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HIGH COURT OF CALCUTTA
Sankar Prasad Mitra, Salil Kumar Datta
SITALA DEBI - Appellant
Versus
MAN BAHADUR - Respondent
CR 1893 Of 1970
Decided On : FEBRUARY 03, 1972
WEST BENGAL PREMISES TENANCY ACT, 1956 - SECTION 17 - CONDONATION OF DELAY IN DEPOSIT OF RENT - COURT'S POWER - SCOPE AND LIMITATIONS - INHERENT POWERS OF THE COURT UNDER SECTION 151 OF THE CODE OF CIVIL PROCEDURE - APPLICABILITY - CIRCUMSTANCES WARRANTING CONDONATION OF DELAY - POVERTY OF THE TENANT AS A GROUND FOR CONDONATION - INTERPRETATION AND APPLICATION.
Fact of the Case:
The defendant, a tenant under the West Bengal Premises Tenancy Act, 1956, defaulted in payment of rent from October 1968 to April 1969. He filed an application under Section 17 (2-A) (b) of the Act, admitting the arrears and seeking permission to deposit them in easy installments. The trial court determined the arrear rent and directed the defendant to deposit it in monthly installments along with the current rent. The defendant failed to produce challans in court on the specified dates, and the plaintiff filed an application under Section 17 (3) for striking out the defense. The defendant filed an application for condonation of the delay, stating that he was unable to deposit the rent due to poverty. The trial court condoned the delay and dismissed the plaintiff's application.
Finding of the Court:
The court held that the trial court erred in condoning the delay and exercising its jurisdiction with material irregularity. It held that poverty or incapacity to pay cannot be the sole ground for relief in the context of the mandatory provisions of the statute, as rent is a recurring obligation consciously undertaken. The court further held that the inherent powers of the court under Section 151 of the Code of Civil Procedure can be exercised to prevent abuse of the process of the court or to correct an injustice caused by an act of the court itself, but such powers cannot be used to violate mandatory provisions of the statute or to deprive a party of a right accrued due to the default of the other party.
Issues: 1. Whether the court has the power to condone the delay in deposit of rent under Section 17 of the West Bengal Premises Tenancy Act, 1956, beyond the time limits specified in the Act. 2. Whether the inherent powers of the court under Section 151 of the Code of Civil Procedure can be invoked to condone such delay. 3. Whether poverty of the tenant can be a sufficient ground for condonation of delay in deposit of rent.
Ratio Decidendi: 1. The court has inherent powers under Section 151 of the Code of Civil Procedure to prevent abuse of the process of the court or to correct an injustice caused by an act of the court itself. However, these powers cannot be used to violate mandatory provisions of a statute or to deprive a party of a right accrued due to the default of the other party. 2. The provisions of Section 17 of the West Bengal Premises Tenancy Act, 1956, regarding the deposit of rent and the consequences of default are mandatory. The court cannot extend the time limits specified in the Act or condone the delay in deposit of rent beyond those limits. 3. Poverty or incapacity to pay cannot be the sole ground for condonation of delay in deposit of rent. The tenant must show that the delay was caused by supervening circumstances beyond his control, despite his best efforts to comply with the statutory requirements.
Final Decision: The court set aside the trial court's order condoning the delay and dismissing the plaintiff's application under Section 17 (3). It allowed the plaintiff's application and directed the striking out of the defense against delivery of possession.
( 1 ) THIS Rule is directed against the Order No. 28 dated April 2, 1970 passed by the learned Judge, City Civil Court, Calcutta in Ejectment Suit No. 649 of 1969. The plaintiff instituted a suit on May 15. 1969 for recovery of possession of the suit premises held by the defendant as a monthly tenant according to English calendar month at a monthly rent of Rs. 20/- payable according to the month of the tenancy, on notice to quit. The ground for eviction was default in payment of rent, the rent being in arrears from Oct. 1968. Admittedly the tenancy was governed by the West Bengal Pre-mises Tenancy Act. 1956 hereinafter re-ferred to as the said Act.
( 2 ) THE summons of the suit was duly served on May 30. 1969 and the defendant entered appearance on June 9 following, praying for time to file writ-ten statement for contesting the suit. On June 12. 1969. the defendant filed an application praying for permission to de-posit the rent for May 1969 as also cur-rent rents as they become due. On June 28, 1969, the defendant filed an application under Section 17 (2-A) (b) of the said Act. admitting that rent was in ar-rear from October 1968 to April 1969 and praying for leave to deposit arrears by easy instalments of Rs. 10/- per month as he was in distress being thrown out of employment. The defendant thereafter filed his written statement admitting the default and stated that in view of the deposits of current rent and of his ap-plication under Section 17 (2-A) (b) which was pending, he was entitled to protection against eviction. The plaintiff on the same day filed an objection to the said application which was taken up for hearing on September 12, 1969. The learned Judge on a consideration of the evidence and materials on record, determined the arrear rent to be Rs. 140/- and interest thereon Rs. 7. 53, in ell Rs. 147-53 and the said amount was directed to be deposited by monthly instalments of Rs. 20/- with the current rent by the 15th of the succeeding month. The defendant was directed to produce challans in Court on 15th of every month. In default the order was to be revoked and penal con-sequences would follow.
( 3 ) AS the challans were not produced, the plaintiff on December 12, 1969 filed an application under Section 17 (3) for striking out the defence. The application came up for hearing on March 4, 1970 when the defendant filed challans. It transpired therefrom that though the instalments as also the amounts payable for months of September and November 1969 were duly deposited in time, instalments as also the amounts for October and December 1969 were deposited out of the time. At that stage the defendant filed an application wherein he submitted that he could not get money from his employer nor arrange money from anywhere and that he was a poor man. Accordingly it was prayed that the court should condone the delay in depositing the rent. It may be noted that the instalment and amount for October 1969 were deposited on November 20. 1969 while the said amounts for December 1969 were deposited on February 4, 1970.
( 4 ) THE application of the plaintiff under Section 17 (3) and the defendant's application for condonation of the delay came up for hearing on April 2, 1970. The court on hearing the parties, was of opinion that the application under Section 17 (2-A) and (b) was not vet disposed of which is obviously Incorrect, and also that the Court was entitled to extend the time for making for deposit contemplated by that section. It was further held that if the delay was condoned, it would have the effect of extending the time for deposit. On merits, the Court found that there was no intentional default on the part of the defendant, as it was due to his poverty. The Court accordingly extended the time for deposit of the concerned payments upto the dates of their actual deposits. The plaintiff's application under Section 17 (31 was accordingly rejected by the same Order No. 28 dated April 2. 1970 Again
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