forum, he filed an application under Section 17(3) of West Bengal Premises Tenancy Act 1956 seeking for an order of striking out the defence of the defendant against delivery of possession of the suit premises. 3. After the case was transferred to the Small Causes Court at Calcutta the defendant appeared there and filed an application under Section 17(1) of the said Act, for an order to deposit rent in the Small Causes Court at Calcutta. In the meantime, the original defendant being died, their successors were substituted and accordingly on 22.08.2014, they have filed an application under Section 151 of C.P.C. with a prayer for an order from the learned trial court that their deposit of rent in City Civil Court be treated as a valid deposit. The learned trial court allowed the said prayer of the defendants by showing reason in the impugned orders. 4. Challenging the legality and doubting the correctness of the said orders, the plaintiff/petitioners have filed this revisional application, contending inter alia, that the deposit made before the City Civil Court at Calcutta cannot be termed as a valid deposit because it was supposed to be deposited before the trial court. Admittedly in the year 2004 the Ejectment Suit No. 55 of 1995 has been transferred and renumbered as Ejectment Suit No. 258 of 2001, and has been pending before the 2nd Bench, Presidency Small Causes Court at Calcutta. 5. This Court had the occasion to hear the erudite submission made by the respective parties. In the interest of academic discussion, it can be said that under the old act there were three options available to the tenant for depositing the rent. One such options was to pay the rent to the landlord directly, the other option was to deposit the rent with the rent controller and the last option was to deposit such rent before the court where the trial is going on. One such options was to pay the rent to the landlord directly, the other option was to deposit the rent with the rent controller and the last option was to deposit such rent before the court where the trial is going on. It is perhaps needless to say that provision of Section 7 (1) (a) was amended on and from 10th June, 2006 and by virtue of such amendment, forum for deposit of such rent with the controller has been deleted. Therefore, the defendant/tenant has now only two options i.e. either to pay the landlord directly or to the court concerned. In this instant case, the tenant had deposited the rent before the City Civil Court, where the suit was initially filed and had deposited the rent up to 2004. This goes to show his bona fide in paying the rent. It is true that technically it is an invalid deposit but not a default in real sense and it may be termed as an irregular deposit and not at all a case of non-deposit of rent. At the time of argument, learned Counsel appearing on behalf of the opposite party/tenant relied on a decision reported in case of B.P. Khemka Pvt. Ltd., -vs.- Birendra Kumar Bhowmick reported in AIR 1987 SCC 1010, in the said judgment Hon’ble Apex Court held “In this case the default was not one of non-payment of the arrears or the rent for the subsequent period. The default pertained to belated payments of rent for two months and was, therefore, a default in the technical sense than in the real sense and hence of an inconsequential nature. Having regard to the intendment of the Act and the nature of the provisions it can never be said that the defaults were of such a serious nature as to warrant the court refusing to exercise its discretion and to feel constrained to strike out the defence. Such being the case the answer to the second question has also to be in favour of the appellant. Such being the case the answer to the second question has also to be in favour of the appellant. The subordinate courts and the High Court were in error in holding that the delayed payment of rent for the months of September 1968 and March 1969 constituted such defaults as necessarily warranted the striking out of the defence under Section 17.” On the basis of settle position of law which is again relied on by a Co-ordinate Bench of this Court in connection with Ashok Kumar Bhagnani v. Mansur Ahmed & Anr. reported in (2017) SCC Online Cal 13283. Since the law is well-settled this Court has little to do. Only thing that can be done that the trial court should be directed to calculate the arrear rent along with statutory interest by exercising mathematical precision because it has been contended by the learned Counsel appearing on behalf of the petitioner that the calculation made by the learned trial court in connection with Order No. 149 dated 23.02.2017 is not correct. It is submitted at the bar that the said amount of Rs.10598.50 was paid by two equal instalments by the defendant/opposite party in terms of the said order. Therefore, the trial court should calculate the arrears again and to make a fresh calculation as to how he ascertained that amount and if he finds that the amount calculated by him including error is correct then he is to proceed with the case in accordance with law and if he finds that there is an arrear in calculation in that case he shall give an opportunity to the defendant/opposite party to deposit the dues, if any, within a week from the date of calculation made by the learned trial court. 6. Accordingly, nothing survives in this revisional application and is dismissed. 7. Let a copy of this order be sent to the learned trial court forthwith for taking appropriate action in the light of observation made above. 8. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.