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2020 DIGILAW 139 (CAL)

Narayan Sharma v. Aloke Kumar Das

2020-02-05

BISWAJIT BASU

body2020
JUDGMENT Biswajit Basu, J. - Supplementary affidavit filed in Court today by Mr. Souradipta Banerjee, learned Advocate appearing on behalf of the petitioner be kept with the record. 2. The defendant in a suit for ejectment is the petitioner of the present application under Article 227 of the Constitution of India. 3. The defendant entered appearance in the suit on December 20, 2018 and filed three independent applications under Section 7, 7(1) and 7(2) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as the said Act in short). 4. The defendant again on January 02, 2019 filed two separate applications one under Section 7(1) and another under Section 7(2) of the said Act. 5. The defendant in his first set of said applications admitted that he is defaulter in payment of rent since February, 2005 and the rate of rent is Rs.300/- per month as alleged by the plaintiff/landlord. 6. The defendant however in his subsequent application under Section 7(2) of the said Act raised a dispute regarding the rate of rent claiming that the rate of rent is Rs.290/- per month not Rs.300/- per month as alleged by the plaintiff/opposite party. 7. The defendant in his second application under Section 7(1) of the said Act prayed permission of the Court to deposit the arrear rent and current rent at the rate of Rs. 290/- per month. 8. The learned Trial Judge by the Order No. 7 dated January 29, 2019 disposed of the first application under Section 7(1) of the said Act filed by the defendant on December 20, 2018 by directing deposit of the arrear rent on and from the month of December, 2018 at the rate of Rs.300/- per month. The said order is the first order under challenge in the present application. 9. Mr. Banerjee submits that the learned Trial Judge should not have disposed of the first application under Section 7(1) of the said Act keeping the subsequent application filed by the defendant on January 02, 2019 under Section 7(1) of the said Act pending since in the said subsequent application the defendant has sought permission of the Court to deposit current and arrear rent at the rate of Rs. 290 per month. 10. Mr. Sukanto Chakraborty, learned Advocate appearing on behalf of the plaintiff/opposite party responding to the said argument of Mr. 290 per month. 10. Mr. Sukanto Chakraborty, learned Advocate appearing on behalf of the plaintiff/opposite party responding to the said argument of Mr. Banerjee submits that pending disposal of an application under Section 7(1) of the said Act, the subsequent application under the said provision of the said Act is not maintainable. Therefore, the learned Trial Judge has not committed any error in allowing the first application of the petitioner dated December 20, 2018 under Section 7(1) of the said Act treating the same as the only application on record. 11. The defendant on January 19, 2019 expressed his intention not to press his said earlier applications filed on December 20, 2018. The learned Trial Judge by his Order No. 10 dated March 19, 2019 recorded such intention of the defendant but in view of the pendency of two sets of applications under the same provision of the said Act fixed April 11, 2019 for clarification of the entire matter. The said order no. 10 dated March 19, 2019 is the next order under challenge in the present application. 12. Mr. Banerjee learned advocate submits that when the defendant had expressed his intention not to press his earlier applications, the learned Trial Judge in the Order No. 10 dated March 19, 2019 should have recorded dismissal of those applications as not pressed, but instead the learned Trial Judge has proceeded to dispose those applications. 13. Mr. Chakraborty refuting the said argument of Mr. Banerjee submits that the first application under Section 7(1) filed on December 20, 2019 was disposed of on January 29, 2019 and as such, there was no scope for the learned Trial Judge to dismiss the said application as not pressed on March 19, 2019. According to him, the learned Trial Judge had fixed a further date in the matter only to clear the confusion cropped up due to filing of two sets of similar applications, the course so adopted by the learned Trial Judge cannot be faulted in the facts and circumstance of the present case. 14. According to him, the learned Trial Judge had fixed a further date in the matter only to clear the confusion cropped up due to filing of two sets of similar applications, the course so adopted by the learned Trial Judge cannot be faulted in the facts and circumstance of the present case. 14. Be that as it may, on perusal of the records it appears that the clarification of the situation as the learned Trial Judge felt necessary was pending when the first application under Section 7(2) of the said Act was taken up for hearing and has been dismissed by the Order No. 16 dated July 08, 2019 which is the third order under challenge in the present revisional application. 15. The learned Trial Judge has dismissed the said application under Section 7(2) of the said Act on the ground that to maintain an application under Section 7(2) of the said Act the defendant is required to deposit admitted arrear rent along with statutory interest thereon in terms of Section 7(1) of the said Act but the defendant since did not deposit the arrear and current rent at the rate of Rs.300/- per month in terms of the order dated January 29, 2019 the application under Section 7(2) is not maintainable. 16. Mr. Banerjee submits that the defendant has expressed his intention not to press his first application under Section 7(2) of the said Act and in the second application under Section 7(2) of the said Act since the defendant has raised a dispute with regard to the rate of rent, the application under Section 7(2) of the said Act should not have been rejected without deciding the said dispute for non-deposit of the arrear and the current rent at the rate of Rs.300/- per month. 17. Mr. Chakraborty responding to the said argument of Mr. Banerjee submits that when the defendant is admitting that he is defaulter in payment of rent, his failure to comply with the order under Section 7(1) of the said Act automatically entails dismissal of his appliction under Section 7(2) of the said Act. 18. 17. Mr. Chakraborty responding to the said argument of Mr. Banerjee submits that when the defendant is admitting that he is defaulter in payment of rent, his failure to comply with the order under Section 7(1) of the said Act automatically entails dismissal of his appliction under Section 7(2) of the said Act. 18. Having heard the learned Advocates for the parties and on perusal of the materials-onrecord it appears that the defendant by filing successive two sets application under Sections 7(1) and 7(2) of the said Act had created a confusion in the record as well as in the mind of the learned Trial Judge. The learned Trial Judge under such situation was absolutely justified in fixing dates for clarification of the situation. 19. Pending clarification of the said situation disposal of the first application filed by the defendant under Section 7(2) of the said Act is not justified. The orders impugned for the aforesaid reason are set aside. 20. The learned Trial Judge shall clarify the anomaly of the situation first and shall thereafter proceed to dispose of one set of applications. The defendant if elects to proceed with his second set of applications, it is open for the plaintiffs to question the maintainability of the said applications. It is made clear that this Court has not gone into the merit of the said applications it is for the learned Trial Judge to decide the same. 21. The learned Trial Judge is requested to make all endeavour to dispose of the said applications expeditiously preferably within a period of six weeks from the date of communication of this order. C.O. 3653 of 2019 is disposed of, with the above observations. There shall be no order for costs. Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.