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2019 DIGILAW 833 (CAL)

Chitra Das v. Kashi Nath Chakraborty

2019-08-30

HIRANMAY BHATTACHARYYA

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JUDGMENT : HIRANMAY BHATTACHARYYA, J. 1. The instant application under Article 227 of the Constitution of India is directed against a judgment and/or order dated March 1, 2011 passed by the Additional District Judge, Sealdah in Civil Revision case No. 01 of 2009 affirming the order No. 34 dated August 29, 2008 passed by the Learned Civil Judge (Junior Division), Additional Court, Sealdah in Ejectment Suit No. 400 of 2004. 2. The petitioners herein are the defendants in a suit for eviction filed under Section 6(1) of the West Bengal Premises Tenancy Act, 1997 inter alia on the grounds of default, reasonable requirement and for causing damage to the suit property. 3. In the Plaint, the plaintiff/Opposite Party herein has alleged that the defendant is a habitual defaulter in payment of rent since Falgun 1405 B.S. The suit was filed against the predecessor-in-interest of the petitioners herein. Upon the death of the original defendant, the petitioners herein were substituted in place and stead of the original deceased defendant. 4. On an application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 (herein after referred to as the "said Act"), the learned Trial Judge by an order being No. 25 dated May 31, 2007 directed the defendant to deposit a sum of Rs. 5,538/- on account of arrears of rent with interest within a period of 30 days from the date of the said order. 5. After the demise of the original defendant the substituted defendants/petitioners herein fell in great trouble and were unable to maintain the daily family expenses. Since, the substituted defendants could not make arrangements for depositing the amount of arrear rents in terms of the aforesaid order dated May 31, 2007, the substituted defendants/petitioners herein filed an application under Section 151 of the Code of Civil Procedure on July 13, 2007 praying for granting easy installments to the substituted defendants for depositing the arrears of rent. The said application under Section 151 of the Code of Civil Procedure was rejected by the learned Trial judge by an order being No. 27 dated September 10, 2007. 6. The said application under Section 151 of the Code of Civil Procedure was rejected by the learned Trial judge by an order being No. 27 dated September 10, 2007. 6. The plaintiff/Opposite Party herein filed an application under Section 7(3) of the said Act praying for striking out the defence of the petitioners herein against delivery of possession alleging that the substituted defendants/petitioners herein have failed and neglected to pay the arrears of rent as determined by the learned Trial Judge. 7. Thereafter, the substituted defendants/petitioners herein deposited a sum of Rs. 5,538/- before the learned Trial Judge on August 16, 2008. After depositing the said amount on account of arrears of rent, the substituted defendants filed an application under Section 151 read with Section 148 of the Code of Civil Procedure praying for acceptance of the deposit of arrears of rent made by the substituted defendants on August 16, 2008. It was specifically contended in the said application that on account of the death of the original defendant, who is the husband of the substituted defendant No. 1, the petitioners herein could not arrange the funds for payment of arrears of rent within the time specified in the said order. The ground of poverty was specifically pleaded in the said application. It was further stated therein that the petitioners collected the arrears of rent from the relatives as well as by selling ornaments. 8. On August 29, 2008, the learned Trial Judge took up the hearing of the application under Section 151 read with Section 148 of the Code and by an order being No. 34 dated August 29, 2008 rejected the said application upon holding that the deposit of arrear rent of Rs. 5,538/- made by the substituted defendants on August 16, 2008 cannot be regarded as a valid deposit. Thereafter, the application under Section 7(3) of the said Act was taken up for hearing and was allowed by the later part of the said order thereby striking out the defence of the defendants/petitioners herein against delivery of possession. 9. The petitioners herein have challenged the aforesaid order dated August 29, 2008 before the learned Additional District Judge, Sealdah by filing an application under Section 115-A of the Code of Civil Procedure. 10. 9. The petitioners herein have challenged the aforesaid order dated August 29, 2008 before the learned Additional District Judge, Sealdah by filing an application under Section 115-A of the Code of Civil Procedure. 10. The learned Additional District Judge by an order dated March 1, 2011 dismissed the said Revisional Application on contest on merit thereby affirming the order being No. 34 dated August 29, 2008 passed by the learned Trial Judge. Both the aforesaid orders passed by the learned Judges of the Courts below have been challenged by the petitioners herein in the instant application under Article 227 of the Constitution of India. 