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2019 DIGILAW 43 (CAL)

Malati Malik v. Swapan Kumar Dig

2019-01-10

SABYASACHI BHATTACHARYYA

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JUDGMENT : SABYASACHI BHATTACHARYYA, J. 1. The aforesaid two revisional applications arise from consequential orders and as such are taken up together for hearing. 2. C.O. No. 921 of 2018 is preferred against two orders. 3. By the first, the application of the petitioners, being defendants in an eviction suit, under Section 7 (2) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as "the 1997 Act") was dismissed on the ground of non- deposit of admitted arrears as stipulated in the said section. Consequentially the defence of the petitioners was also struck out under Section 7 (3) of the 1997 Act. 4. By the second impugned order, the petitioners' second application under Section 7 (2) of the 1997 Act, along with an application under Section 5 of the Limitation Act for condonation of delay in filing the second application, were dismissed. 5. C.O. No. 1263 of 2018 is filed against an order fixing the connected eviction suit for ex parte hearing. 6. Learned counsel for the petitioners argues that the provision of depositing admitted arrears along with an application under Section 7 (2) of the 1997 Act is directory and that there is no specific sanction provided in law for non-compliance of such provision. It is argued that the non-deposit of admitted arrears would be considered by the court while deciding the amount of rent due at the time of finally deciding the application under Section 7 (2) and the amount directed to be paid by the defendant by such final order would include the admitted arrears. 7. Learned counsel for the petitioners next argues that Section 7 (2) stipulates that no deposit of admitted arrears would be accepted unless accompanied by an application under the said section, and not the reverse, that is, the statute does not provide that such an application would not be accepted unless the same is accompanied by admitted arrears. As such, it is argued, an application under Section 7 (2) of the 1997 Act cannot be dismissed merely on the ground of non-deposit of admitted arrears, but has to be adjudicated on merits. 8. As such, it is argued, an application under Section 7 (2) of the 1997 Act cannot be dismissed merely on the ground of non-deposit of admitted arrears, but has to be adjudicated on merits. 8. The petitioners argue that the second application under Section 7 (2) was maintainable since the first was not dismissed on merits, and it was the incumbent duty of the court to decide the application under Section 5 of the Limitation Act, for condonation of delay in deposit of such admitted arrears, before mechanically rejecting the second application. 9. In this context, the petitioners' counsel cites a division bench judgment of this court, reported at [Subrata Mukherjee v- Bisakha Das, (2012) 3 CalHN 423] wherein it was held inter alia that Section 5 of the Limitation Act was applicable to deposits contemplated under Sections 7 (1) and (2) of the 1997 Act, including deposits of admitted arrears. 10. It is thus argued that the first order, mechanically dismissing the application under Section 7 (2) of the 1997 Act, was not passed on merits since mere non-deposit of admitted arrears could not be a ground at all for dismissal of such an application. The trial court ought to have decided the application itself on merits and considered the non-deposited admitted arrears as a part of the arrears due under Section 7 (2) of the 1997 Act. The consequential striking out of defence under Section 7 (3) was, as such, also unlawful and without jurisdiction. 11. Learned counsel for the petitioners further submits that the trial court refused to exercise jurisdiction vested in it by law in not deciding the second application under Section 7 (2) on merits upon adjudicating the application for condonation of delay in depositing the admitted arrears. 12. The petitioners cite a judgment of a co-ordinate bench of this court, reported at [Ashok Kumar Bhagnani v- Mansur Ahmed & Anr., (2015) 1 CalLJ 333] for the proposition that the court had discretion to grant extension of time for deposit of amounts contemplated under Sections 7 (1) and (2) of the 1997 Act, particularly if such prayer is made for the first time, before striking out the defence of the defendant under Section 7 (3) of the Act. 13. 13. An unreported judgment is then cited by the petitioners, passed by another learned Single Judge of this Court on July 24, 2017 in C.O. No. 1001 of 2015 [Land & Bricks & Entertainments Ltd. v- Sri Samir Kumar Mallick & Anr.], wherein it was held inter alia that in proceedings under Section 7 (2) of the Act of 1997 the court adjudicates on the dispute and arrives at a finding as to the quantum that is outstanding from the tenant to the landlord. Upon such a finding as to the quantum of default being rendered, there is a statutory time which is prescribed for the payment thereof. Since such adjudication is completed in course of proceedings under Section 7 (2) of the said Act, the application for an adjudication of the disputes is not incompetent without the admitted amount in default accompanying the same. 14. The petitioners next cite another unreported co-ordinate bench judgment rendered on August 16, 2017 in C.O. No. 2644 of 2017 [M/s Smart Enterprises v- Shree Ram Trust]. It was laid down therein that the mandate of Section 7 (2) of the 1997 Act was that the Court had to specify an amount that was due for the liability of the defendant-tenant to be crystallised thereupon and for the time to start running, in accordance with the third part of Section 7 (2) read with the proviso thereto, thereupon. Till such time that an amount was adjudged to be due and owing from the defendant to the plaintiff in terms of Section 7 (2) of the Act when an application under such provision was made, it was held, there was no question of the defence being struck off or the tenant not having any opportunity to make good the default. 