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2019 DIGILAW 932 (CAL)

Shanu @ Sanu Begum v. Md. Aslam Khan Lodhi

2019-11-15

SABYASACHI BHATTACHARYYA

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JUDGMENT : 1. The present revisional application is at the instance of a defendant in a suit for eviction under the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as "the 1997 Act"). 2. The predecessor-in-interest of the present plaintiffs had filed the suit and subsequently, on his death, the present plaintiffs/opposite party nos. 1 to 5 were substituted in his place as plaintiffs. Initially the predecessor-in-interest of the plaintiffs had filed an application under Section 7(3) of the 1997 Act for striking out the defence of the defendants against delivery of possession. The said application, however, was dismissed by the court below. 3. It is undisputed that, vide Order no. 15 dated October 1, 2007, the trial court had disposed of an application filed by the defendants under Section 7(2) of the 1997 Act, thereby holding the defendants to be defaulters since April 19, 1998 till that date, for a total period of 114 months at the rate of Rs.60/- per month, amounting to Rs.6,840/-, together with interest of Rs. 684/-, totalling Rs.7,524/-, which the defendants were directed to deposit. The defendants were further directed to deposit current monthly rent within the 15th day of every month. 4. Subsequently, the substituted plaintiffs took out another application under Section 7(3) of the 1997 Act, comprised of a single paragraph, alleging that the defendants had failed and neglected to deposit the current rent within due time as required under the provisions of Section 7(1) of the 1997 Act and hence, the defence of the defendants against delivery of possession was liable to be struck off. The said application under Section 7(3) was filed on January 11, 2017. 5. The defendants filed a written objection, thereby controverting the allegations made in the application under Section 7(3) of the 1997 Act. In the said written objection, the defendants categorically stated that they never neglected to deposit the current rent month by month and that, till January, 2017, the defendants had deposited monthly rent vide court deposit Challan/Receipt No. 27841. However, the trial court, vide Order No. 70 dated July 19, 2017, allowed the application filed by the plaintiffs/opposite party nos. 1 to 5, thereby striking out the defence of the defendants, including the present petitioner, against delivery of possession. However, the trial court, vide Order No. 70 dated July 19, 2017, allowed the application filed by the plaintiffs/opposite party nos. 1 to 5, thereby striking out the defence of the defendants, including the present petitioner, against delivery of possession. The sole ground assigned by the trial court in doing so was that the defendants failed to produce all the Challans after disposal of the application under Section 7(2) of the 1997 Act. 6. On September 7, 2017, the defendants filed an application for recall of the order dated July 19, 2017, whereby the defence of the defendants was struck out. In the said application, the defendants stated that due to misplacement of some court deposit Challans, the defendants could not file those, for which the application under Section 7(3) of the 1997 Act was allowed. It was further stated that the defendants thereafter, on filing an application for information on August 3, 2017, as to whether rent for the months of October to November, 2012, April and November, 2013, January and February, 2014, May to June, 2014, January and March, 2015 had been deposited or not, had obtained a certificate from the Accountant of the trial court to the effect that the said amounts had been deposited in connection with the suit from which the present revision arises. 7. Such contention was controverted by the plaintiffs by filing a written objection. In the written objection, it was apparently alleged that the rents for six different months were not paid by the defendants. 8. By the order impugned in the present revision, bearing Order No. 80 dated August 26, 2019, the said application for recall of the order dated July 19, 2017 was dismissed by the trial court. The grounds assigned by the trial court were primarily that, although the defendants had relied upon an information slip and photocopies of some Challans which show that the defendants had deposited rents for certain months, the arrears of rent as alleged by the plaintiffs in their written objection, did not match with the information slip produced by the defendants and that the court below could not rely on the photocopies of rent deposit Challans. It was further observed that the trial court was not in a position to recall an order passed by the court, by which the predecessor-in-office of the trial Judge had decided an application on merit and some status of the defence was determined, merely for the interest of natural justice. 9. Learned counsel for the defendant no.1/petitioner argues that the trial court proceeded on an erroneous premise in holding that it could not recall an order passed by the predecessor-in-office of the current Presiding Officer, since there was no bar in doing so in the event a gross error was pointed out to the court below. 10. Moreover, it is argued that, in view of the defendants having produced all relevant Challans and information, and in view of the plaintiffs having failed to prove from the records that the defendants had not deposited the current rent for any month, the trial court acted without jurisdiction in refusing to recall the order striking out the defence, without adverting to the records of the case. 11. Learned counsel for the plaintiffs/opposite party nos. 1 to 5, on the other hand, relies on an unreported judgment of the Supreme Court dated October 22, 2019 passed in Bijay Kumar Singh and others vs. Amit Kumar Chamariya and others, wherein it was held that the deposit of rent along with an application under Section 7(2) was a pre-condition to avoid eviction on the ground of non-payment of arrears of rent. In view thereof, it was held, a tenant would not be able to take recourse to Section 5 of the Limitation Act as it is not an application alone which is required to be filed by the tenant but the tenant has to deposit admitted arrears of rent as well. 12. It is thus submitted that the belated attempt of the petitioner to have the order passed under Section 7(3) of the 1997 Act recalled was not tenable in the eye of law, that too at such a belated stage, since the order under Section 7(2) was passed long back, on October 1, 2007. 