Research › Search › Judgment

Calcutta High Court · body

2017 DIGILAW 973 (CAL)

P. Marica v. Bhola Nath Kundu

2017-12-13

SABYASACHI BHATTACHARYYA, SANJIB BANERJEE

body2017
JUDGMENT : This appeal is at the instance of a tenant against a judgment of affirmance. The trial court decreed an eviction suit against the appellant on the ground of default and the first appellate court affirmed the same. Both the Courts below held that since the appellant obtained the protection of Section 17 (4) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as “the 1956 Act”) in a previous eviction suit between the same parties, the appellant was not entitled to similar protection under Section 7 (4) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as “the 1997 Act”) on his second default in view of the bar stipulated in the proviso to Section 7 (4) of the 1997 Act. 2. The appellant urges that the default, if any, committed by the appellant in the previous suit was at best of a technical nature, being one not of non-payment but of delayed payment of rent. It is further argued that since the appellant had not sought any protection under Section 17 (4) of the 1956 Act but the court had afforded the appellant such protection of its own in the previous suit, it cannot be said that the appellant had availed of such protection. 3. It appears from the materials placed before this Court that in a previous eviction suit between the parties, numbered as Ejectment Suit No. 1838 of 2000, it was held as follows: “… It transpires on perusal of the record that the defendant has deposited all the rents regularly up to date, only some of the said deposits are beyond time. It is crystal clear from the record that the default in this case is not one of non-payment of arrears of rent but of delayed payments. Therefore the default is in the technical sense and not in the real sense. In the circumstances, I am inclined to hold that as the defendant has already deposited all the current as well as arrear rents up to date, this court, in its discretion, can condone the said delay for ends of substantive justice ( AIR 1987 S.C 1010 ). Accordingly, the petitioner filed by the defendant is allowed on contest and the delay in depositing certain rents by the defendant is condoned for ends of justice. Accordingly, the petitioner filed by the defendant is allowed on contest and the delay in depositing certain rents by the defendant is condoned for ends of justice. As a result, the defendant is entitled to get protection under Section 17 (4) of the W.B.P.T. Act. 4. Thus this issue is disposed of accordingly. …” 5. As such, it is evident that the benefit afforded by Section 17 (4) of the 1956 Act was already availed of by the appellant in the previous suit. 6. For the present purpose, it will be worthwhile to look into the provisions of Section 7 (4) of the 1997 Act and its proviso: “7. When a tenant can get the benefit of protection against eviction. …… “(4) If the tenant makes deposit or payment as required by subsection (1) or sub-section (2), no order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant, shall be made by the Civil Judge, but he may allow such cost as he may deem fit to the landlord: “Provided that the tenant shall not be entitled to any relief under this subsection if, having obtained such relief once in respect of the premises, he again makes default in payment of rent for four months within a period of twelve months or for three successive rental periods where rent is not payable monthly.” 7. Section 17 (4) of the 1956 Act and its proviso, on the other hand, read as follows: “17. When a tenant can get the benefit of protection against eviction …… “(4) If a tenant makes deposit or payment as required by subsection (1), sub-section (2), or sub-section (2A) no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as it may deem fit to the landlord : “Provided that a tenant shall not be entitled to any relief under this subsection if, having obtained such relief once in respect of the premises, he has again made default in the payment of rent for four months within a period of twelve months.” 8. Since the 1956 Act was the predecessor statute of the 1997 Act and the protection afforded to the tenant-defendant under Section 17 (4) and Section 7 (4) of such Acts respectively are almost exactly the same, the relief given under Section 17 (4) of the 1956 Act will necessarily satisfy the phrase “such relief” mentioned in the proviso to Section 7 (4) of the 1997 Act. 9. Since such relief was evidently obtained by the appellant in the previous suit, the appellant cannot be afforded the protection of Section 7 (4) of the 1997 Act again, in view of the bar stipulated in the proviso to the said section. 10. As to the other argument of the appellant, that the plaintiff/respondent did not plead the factum of the tenant-appellant having previously obtained relief under Section 17 (4) of the 1956 Act, the plaintiff-landlord has only to plead the present default to get a decree under Section 6 (1) (b) of the 1997 Act. Section 6 of the 1997 Act does not contemplate any pleading, let alone statutory pleading, as to previous default. On the contrary, since Section 7 (4) of the 1997 Act [just as Section 17(4) of the 1956 Act] is by way of an additional layer of protection to the tenant, it is for the tenant-defendant to satisfy the court that the tenant had not availed of such relief in any previous suit, to take the tenant out of the rigour of the proviso to Section 7 (4). 11. The appellant did nothing of that sort. Rather, the appellant admitted in his written statement of the present suit about the previous suit. Both courts categorically found that the appellant, having already availed of such relief once in a previous suit, was barred by the proviso to Section 7 (4) of the 1997 Act from being entitled to the protection of the said section. Hence the courts below were justified in decreeing the suit against the appellant on the ground of default without affording the appellant the benefit of Section 7 (4) of the 1997 Act. 12. As such, S.A.T. 444 of 2014 does not give rise to any question of law, let alone substantial, and the same is dismissed under Order XLI Rule 11 of the Code of Civil Procedure. As a consequence, CAN 4117 of 2016 is also disposed of. 13. 12. As such, S.A.T. 444 of 2014 does not give rise to any question of law, let alone substantial, and the same is dismissed under Order XLI Rule 11 of the Code of Civil Procedure. As a consequence, CAN 4117 of 2016 is also disposed of. 13. There will be no order as to costs. 14. After the judgment is pronounced in court, it is submitted on behalf of the appellant that the appellant should be afforded a time of three months to vacate the premises. 15. Let the matter appear as ‘To be Mentioned’ on December 18, 2017. If the appellant files an unequivocal affidavit of undertaking to vacate the decretal premises within three months from now, the same may be accepted, subject to whatever the respondent may have to say.