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2018 DIGILAW 62 (CAL)

Alok Mukherjee v. Mahim Ranjan Sarkar

2018-01-09

HARISH TANDON

body2018
JUDGMENT : 1. This revisional application is filed challenging order dated January 30, 2017 and November 17, 2017 passed by learned Civil Judge (Sr. Div), 10th Court, Alipore in Title Suit No. 129 of 2011 by which an application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 is disposed of and an application under Section 7 (3) of the said Act is allowed. 2. The plaintiff/opposite party filed a suit for eviction of a monthly tenant, inter alia, on the ground of nuisance and annoyance and waste and damages. 3. It is alleged in the plaint that the defendant/petitioner was a monthly tenant in respect of entire first premise of 53, Ballygunge Gardens, P. S. Gariahat, Kolkata-700019 at a rent of Rs. 6,325/- per month according to English calendar. It is further averred therein that the defendant by issuing letter promised to surrender the said tenancy to the plaintiff/opposite party and despite such undertaking to vacate the suit premises, the petitioner failed and neglected to do so and, therefore, the notice to quit was issued upon him to hand over the vacant and khas possession of the suit premises. It is further stated in the plaint that the petitioner is guilty of causing nuisance and annoyance to the plaintiff/opposite party as well as the neighbours and have also caused serious damages to the suit property. 4. Initially, the petitioner took out an application under Order 7 Rule 11 of the Code of Civil Procedure seeking rejection of the plaint on the premise that there is neither contractual nor jural relationship of landlord and tenant between the parties. The Court rejected the said application and this Court is informed that the Trial Court observed that the issue relating to relationship of landlord and tenant would be decided in the suit. It further appears that the petitioner’s raised dispute in an application under Section 7(2) of the Act relating to the period of default and the relationship of landlord and tenant and invited the attention of the Court to determine the same. 5. By order dated January 30, 2017, the Court disposed of an application under Section 7(2) of the Act holding that the petitioner is defaulter for 79 months ranging between July 2010 to January 2017 and directed the petitioner to pay the same along with the statutory interest. 5. By order dated January 30, 2017, the Court disposed of an application under Section 7(2) of the Act holding that the petitioner is defaulter for 79 months ranging between July 2010 to January 2017 and directed the petitioner to pay the same along with the statutory interest. Admittedly, the petitioner did not challenge the said order immediately and deposited the rent as directed by the Trial Court. However, the plaintiff subsequently found that the deposit made by the petitioner is not strictly in conformity with the said order and took out an application under Section 7(3) of the said Act for striking out the defence. The petitioner says that the learned advocate representing him misconstrued the provisions contained in proviso to Section 7 (2) of the Act and advised that the said amount is required to be deposited within 90 days. 6. It appears from the order dated November 30, 2017 that the Court did not specify the time within which the arrears rent is required to be deposited under the aforesaid provision. The operative portion of the order indicates that such deposit is to be made within the statutory period. 7. The enabling provision mandates the deposit of the rent within one month of the date of the order whereas the proviso appended thereto empowers the Court to extend the time only once, which should not exceed two months. It has been misconstrued by the advocate appearing for the petitioner that the total period for deposit would be 90 days as the power to extend the time is discretionary one and cannot be treated as a casual exercise by the Court. However, this Court cannot overlook that because of the misconception of the law by the advocate, a litigant should not suffer. The fact remains that the deposit has been made within outer cap enshrined under Section 7 (2) of the Act and, therefore, this Court makes it clear that such deposit would be treated to have been validly made under the order of extension passed by the Court. Apart from the same, this Court finds that the issue relating to relationship of landlord and tenant has been kept open to be decided by the Court after full fledged trial and, therefore, striking out the defence on technical default would have serious impact on the defendant’s right to agitate such issue. 8. Apart from the same, this Court finds that the issue relating to relationship of landlord and tenant has been kept open to be decided by the Court after full fledged trial and, therefore, striking out the defence on technical default would have serious impact on the defendant’s right to agitate such issue. 8. This Court, therefore, set aside the order dated 17th November 2017 by which an application under Section 7 (3) of the said Act was allowed. 9. This Court, however, makes it clear that the Trial Court shall frame a specific issue, if not already framed, relating to relationship of landlord and tenant and shall decide the same along with the other issues. 10. Considering the nature of suit, this Court, however, requests the learned Judge in the Trial Court to dispose of the suit as expeditiously as possible without granting unnecessary adjournment to either of the parties and preferably within six months from the date of communication of this order. 11. The time limit indicated hereinabove is peremptory and mandatory. 12. With these observations, the revisional application stands disposed of. 13. There shall be no order as to costs.