Research › Search › Judgment

Calcutta High Court · body

2018 DIGILAW 799 (CAL)

Biswanath Bhattacharya v. Anup Kumar Saha

2018-11-15

SABYASACHI BHATTACHARYYA

body2018
JUDGMENT : SABYASACHI BHATTACHARYYA, J. 1. The first defendant in an eviction suit under the West Bengal Premises Tenancy Act, 1997, has challenged an order whereby the said defendant’s application under Section 151 of the Code of Civil Procedure, for acceptance of belated deposits under Section 7(1) of the said Act of 1997, was dismissed on contest and the next date was fixed for hearing of an application filed by the plaintiff/opposite party no. 1 under Section 7(3) of the said Act of 1997. 2. Learned counsel for the petitioner argues that the trial court could not fix a date for hearing of the application under Section 7(3) of the said Act of 1997, while keeping the applications under Section 7(1), Section 7(2) of the said Act of 1997 and under Section 5 of the Limitation Act pending. 3. It is further submitted that the trial court acted without jurisdiction in dismissing the application for acceptance of belated deposits on condonation of delay on a hypertechnical approach. 4. Learned counsel for the plaintiff/opposite party no. 1, who is the main contesting opposite party, argues that since the defendants failed to deposit the admitted amount of arrear of rents, which is a pre-condition for filing both applications under Section 7(1) and Section 7(2) of the said Act of 1997, the trial court was correct in dismissing the application of the defendant no. 1 for acceptance of belated deposits. 5. It is further argued that, in view of availability of alternative provisions of law governing the field, the application filed by the petitioner under Section 151 of the Code was not maintainable at all, as is the well-settled position of law. 6. In view of such circumstances, learned counsel for the opposite party no. 1 prays for dismissal of the revisional application. 7. Service upon the other opposite parties is dispensed with. 8. Upon a consideration of the materials on record and the submission of parties, it is seen that the trial court, while passing the impugned order, proceeded on a palpably erroneous legal premise that the provisions of Section 7(1) of the said Act of 1997 are mandatory and as such, refused to look into the grounds for condonation of delay at all, before dismissing the application. 9. 9. It is well-settled that the inherent power of court cannot be exercised where there is alternative provision of law, as rightly submitted by the plaintiff/opposite party no. 1. 10. However, it is equally settled that, where there is a specific provision empowering the court to exercise a particular jurisdiction, mere incorrect caption as to the provision of law does not invalidate the power of the Court to pass such an order. 11. It is evident that an application under Section 7(2) of the said Act of 1997 has been preferred by the defendants, which has still been kept pending. Whatever may be the worth of the said application on merits, the trial court committed the first jurisdictional error in fixing the application under Section 7(3) of the said Act of 1997 prior to deciding the application under Section 7(2) of the said Act of 1997, as well as the application under Section 5 of the Limitation Act accompanying the same. Although Section 7(1) of the Act of 1997 does not envisage any application, yet, by way of the application under Section 151 of the Code, the defendant no. 1 in effect sought for a condonation of delay in depositing the admitted arrears, which is the entire scope of Section 7(1) of the said Act of 1997. 12. As is well-settled by several decisions of this Court, the provisions of Section 5 of the Limitation Act apply squarely both to Sections 7(1) and 7(2) of the said Act of 1997. As such, the power of Court sought to be invoked under the application, wrongly captioned as under Section 151 of the Code, was in effect to be found embedded in Section 5 of the Limitation Act. 13. Since the court below was duty-bound to consider the application for condonation of such delay on merits, the trial court committed the second jurisdictional error in overlooking the grounds of the said application totally, on a third error that the provisions of Section 7(1) of the said Act of 1997 are mandatory. 14. It is now settled by judicial decisions that the provisions of Section 7(1) are not mandatory but directory, particularly since a window of condonation is available under Section 5 of the Limitation Act regarding the deposits made under Section 7 (1) of the 1997 Act. 15. 14. It is now settled by judicial decisions that the provisions of Section 7(1) are not mandatory but directory, particularly since a window of condonation is available under Section 5 of the Limitation Act regarding the deposits made under Section 7 (1) of the 1997 Act. 15. In the present case, a further deterrent to the trial court in passing the impugned order was the pendency of the application under Section 7(2) of the said Act of 1997, coupled with an application for condonation of delay in filing the same. 16. The moment an application is filed under Section 7(2) of the said Act of 1997, the power of the court under such provision subsumes the provisions of Section 7(1) of the said Act of 1997, in so far as the duty cast upon the defendant/tenant to deposit admitted arrears, as contemplated under Section 7(1), is merged in the final decision passed under Section 7(2) of the said Act of 1997, which has to be passed by the court upon taken into consideration the quantum of arrears left due by the defendants, including those pertaining to admitted deposits, as contemplated in Section 7(1) of the said Act of 1997 and accompanying an application even under Section 7(2) of the said Act of 1997. 17. In such view of the matter, the trial court committed a patent jurisdictional error in rejecting the application for acceptance of delayed deposits. 18. Accordingly, C.O. No. 3698 of 2018 is allowed, thereby setting the impugned order and directing the trial court to dispose of the applications under Section 7(1) and 7(2) of the said Act of 1997, along with the applications under Section 5 of the Limitation Act and Section 151 of the Code of Civil Procedure afresh, if possible simultaneously, and only thereafter to proceed with the hearing of the application under Section 7(3) of the said Act of 1997. 19. It is made clear that the merits of the said applications, which have been directed to be heard by the trial court, have not been gone into and the court below will proceed in accordance with law to independently adjudicate such applications, as expeditiously as the business of the court permits. 20. There will, however, be no order as to costs. 21. 20. There will, however, be no order as to costs. 21. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.