13. Upon hearing the arguments of both sides, it is evident that the order under Section 7(2) of the 1997 Act was undisputedly passed on October 1, 2007. However, the judgment cited by the contesting opposite party nos. 13. Upon hearing the arguments of both sides, it is evident that the order under Section 7(2) of the 1997 Act was undisputedly passed on October 1, 2007. However, the judgment cited by the contesting opposite party nos. 1 to 5 (service on the other opposite parties has been dispensed with since they are not necessary parties to this revision) is not applicable to the facts of the present case at all. In the instant case, there has arisen no occasion for acceptance of belated deposits or admitted arrears of rent beyond the statutory period. No prayer for condonation was necessary or made in the instant case and as such, the ratio laid down in Bijay Kumar Singh (supra) is on a different aspect altogether. 14. The present dispute revolves around whether the petitioner and the other defendants complied with the direction given in the order dated October 1, 2007, under Section 7(2) of the 1997 Act, as regards the monthly deposits of current rent. 15. It cannot be overlooked that the order passed under Section 7(3), which was sought to be recalled by the application-in-question, was based on an application under Section 7(3) which was absolutely cryptic and did not disclose the exact period in respect of which the defendants had committed a default. Merely a cursory sentence found place in the said application under Section 7(3), which casually alleged that the defendants had failed and neglected to deposit current rent within due time as required under the provisions of Section 7(1) of the 1997 Act. Even the orders sought to be recalled, by which the defence of the defendants was struck out, was cryptic and did not enumerate as to what were the exact periods/months for which the defendants had failed to comply with the direction given under Section 7(2) regarding current deposits. 16. The said order merely recorded that the defendants failed to produce all the Challans after disposal of the application under Section 7(2) of the 1997 Act and hence, the application under Section 7(3) was allowed. 17. It is relevant to mention here that, even at the stage of passing an order under Section 7(3) of the 1997 Act, the court has to ascertain whether there was actual non-compliance of the provisions of sub-sections (1) or (2) of Section 7 of the 1997 Act, for applying the rigours of Section 7 (3). 17. It is relevant to mention here that, even at the stage of passing an order under Section 7(3) of the 1997 Act, the court has to ascertain whether there was actual non-compliance of the provisions of sub-sections (1) or (2) of Section 7 of the 1997 Act, for applying the rigours of Section 7 (3). Without recording the exact months/periods for which the defaults were committed or the nature of default, if at all, the trial court would be, in any event, without jurisdiction in striking out the defence of the defendants against delivery of possession in a cryptic fashion, thereby taking away a valuable right of the defendants without assigning proper reasons for doing so. 18. In the present case, neither in the application under Section 7(3) nor in the order dated July 19, 2017 passed on such application, can be found any reference to the exact period or months for which the defendants committed default. 19. Apparently, only in their written objection to the application for recall did the plaintiffs/opposite party nos. 1 to 5 point out certain months for which the defendants were in default, without caring to pray for the records to be called for in that regard. The trial court accepted the allegations of the plaintiffs in their written objection as sacrosanct by refusing to recall its earlier order on the ground that the arrears of rents alleged by the plaintiffs in their written objection did not match with the information slip produced by the defendants. The court further held that it could not rely on the photocopies of the rent deposit Challans. In such an event of a dispute having been raised, the trial court acted palpably without jurisdiction in shirking its duty to ascertain as to what were the actual periods of default, if any. 20. In view of the defendants having produced an information slip from the Accountant's office of the trial court as well as photocopies of certain Challans, which were the best they could do in the given circumstances, it was the duty of the trial court either to call for the necessary papers from the Nazirkhana or Accountant's office or grant the defendants another opportunity to produce such records by following due process of law. Since the records were available with the trial court itself, the court below could not have shrugged off its duty by refusing to look into the matter on merits, to ascertain the actual periods of default, if any, more so since there were no particulars either in the order sought to be recalled or the application under Section 7(3) itself, as regards the periods or months of default committed by the defendants. That being so, it was the incumbent duty of the trial court to ascertain from the relevant department of the court or permit the defendants to take appropriate steps in that regard to find out the actual periods of default, if any. 21. That apart, the other ground assigned by the trial court in refusing to recall the order dated July 19, 2017, that it could not recall an order passed by its predecessor-in-office since the same was passed "on merit" and "some status of the defence was determined", is erroneous in law. The court always has the power to rectify its own defect and the fact that a different Judge passed the initial order cannot be a deterrent in that regard. 22. This is a case where even the court was at fault in passing the order striking out the defence without spelling out the periods of default, which the court below ought to have rectified while hearing the recall application of the defendants. 23. The trial court having not done so, the impugned order is vitiated by refusal to exercise jurisdiction vested in the trial court by law and as such ought to be set aside. 24. Accordingly, C.O. No.3673 of 2019 is allowed, thereby setting aside the impugned order and directing the trial court to re-hear and dispose of afresh the defendants' application under Section 151 of the Code of Civil Procedure, for recall of the order dated July 19, 2017 passed under Section 7(3) of the 1997 Act, upon granting both sides the opportunity to prove and rebut the allegations and counter allegations as to default on the part of the defendants in payment of current monthly deposits pursuant to the order under Section 7(2) of the 1997 Act dated October 1, 2007. 25. 25. For the purpose of such fresh disposal, it will be open to the trial court to call for the relevant records from the Accounts Section of the said court and/or Nazirkhana or from any other authority-in-question in the event such deposits had lapsed and had been sent to the treasury, to decide whether there was any such default at all on the part of the defendants, and if so, for what periods. 26. There will be no order as to costs. 27. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.