15. Learned counsel for the plaintiffs/opposite party nos. 1 to 3, on the other hand, argues that the stipulation in Section 7 (2) of the 1997 Act to deposit admitted arrears along with an application under the said provision is a mandatory pre- condition of filing such an application and in the absence of such deposit the application has to be dismissed. 16. In support of such contention, learned counsel cites two judgments of the same learned Single Judge of this court, reported respectively at [Kalithody Sahaderan Thirumulpad v- Rahul Moitra, (2017) 2 CalHN 331] and [Mr. 16. In support of such contention, learned counsel cites two judgments of the same learned Single Judge of this court, reported respectively at [Kalithody Sahaderan Thirumulpad v- Rahul Moitra, (2017) 2 CalHN 331] and [Mr. Anwar Hussain v- Mohammed Amin & Ors., (2018) 1 CalLJ 162 ]. 17. In the first of the said reported judgments, Ashok Kumar Bhagnani (supra) was distinguished and it was held, following Bina Devi Binani v- Ramesh Kumar Gupta, (2015) 3 CalLT 384 ] , another decision of the same Single Bench, that the provisions of Section 7 (3) of the 1997 Act were mandatory. It was further held that an application under Section 7 (2) of the 1997 Act was to be rejected, if not accompanied by the deposit of admitted arrears. 18. In the second reported judgment, Land & Bricks (supra) and M/s Smart Enterprises (supra) were not relied on and the view in Kalithody Sahaderan Thirumulpad (supra) was reiterated. 19. Learned counsel for the plaintiffs/opposite party nos. 1 to 3 submits that the petitioners had challenged only the order striking out their defence and not the rejection of the first application under Section 7 (2), which was admitted in the second such application. Hence, it is argued, the dismissal of the application under Section 7 (2) had attained finality and the striking out of defence of the petitioners against eviction was only a logical consequence. 20. It was lastly argued that this court ought not to exercise its jurisdiction under Article 227 of the Constitution of India, since the impugned orders were passed in consonance with law and in proper exercise of jurisdiction by the trial court. 21. In reply, learned counsel for the petitioners cites a judgment reported at [Shangrila Food Products Ltd. & Anr. v- Life Insurance Corporation of India & Anr, (1996) 5 SCC 54 ] for the proposition that that the High Court could pass an order in order to balance the equities between the contestants especially when it otherwise had power of superintendence under Article 227 of the Constitution in addition. v- Life Insurance Corporation of India & Anr, (1996) 5 SCC 54 ] for the proposition that that the High Court could pass an order in order to balance the equities between the contestants especially when it otherwise had power of superintendence under Article 227 of the Constitution in addition. It was also held that the High Court in exercise of its jurisdiction under Article 226 of the Constitution could take cognisance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice; and that this jurisdiction of the High Court, being extra-ordinary, was normally exercisable keeping in mind the principles of equity. 22. In the present case, a perusal of the applications under Section 7 (2) of the 1997 Act makes it clear that the defendants/petitioners admitted some arrears to be due, but did not deposit the same along with the first application under Section 7 (2) of the said Act. Accordingly the said application was dismissed on the ground of non-deposit of the admitted arrears in terms of Section 7 (1) of the 1997 Act alone, without going into the merits of such application. 23. However, after such dismissal, the petitioners filed a second application under Section 7 (2) of the 1997 Act after first depositing the admitted arrears of rent. An application was also filed for condonation of delay in filing the said second application. 24. The trial Judge dismissed the subsequent two applications on the ground of dismissal of the prior application. 25. On the face of it, Section 7 (2) envisages deposit of admitted arrears of rent independent of the similar provision in Section 7 (1). As such, the premise of the trial court on both occasions, that the defendants were guilty of non-deposit of the admitted arrears as contemplated in sub-section (1) of Section 7 of the 1997 Act, was de hors the law. 26. The cited decisions bring to fore a conflict of decisions on this score, views having been expressed by several co-ordinate benches of this court either way - holding the accompanying deposit of admitted arrears, with applications under Section 7 (1) and (2) of the 1997 Act, both mandatory and directory. 26. The cited decisions bring to fore a conflict of decisions on this score, views having been expressed by several co-ordinate benches of this court either way - holding the accompanying deposit of admitted arrears, with applications under Section 7 (1) and (2) of the 1997 Act, both mandatory and directory. One option for this court would be to arrive at an opinion on the said question and to follow either of the two conflicting views, or refer the matter for decision before a bench of larger strength. 27. Yet, such an academic exercise, which would be detrimental to the interest of the litigants herein for the delay involved, may not be necessary in the present case due to another option being available. 28. In the present case, it is to be seen whether the petitioners' second application under Section 7 (2) could be dismissed, despite prior deposit of admitted arrears, on the ground of the earlier application under the same provision having been dismissed. 29. Rejection of the earlier application under Section 7 (2) of the 1997 Act was only on the ground of maintainability due to non-deposit of admitted arrears and as such did not touch the merits of the matter. In any event, since it was categorically held by a division bench of this court in Subrata Mukherjee (supra) that the provisions of Section 5 of the Limitation Act were applicable to deposits made under Section 7 (1) and (2) of the 1997 Act, the trial court ought to have granted an opportunity to the petitioners to explain the delay in filing the application under Section 7 (2) of the 1997 Act. Hence the trial court refused to exercise jurisdiction vested in it by law in dismissing the application outright on the ground of delay. 