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1990 Supreme(Cal) 470
High Court Of Calcutta
Ajit Kumar Nayak
KALI TALUKDAR - Appellant
Versus
PRODOSH KUMAR BAJPAIE - Respondent
A. A. D. 611 Of 1985
Decided On : 12/18/1990
GOURI SANKAR PAL, MRITUNJOY PALIT, Prabir Kumar Samanta, R.N.MISRA,
An error in the calculation of arrear rent made by the trial court in its order under section 17(2a) of the West Bengal Premises Tenancy Act, which affects the decision of the case, can be set aside under section 105 C.P.C., even if the order was not appealed against.
Headnote:
WEST BENGAL PREMISES TENANCY ACT - SECTION 17 - ERROR IN CALCULATION OF ARREAR RENT - RECTIFICATION OF MISTAKE - POWER OF COURT IN REGULAR APPEAL - INTERPRETATION OF SECTION 17(2A) AND 17(3) - FINALITY OF INTERLOCUTORY ORDERS.
Fact of the Case:
Plaintiff-respondent filed a suit for eviction of the defendant-appellant from the suit premises on the ground of default in payment of rent. The defendant-appellant denied the same alleging payment and started depositing rent in the trial court from April 1970 as per section 17(1) of the West Bengal Premises Tenancy Act. The defendant-tenant filed a petition under sections 17(2) and 17(2a) of the Act for determination of the amount of arrear rent praying for installments to pay the same. The trial court found that the defendant was in arrears from November 1968 to March 1970 and found that a sum of Rs. 255/- was due at the admitted rate of rent of Rs. 15/- per month and granted 17 monthly installments to the defendant-appellant to pay the said amount. The plaintiff-respondent filed an application under section 17(3) of the Act, for striking out the defense of the defendant against delivery of possession alleging that the defendant-tenant had deposited rent for the months of September, October 1970, and April 1972 out of time and thereby had committed default in payment of rent. The trial court rejected the application under section 17(3) of the Act holding that the defendant-tenant had complied with the court's order dated 25.5.1972 and had deposited all arrears of rent and also the current rent in court. The High Court, on being moved by the plaintiff-respondent by a revision application, allowed the prayer of the plaintiff-respondent and directed the trial court to proceed according to law. The trial court accordingly held that the defendant was a defaulter and his defense against delivery of possession was struck out and decreed the plaintiff's suit. The defendant-appellant preferred an appeal before the court of District Judge, Alipore. The learned Additional District Judge who heard this appeal held that the defendant-appellant had fully complied with the court's order dated 25.5.1972 but actually due to inadvertence the trial court had failed to discharge its statutory duty in the matter of calculation of arrears of rent and interest to be paid by installments by a tenant in terms of section 17(2a)(b) of the said Act read with the proviso thereunder. The first appellate court observed that the trial court should have taken into consideration the invalidity of the deposits for the months of October 1970 and April 1972, as the proviso to clause (b) of sub-section (2a) of the Act lays down that the order will include all amounts calculated at the rate of rent for the period of default including the period subsequent thereto up to the end of the month previous to that in which the order under this sub-section is to be made with interest on any such amount calculated at the rate specified in sub-section (1) from the date when the amount was payable up to the date of such order. The first appellate court expressed its inability to interfere with the trial court's order as the plaintiff-landlord's application under section 17(3) of the Act has been allowed by the High Court in the revision. The defendant-tenant preferred a second appeal.
Finding of the Court:
The High Court held that the order passed by the trial court under section 17(2a) of the Act on 25.5.1972 contained a gross error in calculating the amount of arrear rent due from the defendant-tenant. The court found that the trial court failed to take into account the entire amount of arrear and the rate of interest that was to accrue. The court also observed that the striking out of the defense against delivery of possession under section 17(3) can only be made when there is a breach of the order or direction given in the order passed by the court under section 17(2a) of the Act. The court held that the order dated 25.5.1972 under section 17(2a) did not contain any such direction and therefore, there was no breach or violation of the order by the defendant-tenant. The court further held that the error made by the trial court escaped the attention of the High Court while dealing with the revision petition. The court concluded that the order passed by the trial court under section 17(2a) of the Act was erroneous and affected the decision of the case, and therefore, it could be set aside under section 105 C.P.C.
Issues: 1. Whether the High Court has the power to rectify a mistake made in its order in disposing of a revision application against an interlocutory order arising out of the same proceeding while hearing a regular appeal against a final decree? 2. Whether the order passed by the trial court under section 17(2a) of the West Bengal Premises Tenancy Act on 25.5.1972 was erroneous and affected the decision of the case?