11. Mr. Ghose, the learned Advocate appearing on behalf of the petitioners submits that the learned Judges of both the Courts below failed to exercise their jurisdiction vested on them by not accepting the deposit made by the petitioners herein. He further submits that due to poverty, the petitioners could not make the payment on account of arrears of rent within the time specified in the order dated August 29, 2008. He thereafter submits that the court is not powerless to extend the time for deposit of the arrears of rent even after an adjudication is made under Section 7(2) of the said Act. According to him, the court can exercise its inherent power in unforeseen circumstances to accept the deposit made by a defendant beyond the stipulated time limit. He submits that since the petitioner has already deposited the arrears of rent, though belatedly, the learned Judges of the courts below acted illegally and with material irregularity by refusing to accept the deposit made by the tenant and by striking out the defence of the petitioners herein against delivery of possession. 12. I have heard the submission made by the learned Advocate appearing for petitioner and have considered the materials on record. No one appeared to oppose the instant application inspite of notice. 13. Before dealing with the submissions advanced by the learned Advocate for the petitioner, it will be profitable to quote the provisions of sub-Sections (2) and (3) of Section 7of the West Bengal Premises Tenancy Act, which runs thus: "7. When a tenant can get the benefit of protection against eviction. (1) . 13. Before dealing with the submissions advanced by the learned Advocate for the petitioner, it will be profitable to quote the provisions of sub-Sections (2) and (3) of Section 7of the West Bengal Premises Tenancy Act, which runs thus: "7. When a tenant can get the benefit of protection against eviction. (1) . (2) If in any [suit] referred to in sub-section (1 ), there is any dispute as to the amount of the rent payable by the tenant, the tenant shall, within the time specified in that subsection, deposit with [the Civil Judge] the amount admitted by him to be due from him together with an application for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. On receipt of the application, [the Civil Judge] shall, having regard to the rate at which rent was last paid and the period for which default may have been made by the tenant, make, as soon as possible within a period not exceeding one year, an order specifying the amount, if any, due from the tenant and, thereupon, the tenant shall, within one month of the date of such order, pay to the landlord the amount so specified in the order: Provided that having regard to the circumstances of the case an extension of time may be granted by [the Civil Judge] only once and the period of such extension shall not exceed two months. (3) If the tenant fails to deposit or pay any amount referred to in sub-section (1) or subsection (2) within the time specified therein or within such extended time as may be granted, [the Civil Judge] shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the 22[suit]. (4) " 14. On a bare reading of the provisions laid down under Sub-Section 2 of Section 7 of the said Act, it is evident that on receipt of an application under Section 7(2) of the said Act, the Civil Judge shall having regard to the rate at which rent was last paid and the period for which default may have been made by the tenant make an order specifying the amount, if any, due from the tenant. The tenant shall within one month of the date of such order pay to the landlord, the amount so specified in the order. Proviso to sub-Section (2) of the Section 7 of the said Act lays down that in an appropriate case an extension of time may be granted by the Civil Judge only once and period of such extension shall not exceed two months. Thus, the proviso to sub-Section (2) of Section 7 of the said Act curbs the power of the court to grant an extension of time for an unlimited period. The said extension can be granted only once and the period of such extension shall not exceed two months. The Court in exercise of its discretion upon being satisfied that an extension of time can be granted can extend the time for payment of arrears of rent upto a maximum period of two moths. 15. In the instant case, the learned Trial Judge passed an order on May 31, 2007 disposing of an application under Section 7(2) of the said Act specifying the amount due from the tenant which is Rs. 5,538/-. Though the petitioners herein took out an application under Section 151 of the Code of Civil Procedure on July 13, 2007 praying for allowing easy installments to the petitioner but the said application stood dismissed by an order dated September 10, 2007. The said application was filed within a period of two months from the date of the order disposing of the application under Section 7(2) of the said Act but the petitioners herein have not challenged the said order dated September 10, 2007 and have thus, accepted the same. Thus, the orders dated September 10, 2007 already attained its finality. 