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2019 Supreme(Cal) 946
IN THE HIGH COURT OF CALCUTTA
Sabyasachi Bhattacharyya, J.
Saurav Das – Appellant
Versus
Kartick Dutta and Ors. – Respondents
C.O. No. 606 of 2018
Decided On : 17-07-2019
Advocate Appeared:
For the Appellant : Abhijit Roy and Tanmay Kumar Dey
Once a dispute is raised and decided under Section 7(2), there is no further scope of deposit under Section 7(1) of the 1997 Act.
Headnote:
West Bengal Premises Tenancy Act - Eviction Suit - Section 7(1), Section 7(2), Section 7(3)
Fact of the Case:
The plaintiff filed an eviction suit under the West Bengal Premises Tenancy Act, 1997. The trial court allowed the opposite parties to deposit rent for certain months and rejected the petitioner's application under Section 7(3) of the 1997 Act. The petitioner challenged the trial court's decision under Article 227 of the Constitution of India.
Finding of the Court:
The trial court acted without jurisdiction in accepting the belated deposits of the opposite parties and refusing to strike out their defence against delivery of possession.
Issues: Whether the trial court had jurisdiction to condone the delay in depositing belated amounts under Section 7(2) of the 1997 Act.
Ratio Decidendi: Once a dispute is raised and decided under Section 7(2), there is no further scope of deposit under Section 7(1) of the 1997 Act. The tenants cannot fall back upon Section 5 of the Limitation Act and claim that a subsequent default was under Section 7(1) and not Section 7(2).
Final Decision: The impugned order was set aside, and the defence of the opposite parties against delivery of possession was struck out under Section 7(3) of the West Bengal Premises Tenancy Act, 1997.
JUDGMENT :
Sabyasachi Bhattacharyya, J.
1. Despite previous service, none appears on behalf of the opposite parties. As such, the matter is decided ex parte.
2. The plaintiff in an eviction suit under the West Bengal Premises Tenancy Act, 1997 has preferred the instant revisional application. Initially the defendants/opposite parties filed applications under Section 7(1) and Section 7(2) respectively of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as "the 1997 Act").
3. The trial court adjudicated such applications, thereby determining the arrears payable by the defendants/opposite parties, on June 7, 2008.
4. Pursuant to such order, the opposite parties went on depositing the amounts as directed therein for some time. However, no deposit was made by the opposite parties for the period from March, 2015 to July, 2015. Consequently, the petitioner filed an application under Section 7(3) of the 1997 Act, for striking out the defence of the opposite parties on the ground of such non-deposit.
5. On the other hand, the defendants/opposite parties took out an application under Section 151 of the Code of Civil Procedure for permission to deposit the rent for the months of March, 2015 to July, 2015 and also to deposit the rent month by month in the suit.
6. By the impugned order dated June 9, 2016, the trial court allowed the opposite parties to deposit the rent for the months of March, 2015 to July, 2015 and consequentially to reject the petitioner's application under Section 7(3) of the 1997 Act.
7. Although the present application under Article 227 of the Constitution of India has been filed much after the passing of the impugned order, the petitioner has furnished sufficient explanation in paragraph nos. 8 to 10 of the same for the delay in preferring the same, which is accepted by this court and the application entertained.
8. A crucial question raised by the petitioner is, whether the trial court acted without jurisdiction in condoning the delay in depositing the belated amounts, despite the specific bar to the power of the court to do so, as stipulated in the proviso to Section 7(2) of the 1997 Act.
9. Section 7 of the said Act is set out below:
"7. When a tenant can get the benefit of protection against eviction. - (1) (a) On a suit being instituted by the landlord for eviction on any of the grounds referred to in section 6, the tenant shall, subject to the provisions of sub-section (2) of this section, pay to the landlord or deposit with the Civil Judge all arrears of rent, calculated at the rate at which it was last paid and up to the end of the month previous to that in which the payment is made together with interest at the rate of ten per cent per annum.
(b) Such payment or deposit shall be made within one month of the service of summons on the tenant or, where he appears in the suit without the summons being served upon him, within one month of his appearance.
(c) The tenant shall thereafter continue to pay to the landlord or deposit with the Civil Judge month by month by the 15th of each succeeding month, a sum equivalent to the rent at that rate.
(2) If in any suit referred to in sub-section (1), there is any dispute as to the amount of the rent payable by the tenant, the tenant shall, within the time specified in that sub-section, deposit with the Civil Judge the amount admitted by him to be due from him together with an application for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. On receipt of the application, the Civil Judge shall, having regard to the rate at which rent was last paid and the period for which default may have been made by the tenant, make, as soon as possible within a period not exceeding one year, an order specifying the amount, if any, due from the tenant and, thereupon, the tenant shall, within one month of the date of such order, pay to the landlord the amount so specified in the ord
