IMPORTANT POINT
Application for determination of rent must be preceded by deposit of arrears of rent.

JUDGMENT :

HEMANT GUPTA, J.

1. The challenge in the present appeals is to an order passed by the High Court of Calcutta on 13.05.2016 in two separate eviction petitions filed by the respondent herein against two tenants.

2. Learned Single Judge has set aside the order dated 10.08.2011 whereby an application filed by the appellant under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 [For short the “Act”] was allowed.

3. The brief facts leading to the present appeals are that the respondent filed an eviction petition against the appellants on the ground of non-payment of arrears of rent in respect of two shops alleging that initially, Sudama Singh was tenant on the monthly rent of Rs.45/-and Rs.25/-per month but now the rent payable is Rs.306/-and Rs.174/-per month. It is the case of the respondent that a Receiver was appointed in Money Execution Case No. 23/1961 and the said Receiver was discharged vide order dated 10.02.2009. The respondent demanded arrears of rent but since the amount of arrears at the rate of Rs.306/-per month was not paid, the petition for eviction was filed. The appellant did not deposit any rent but filed an application to determine the arrears of rent asserting that they have paid monthly rent up to the month of June 1993 to the Receiver. However, the Receiver has not informed the appellants as to the person authorised to collect rent, therefore, they could not pay it.

4. The learned Trial Court allowed the application, determined the arrears of rent and granted time to pay the arrears of rent so determined. The learned Single Bench set aside the order passed by the Trial Court as it chose to follow the order passed in CO 1941 of 2013, though another Coordinate Bench had taken a contrary view in CO 55 of 2014. Learned Single Judge found that in the order passed by Coordinate Bench in CO 55/2014, no lis was decided and that no principle was laid down which may give light to the learned Trial Court to decide the pending litigation. Therefore, the learned Single Judge, decided the matter on merits rather than referring it to the larger Bench for decision.

5. In this background, the argument of the learned counsel appearing for the appellant is that the High Court has not maintained judicial decorum and should have referred the matter to the larger Bench to decide the scope and ambit of Section 7(2) of the Act. We find that since a short question of law arises for consideration, therefore, without going into the question as to whether learned Single Judge should have referred the matter to the larger Bench or not, the question to be decided by this Court is to bring certainty in respect of scope of Section 7 of the Act.

6. Learned counsel for the appellant contends that the provisions of Section 7(2) of the Act are pari-materia to Section 17(2) of West Bengal Premises Tenancy Act, 1956 [for short the “1956 Act”] which was the subject matter of consideration in an earlier judgment of this Court reported as B.P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick, (1987) 2 SCC 407. Learned counsel for the appellant argued that the Limitation Act, 1963 would be applicable to seek condonation of delay in filing an application under Section 7(2) of the Act. The learned Counsel also placed reliance upon judgments reported as Shibu Chandra Dhar v.Pasupati Nath Auddya, (2002) 3 SCC 617 and Gaya Prasad Kar v. Subrata Kumar Banerjee, (2005) 8 SCC 14(3).

7. On the other hand, learned counsel for the respondent submitted that the judgments in B.P. Khemka, Shibhu Chandra Dhar and Gaya Prasad Kar deal with Section 17 of the 1956 Act, wherein, sub section (2A) empowers the court to extend the time specified in sub section (1) or sub section (2). Sub section (2A) is an overriding provision starting with a non-obstante clause. There is no such equivalent provision in the Act which was enacted while repealing the 1956 Act. It is argued that B. P. Khemka has been considered by a three Judge Bench judgment reported as Arjun Khiamal