Research › Search › Judgment

Calcutta High Court · body

2024 DAILYLAW 2357 (CAL)

Ashok Kumar Bera v. Biswanath Ghorai

2024-05-03

Ajoy Kumar Mukherjee

body2024
1.The plaintiff/opposite party herein on 06th September, 2017 filed a suit, being other suit no. 42 of 2017 before Civil Judge (Junior Division) 1st Court Tamluk against the defendants/petitioners herein for khas possession by eviction, mean profit and also for other reliefs. 2.The petitioners being defendant no.1, 2, 3 and 4 of the said suit after getting summon entered appearance in the said suit on 14th December, 2017. Thereafter on 06th March, 2018, the defendants/ petitioners herein filed applications under section 7(1) and 7(2) of the West Bengal Premises Tenancy Act, 1997 (in short Act of 1997) and along with the said applications, the defendants/petitioners also filed another application under section 5 of the Limitation Act 1963 for condoning delay in filing the applications under section 7(1) and 7(2) of the Act of 1997. By an order dated 9th March, 2018, the court below allowed defendants, Application under section 7(1) of the Act of 1997 and fixed next date for hearing defendants’ application under section 7(2) of the Act. Thereafter the petitioner deposited the alleged arrear rent and also deposited original challan on 27.03.2018. On 03.04.2018 the plaintiffs /opposite parties filed a petition for modification of the aforesaid order dated 09.03.2018 which came up for hearing before the court below on 24.04.2018 and after hearing the parties court below modified order dated 9th March, 2018 passed in connection with the Application under Section 7(1)and fixed next date for rehearing of the petition filed by defendant petitioners under section 7(1) of the Act of 1997 along with the Application filed under section 5 of the Limitation Act. Thereafter plaintiff opposite party filed written objection against defendants’ applications filed under section 7(1) and 7(2) of the Act of 1997 and also against the petitioner under section 5 of the limitation Act on 29.9.2018. All the aforesaid applications thereafter came up for hearing before the court below on 09.10.2018 and by the order impugned, learned court below rejected all the three applications filed by the defendants/ petitioners. 3. Being aggrieved by that order Mr. Das. Learned counsel appearing on behalf of the petitioner submits that the court below has acted material irregularity in rejecting the petitioners’ application under section 5 of the Limitation Act seeking condonation of delay filed in connection with Applications under section 7(1) and 7(2) of the Act of 1977. 3. Being aggrieved by that order Mr. Das. Learned counsel appearing on behalf of the petitioner submits that the court below has acted material irregularity in rejecting the petitioners’ application under section 5 of the Limitation Act seeking condonation of delay filed in connection with Applications under section 7(1) and 7(2) of the Act of 1977. He did not consider that the clerk concerned failed to take the next date fixed by the court below and for which the delay was caused. However immediate after getting the knowledge about next date of the instant suit, the petitioners appeared and filed applications under sections 7(1) and 7(2) of the Act of 1997, along with application under section 5 of the Limitation Act for condonation of delay. Learned court below failed to consider that section 5 of the Limitation Act is applicable even in a proceeding initiated under the Act of 1997. He also failed to consider that the time limit mentioned in section 7 of the Act is not inflexible and it can be extended by the court invoking section 5 of the Limitation Act. Accordingly he prayed for setting aside the order impugned. 4. In this context he relied upon the following judgment:- (i) Bahadur Singh Kathotia Vs. Purabi Basu reported in 2023 SCC Online Cal 350, (2) Shibu Chandra Dhar Vs. Sri Pasupati Nath Auddya (2002 Supreme Appeals reporter (Civil) 446. 5. Learned counsel appearing for the opposite party submits that it is settled position of law that section 5 of the Limitation Act has got no application for condonation of delay in filing the application under section 7(1) and 7(2) of the Act and as such present application is misconceived and the court below rightly rejected the aforesaid applications filed by the defendant/petitioner. 6. In this context he relied upon the following judgments:- (a) Bijay Kumar Singh and others Vs. Amit Kumar Chamariya and another reported in (2019) 10 SCC 660 . (b) Papiya Sengupta and others Vs. Suvasis Ghosh reported in 2020 SCC Online Cal 3267 (c) The Secretary Charak Tala Consumer Co-operative Store Limited Vs. Dr. Arun Kumar Giri, C.O. 1997 of 2023. 7. Amit Kumar Chamariya and another reported in (2019) 10 SCC 660 . (b) Papiya Sengupta and others Vs. Suvasis Ghosh reported in 2020 SCC Online Cal 3267 (c) The Secretary Charak Tala Consumer Co-operative Store Limited Vs. Dr. Arun Kumar Giri, C.O. 1997 of 2023. 