16. The petitioner herein deposited the amount after the application under section 7(3) of the said Act was filed by the plaintiff/ Opposite Party herein. The deposit made by the petitioners on August 16, 2008 was after a lapse of more than 14 months from the date of the order disposing of the application under Section 7(2) of the said Act. The petitioner herein deposited the amount after the application under section 7(3) of the said Act was filed by the plaintiff/ Opposite Party herein. The deposit made by the petitioners on August 16, 2008 was after a lapse of more than 14 months from the date of the order disposing of the application under Section 7(2) of the said Act. SubSection (3) of Section 7 of the said Act provides that in case the tenant fails to deposit or pay any amount referred to in sub-Section (1) or sub-Section (2) within the time specified therein or within such extended time as may be granted, the Civil Judge can order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit. 17. The learned Trial Judge in the order dated May 31, 2007 specified the time limit within which the arrears of rent is to be deposited. Though, the statute empowers the Court to grant extension of time for a maximum period of two months, in the instant case, though an application was filed praying for installments within a period of two months from the date of such order but the same upon being rejected was not carried any further. Thus, the petitioner's right to get extension of time for depositing arrears of rent stood crystallized by the said order. 18. The court can condone the delay only when the statute confers such a power on the court and not otherwise. The statute specifically provides the consequences for non-compliance of the order passed by a court of law. Since, the proviso to Section 7(2) of the said Act limits the power of the court to grant an extension of time beyond the period of two months from the date of the order passed under Section 7(2) of the said Act, the court cannot extend the time limit for depositing the amounts specified in the order passed under Section 7(2) of the Act beyond that time. Neither can the Court accept a deposit made beyond the stipulated period as that would have the same effect of extending the time limit for making such payment. 19. Neither can the Court accept a deposit made beyond the stipulated period as that would have the same effect of extending the time limit for making such payment. 19. The Division Bench of this court in the case of Subrata Mukherjee vs. Bishakha Das, (2012) 3 CalHN 423 (Cal) held that the time limit fixed for payment to the landlord after adjudication of the dispute with regard to the rate of rent within the extended time limit as mentioned in proviso to sub-Section (2) is inflexible and thus cannot be extended by the court under any circumstances. The Division Bench also held that the provisions of Section 5 of the Limitation Act will not be applicable. 20. The powers under Section 151 of the Code of Civil Procedure are the inherent powers of the Court. Section 151 of the Code provides that the inherent powers of the Court can be exercised to make orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. It is equally true that Section 151 of the Code does not authorize the Court to pass any order which may run counter to the express provisions of a statute. 21. Since, the statute creates an embargo upon the Court to grant an extension of time for a period beyond two months, the inherent powers of the Court under Section 151 of the Code cannot be applied in the instant case for acceptance of the belated payment of arrears of rent, as that would amount to nullify and/or stultify the express provision of the statute. 22. Thus, I am unable to accept the submission of Mr. Ghose that the Court can exercise its inherent powers in unforeseen circumstances and accept payment on account of arrears of rent beyond the time time stipulated in Section 7(2) of the Act. 23. Section 148 of the Code of Civil Procedure provides for enlargement of time. Section 148 of the Code lays down that where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period not exceeding thirty days in total, even though the period originally fixed or granted may have expired. 24. 24. On a bare reading of the said provision it appears that if the Court fixes a time for doing any act prescribed or allowed by the Code of Civil Procedure, the Court in its discretion may enlarge such period. In the instant case we are not concerned with an act prescribed or allowed by the Court but with the provisions in a statute which requires certain act to be done in a particular manner. 