30. The striking out of defence by the first impugned order was a consequence of the dismissal of the first application under Section 7 (2) on the ground of non-deposit of arrears of rent. Immediately upon such dismissal, the trial court proceeded in hot haste to strike out the defence of the petitioners under Section 7 (3) of the 1997 Act. Two jurisdictional errors were committed in doing so by the trial court. 31. Immediately upon such dismissal, the trial court proceeded in hot haste to strike out the defence of the petitioners under Section 7 (3) of the 1997 Act. Two jurisdictional errors were committed in doing so by the trial court. 31. First, it proceeded on the premise that the first application under Section 7 (2) was to be rejected due to non-deposit of the admitted amount contemplated in Section 7 (1) of the Act. This was a palpable jurisdictional error, since once the 9 defendants chose to opt for an adjudication of the arrears of rent under Section 7 (2) by disputing the same, the provisions of Section 7 (1) became academic and were to merge with the final adjudication under Section 7 (2). Thus, the non-deposit under Section 7 (1), for which the first application under sub-section (2) of Section 7 was dismissed, was in any event not required in law to be made. 32. Secondly, instead of adopting a hyper-technical approach having the serious effect of shutting out the defence of the tenants, the trial court ought to have permitted the defendants/tenants an opportunity to explain the delay in depositing the admitted arrears, since a division bench of this Court has already held in Subrata Mukherjee (supra) that Section 5 of the Limitation Act is applicable to deposits covered by both sub-section (1) and (2) of Section 7. Such a liberal approach has been vindicated consistently by this Court as well as the Supreme Court in several cases, if not for its own worth, for the serious effect it would have on the defence, which would be struck out in an otherwise adversarial system of adjudication. 33. Hence the first impugned order, whereby the application under Section 7 (2) was dismissed for non-deposit of admitted arrears under Section 7 (1) of the 1997 Act, and consequentially the petitioners' defence was struck off under Section 7 (3) of the said Act, cannot be sustained and has to be set aside. 34. The dismissal of the said first application, for non-deposit of admitted arrears only, was not an adjudication on merits. Hence the trial court ought to have decided the application for condonation of delay and then to go on to decide the application under Section 7 (2) on merits, if the delay was condoned. 35. 34. The dismissal of the said first application, for non-deposit of admitted arrears only, was not an adjudication on merits. Hence the trial court ought to have decided the application for condonation of delay and then to go on to decide the application under Section 7 (2) on merits, if the delay was condoned. 35. Instead of doing so, the trial court dismissed the second application also, merely since the earlier one was dismissed, also on the premise that no deposit of admitted arrears, as envisaged in sub-section (1) of Section 7, was made by the defendants, although the second application under Section 7 (2) was preceded by a deposit of the admitted arrears of rent, and accompanied by an application for condonation of delay. This exercise was de hors the statute, since the prior deposit mandated the court to take up the application for condonation of delay in making the second application under Section 7 (2) for hearing and to dispose of the same on merits, and thereafter to proceed to dispose of the application under Section 7 (2) itself on merits. 36. Therefore the trial court refused to exercise jurisdiction vested in it by law in dismissing both the applications being the second application under Section 7 (2) and the application for condonation of delay summarily without going into the merits of the same. 37. In view of sufficient explanation of the delay having been furnished by the defendants/petitioner, who are lay persons in law, and their bona fides being otherwise clear from their conduct in filing the previous application and making the deposit of admitted arrears subsequently, coupled with the latter applications, the trial court ought to have condoned the delay in filing the second application under Section 7 (2) upon construing the preceding deposits as valid deposits by condoning the delay in making the same, and to have decided the second application under Section 7 (2) on merits, assessing the amount due, along with interest. 38. In the above context, a relegation of the matter to a larger bench for resolving the apparent conflict of decision as to the directory/mandatory nature of the deposit of admitted arrears along with applications under Section 7 (2) of the 1997 Act would be entirely unnecessary and academic in the instant case. 39. 38. In the above context, a relegation of the matter to a larger bench for resolving the apparent conflict of decision as to the directory/mandatory nature of the deposit of admitted arrears along with applications under Section 7 (2) of the 1997 Act would be entirely unnecessary and academic in the instant case. 39. Hence C.O. No. 921 of 2018 and C.O. No. 1263 of 2018 are allowed on contest, thereby setting aside the orders impugned therein, condoning the delay in filing the petitioners' second application under Section 7 (2) of the West Bengal Premises Tenancy Act, 1997 and directing the trial court to decide the second application of the petitioners under Section 7 (2) of the West Bengal Premises Tenancy Act, 1997 afresh on merits and thereafter to proceed with the hearing of the suit after taking the same off the ex parte board. 40. There will be no orders as to costs. 41. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with requisite formalities.