7. In Bijay Kumar Singh and others (supra the Apex Court held that the subsection (1) of section 7 of the Act relieved the tenant from ejectment on the ground of non- payment of arrears of rent if he paid to the landlord or deposited with the Civil Judge all arrears of rent calculated at the rate at which it was last paid and upto the end of the month previous to that in which the payment was made, together with interest at the rate of 10% per annum and such payment/deposit has to be made within one month of service of summons on the tenant or where he appeared in the suit without the summons being served upon him, within one month of his appearance. It was further held that the tenant is bound to take steps as contemplated under section 7 (1) and 7 (2) of the Act and the deposit of rent along with application for determination of dispute, within the statutory time limit is a pre-condition to avoid eviction on the ground of non-payment of arrears of rent. 8. In the present context the petitioners admittedly appeared before the court on 14.12.2017 without disclosing when they received the summon but they had filed the applications under section 7(1) and 7(2) of the Act of 1997 on 06.03.2018, which is not within one month, even from date of their appearance. 9. In para 21 of the Bijay Kumar Singh Case (supra) the apex court clearly observed. 21. Sub-section (3) provides for consequences of non-payment of rent i.e. striking off the defence against the delivery of the possession and to proceed with the hearing of the suit. Such provision is materially different from sub- sections (2-A) and (2-B) which was being examined by this Court in B.P. Khemka [B.P. Khemka (P) Ltd. v. Birendra Kumar Bhowmick, (1987) 2 SCC 407 ] . Such provision is materially different from sub- sections (2-A) and (2-B) which was being examined by this Court in B.P. Khemka [B.P. Khemka (P) Ltd. v. Birendra Kumar Bhowmick, (1987) 2 SCC 407 ] . Sub-sections (2-A) and (2-B) of Section 17 of the 1956 Act confer unfettered power on the court to extend the period of deposit of rent, which is circumscribed by the proviso to Section 7(2) and sub-section (3) of Section 7 of the Act. Therefore, the provisions of sub-section (2) are mandatory and required to be scrupulously followed by the tenant, if the tenant has to avoid the eviction on account of non-payment of arrears of rent under Section 6 of the Act. There is an outer limit for extension of time to deposit of arrears of rent in terms of the proviso to sub-section (2) of Section 7 of the Act. The consequences flowing from non-deposit of rent are contemplated under sub-section (3) of Section 7 of the Act. Therefore, if the tenant fails to deposit admitted arrears of rent within one month of receipt of summons or within one month of appearance without summons and also fails to make an application for determination of the disputed amount of rate of rent and the period of arrears and the subsequent non-payment on determining of the arrears of rent, will entail the eviction of the tenant. Section 7 of the Act provides for a complete mechanism for avoiding eviction on the ground of arrears of rent, provided that the tenant takes steps as contemplated under sub-section (2) of Section 7 of the Act and deposits the arrears of rent on determination of the disputed amount. The deposit of rent along with an application for determination of dispute is a precondition to avoid eviction on the ground of non-payment of arrears of rent. In view thereof, tenant will 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.” 10. In view thereof, tenant will 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.” 10. From the aforesaid observation it is clear that in the said judgment Apex Court observed that the tenant will 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. 11. A Division Bench of this court in The Calcutta Gujrati Education Society Vs. Sri Ajit Narayan Kapoor, reported in 2022 (1) ICC 414 (Cal) made same observation that Article 137 cannot be made applicable because it is a requirement of compliance by the tenant to seek protection mandated by the statute as competently legislated by the State Legislature and specifically limiting application of the Limitation Act, and as such there cannot be occasion for application of the period of three years, overriding the period and extension specified by the local law and thereafter condonation of delay as under section 5. Accordingly Division Bench concluded by saying that Limitation Act, 1963 has no application in respect of an application by a tenant made under section 7 for determination of arrears of disputed rent. 12. The Judgement passed by three judges Bench in Shibu Chandra Dhar Vs. Pasupati Nath Auddya (supra), which has been heavily relied by petitioner herein, was also duly considered in paragraph15 of Bijay Kumar Singh’s (supra) judgment . In fact in terms of Clause (a) of Sub-section (2-A) of section 17 of the 1956 Act, the requisite power to extend the time for deposit of rent on an application made by the tenant was given by the legislature and such power was given without any restriction. But no such power has been conferred by the legislature in the present Act of 1997. 13. But no such power has been conferred by the legislature in the present Act of 1997. 13. The observation made by a co-ordinate Bench of this court in Bahadur Singh Kathotia (supra) that the court disposing applications under section 7(1) and 7(2) of the Act of 1997 may condone the delay in certain circumstances mentioned in the said judgment is per incurian in view of above-quoted observation made by Apex Court in Bijay Kumar Singh’s Case (Supra). 14. In such view of the matter and in view of settled position of law, I find nothing illegality or impropriety in the order impugned, nor does it call for interference by this court, invoking jurisdiction under Article 227 of the Constitution of India. 15. C.O. 436 of 2019 is accordingly dismissed, Connected Application is also accordingly disposed of. 16. Urgent photostat certified copy of this order, if applied for, be supplied to the parties, on priority basis on compliance of all usual formalities.