25. The manner in which the extension of time is to be granted and the period of extension has been specified in Section 7 of the West Bengal Premises Tenancy Act, 1997. The Court can only exercise its discretion as to whether an extension of time can be granted for a period which can extend up to two months. When a statutory provision is made with regard to the time within which a certain act must be done and the consequences for non-compliance of the same has also been specified therein, the Court has no power to extend such time by applying the provisions of Section 148 of the Code. 26. The scope of the power of revision of the High court under Section 115 of the Code of civil Procedure, as amended by the Code of Civil Procedure (Amendment) Act, 1999 came up for consideration before this Hon'ble Court in the case of Mrityunjoy Sen Vs.- Sikha Sen, (2003) 1 CalLJ 263 . 27. In Mrityunjoy Sen (supra) it was held that revisional application will lie against such final or interlocutory order, if it had been made in favour of a party applying for revision would have finally disposed of the suit or the proceeding. 28. Sub-Section (1) of Section 115A provides that a District Court may exercise all or any of the powers which may be exercised by the High Court under Section 115. Sub-section (2) provides that where any proceeding by way of revision is commenced before a District Court in pursuance of the provision of Sub-Section (1), the provisions of Section 115 shall, so far as may be apply to such proceeding and reference in the said section to the High Court shall be construed as reference to the District Court. 29. Sub-section (2) provides that where any proceeding by way of revision is commenced before a District Court in pursuance of the provision of Sub-Section (1), the provisions of Section 115 shall, so far as may be apply to such proceeding and reference in the said section to the High Court shall be construed as reference to the District Court. 29. Thus upon a conjoint reading of the provisions of Section 115 and Section 115A of the Code of Civil Procedure it appears that though the District Court can exercise the revisional powers, but the scope of such power is very much limited. Such revisional power can be exercised by the District Court only in case the order sought to be challenged in revision, had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings. 30. The petitioner challenged the order dated August 29, 2008 passed by the learned Trial Judge by filing an application under Section 115A of the Code of Civil Procedure before the learned Additional District Judge, Sealdah. By virtue of the said order the prayer for acceptance of belated deposit of arrears of rent was rejected and consequently the application under Section 7(3) filed by the plaintiff/opposite party was allowed. 31. From the nature of the order dated August 29, 2008 it cannot be said that, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. 32. Thus, the application filed by the petitioner under Section 115-A of the Code was not maintainable and accordingly the findings of the learned Additional District Judge was wholly without jurisdiction. The learned Judge of the Court below acted illegally and with material irregularity by holding that the revision was maintainable in law. 33. However, the instant application under Article 227 of the Constitution of India is maintainable as the order being no. 34 dated August 29, 2008 has also been challenged by the petitioner herein. 34. The learned Judge of the Court below acted illegally and with material irregularity by holding that the revision was maintainable in law. 33. However, the instant application under Article 227 of the Constitution of India is maintainable as the order being no. 34 dated August 29, 2008 has also been challenged by the petitioner herein. 34. Since admittedly, the substituted defendants/ petitioners herein did not deposit the amounts specified in the order dated May 31, 2007 within the time limit mentioned in the said order and also because of the fact that the belated deposit made by the petitioners herein cannot be accepted for the reasons as aforesaid, the defence of the defendants/petitioners herein is liable to be struck off under subSection (3) of Section 7 of the said Act. The learned Trial Judge was justified in striking out the defence of the petitioners against delivery of possession. 35. Thus, the order dated March 1, 2011 passed by the Additional District Judge, Sealdah in Civil Revision case No. 01 of 2009 is set aside. The order being No. 34 dated August 29, 2008 passed by the Civil Judge (Junior Division), Additional Court Sealdah in Ejectment Suit No. 400 of 2004 is not interfered with and the same is hereby affirmed. 36. C.O. No. 2826 of 2011is disposed of accordingly without however any order as to costs. 37. Urgent Photostat certified copy of this order if applied for, be given to the parties on priority basis upon compliance of all formalities.