Ratio Decidendi: 1. The court held that the order passed by the High Court in revision relating to an interlocutory proceeding cannot be taken to be a finality in the matter and if there is any error, defect, or irregularity in such order, affecting the decision of the case, the same may be set forth as a ground of appeal under section 105 C.P.C. 2. The court held that the order passed by the trial court under section 17(2a) of the Act on 25.5.1972 contained a gross error in calculating the amount of arrear rent due from the defendant-tenant. The court found that the trial court failed to take into account the entire amount of arrear and the rate of interest that was to accrue. The court also observed that the striking out of the defense against delivery of possession under section 17(3) can only be made when there is a breach of the order or direction given in the order passed by the court under section 17(2a) of the Act. The court held that the order dated 25.5.1972 under section 17(2a) did not contain any such direction and therefore, there was no breach or violation of the order by the defendant-tenant. The court further held that the error made by the trial court escaped the attention of the High Court while dealing with the revision petition. The court concluded that the order passed by the trial court under section 17(2a) of the Act was erroneous and affected the decision of the case, and therefore, it could be set aside under section 105 C.P.C.
Final Decision: The High Court allowed the second appeal, set aside the judgment and decree of the first appellate court, and remanded the case to the trial court to pass a proper order in accordance with law under section 17(2a) of the West Bengal Premises Tenancy Act on the basis of the petition filed by the tenant-application.
( 1 ) THE only point of law that arises in this second appeal is whether this Court while hearing a regular appeal against a final decree is powerless to rectify a mistake made earlier in its order in disposing of a revision application against an interlocutory order arising out of the same proceeding.
( 2 ) TO have a proper appraisal of law, it would be necessary to bear in mind the facts of this case. The plaintiff-respondent brought the suit for eviction of the defendant-appellant from the suit premises on the ground of default in payment of rent from November, 1968 to March, 1970, The defendant-appellant denied the same alleging payment, and since her appearance in the suit started depositing rent in the trial court from the month of April, 1970 as per terms of section 17 (1) of the West Bengal Premises Tenancy Act (hereinafter referred to as the Act ). The defendant-tenant further filed a petition under sections 17 (2) and 17 (2a) of the said Act before that court for determination of the amount of arrear rent praying for instalments to pay the same. The learned Munsif (trial Court) by order dated 25. 5. 1972, found that the defendant was in arrear from November, 1968 to March, 1970 and found that a sum of Rs. 255/- was due at the admitted rate of rent of Rs. 15/- per month and granted 17 monthly instalments to the defendant-appellant to pay the said amount.
( 3 ) THE plaintiff-respondent thereafter filed an application on 24. 9. 1973, under section 17 (3) of the said Act, for striking out the defence of the defendant against delivery of possession alleging that the defendant-tenant had deposited rent for the months of September, October, 1970 and April 1972 out of time and thereby had committed default in payment of rent.
( 4 ) THE trial court rejected such application under section 17 (3) of the Act on 20. 11. 1974 holding that the defendant-tenant had complied with the courts order dated 25. 5. 1972 and had deposited all arrears of rent and also the current rent in court. This court, on being moved by the plaintiff-respondent by a revision application, allowed, by its order dated 29. 7. 76, the prayer of the plaintiff-respondent and directed the trial court to proceed according to law. The trial court accordingly held that the defendant was a defaulter and his defence against delivery of possession was struck out and decreed the plaintiff's suit.
( 5 ) AGAINST that the defendant-appellant preferred an appeal before the court of District Judge, Alipore.
( 6 ) THE learned Additional District Judge who heard this appeal held that the defendant-appellant had fully complied with the courts order dated 25. 5. 72 but actually due to inadvertence the trial court had failed to discharge its statutory duty in the matter of calculation of arrears of rent and interest to be paid by instalments by a tenant in terms of section 17 (2a) (b) of the said Act read with the proviso thereunder. In other words, the first appellate court observed that in passing the order dated 25. 5. 72, disposing of the defendant's petition under section 17 (2a) of the said Act, the trial court should have taken into consideration the invalidity of the deposits for the months of October, 1970 and April, 1972, (which were undisputedly deposited slightly out of time) , as the proviso to clause (b) of sub-section (2a) of the Act lays down that the order will include all amounts calculated at the rate of rent for the period of default including the period subsequent thereto up to the end of the month previous to that in which the order under this sub-section is to be made with interest on any such amount calculated at the rate specified in sub-section (1) from the date when the amount was payable up to the date of such order. He further observed, since the court failed to include the rents of the said two months in its order and thereby not correctly deciding the defendant's application under section 17 (2a), the striking out of the defen
