Arijit Banerjee JUDGMENT
Arijit Banerjee, J.
1. The plaintiff filed the present suit on 22 November, 2013 claiming a decree for recovery of khas possession of the suit premises, decree for arrear rent, decree for damages and decree for mesne profits. The writ of summons was received by the defendants on 10 December, 2013. The defendants entered appearance through their learned Advocate on 12 December, 2013. The written statement was served on the plaintiff's learned Advocate on 17 February, 2014. In view of the defendants failing to comply with the provisions of Secs. 7(1) and (2) of the West Bengal Premises Tenancy Act, 1997(in short the said 'Act'), the plaintiff on 2 June, 2014 filed an application being GA No. 1643 of 2014 under Sec. 7(3) of the said Act for striking out the defence of the defendants. The defendants filed an affidavit in opposition to the Sec. 7(3) application wherein it was contended that they were not obliged to file any application under Secs. 7(1) and (2) of the said Act because the suit has been filed before the 'Civil Judge'. During the hearing of the said Sec. 7(3) application, the defendants served on the plaintiff's learned Advocate copies of the applications under Secs. 7(1) and (2) of the said Act being GA Nos. 2908 of 2014 and 2910 of 2014 along with two applications under Sec. 5 of the Limitation Act being GA No. 2907 of 2014 and GA No. 2909 of 2014. In the said applications for condonation of delay of about 272 days the defendants contended that the delay in filing the applications under Secs. 7(1) and (2) of the said Act had been caused by the misguidance of the Learned Advocate of the defendants whom the defendants contended, they had subsequently removed as their Advocate.
2. By a common order dated 13 January, 2015 a learned Judge of this Court allowed the applications of the defendants under Secs. 7(1) and (2) of the said Act. The plaintiff preferred an appeal against the said order. The Hon'ble Appeal Court set aside the said order and remanded back the matter to the First Court for fresh consideration.
3. Accordingly, the present applications are before me.
Contention of the plaintiff:-
4. Appearing for the plaintiff, Mr. Sabyasachi Chowdhury, Learned Sr. Counsel submitted that after receiving the writ of summons, it was the duty of the defendants to file application(s) under Secs. 7(1) and (2) of the said Act and deposit the rent before the Civil Judge within one month. The defendants duly filed their written statement within one month of receiving the writ of summons but they failed and neglected to comply with the mandatory provisions of Secs. 7(1) and (2) of the said Act. Hence, the defence of the defendants is liable to be struck out. In this connection, Mr. Chowdhury relied on a decision of the Hon'ble Apex Court in the case of Mrs. Manju Choudhary vs. Dulal Kumar Chandra, MANU/SC/0779/1987 : AIR 1988 SC 602. Learned Counsel also relied on a decision of a learned Single Judge of this Court in the case of M/s. Diopharma vs. Sri Rabindra Nath Sadhukhan, MANU/WB/0496/2013 : (2013) 4 ICC 614.
5. Mr. Chowdhury then submitted that the delay in filing the applications under Secs. 7(1) and (2) of the Act should not be condoned as the explanation given for the delay is not acceptable or bona fide. The plea of the defendants that they were prevented from filing the applications under Secs. 7(1) and (2) of the said Act due to wrong advice of their earlier Advocate is not sustainable as after filing the said applications on 10 September, 2014, the defendants executed their Vakalatnama in favour of the same learned Advocate on 20 September, 2014 in Misc. Case No. 1961 of 2014 filed before the City Civil Court, 6th Bench. Had the defendants been misguided by the said learned Advocate, they surely would not have engaged him subsequently to represent them in another proceeding.
6. Learned Counsel further submitted that the plea taken by the defendants in the applications under Secs. 7(1) and (2) of the said Act that the learned Advocate of the defendants lost sight of the amendment of 2005 to the said Act is not believable as the defendants in their affidavit in opposition filed in the plaintiff's application under Sec. 7(3) of the said Act admitted the fact that by the amendment of 2005, the words 'Rent Controller' were substituted by the words 'Civil Judge'.
7. Mr. Chowdhury then submitted that in the condonation of delay applications filed in connection with the applications under Secs. 7(1) and (2) of the said Act, the defendants stated that they came to know about the 2005 amendment to the said Act whereby the words 'Rent Controller' were replaced by the words 'Civil Judge', only after the plaintiff filed the petition under Sec. 7(3) of the said Act. The application under Sec. 7(3) was affirmed by the plaintiff and served on the defendants on 2 June, 2014 and the applications under Secs. 7(1) and (2) of the said Act were filed by the defendants on 10 September, 2014. No explanation has been given by the defendants in respect of the 98 days' delay between 3 June, 2014 and 9 September, 2014. Hence, the applications under Sec. 5 of the Limitation Act are liable to be dismissed.
8. Mr. Chowdhury submitted that even if the defendants deposited the rent for the disputed period before the Rent controller, such deposits are invalid deposits. Post 2005 amendment to the said Act, after filing of an eviction suit, the tenant is required to pay the rent to the Landlord or deposit the same before the 'Civil Judge'. There is no other way prescribed in the statute. The tenant has to follow the procedure as prescribed in the statute. A strict compliance with the statute is necessary. In this connection learned Counsel relied on the Hon'ble Apex Court's decision in the case of Atma Ram vs. Shakuntala Rani, MANU/SC/0521/2005 : (2005) 7 SCC 211.
9. Mr. Chowdhury finally relied on a decision of the Apex Court in the case of Nasiruddin vs. Sita Ram Agarwal, MANU/SC/0100/2003 : AIR 2003 SC 1543, in support of his submission that the rent legislation is normally intended for the benefit of the tenants but such benefits can be enjoyed by the tenants only on the basis of strict compliance with the statutory provisions.
Contention of the defendants:-
10. Appearing for the defendants, Mr. Jishnu Chowdhury, learned Counsel submitted that from February, 2012, the plaintiff refused to accept rent and even prior thereto, for a few months, the plaintiff accepted rent but did not issue any rent receipt. Rent was being deposited with the Rent Controller. In this connection, learned Counsel referred to copies of the challans at pages 9 to 72 of the defendants' supplementary affidavit dated 23 April, 2015. He submitted that this is not disputed in the affidavit in opposition filed to the supplementary affidavit. In the appeal filed by the defendants against the order dated 13 January, 2015, passed by the Learned Single Judge a point was taken by the plaintiff that the rent control challans were not on record. The contention of the defendants was that they were only a technical defaulter and not a real defaulter, since deposit was being made with the Rent Controller. However, this could not be substantiated in the absence of the rent control challans, and that is why the order of remand was passed by the Hon'ble Division Bench on 9 March, 2015. Now that the challans are on record and this is not disputed by the plaintiffs, the defendants' application under Secs. 7(1) and (2) should be allowed and consequently, the plaintiff's application under Sec. 7(3) of the said Act should be rejected.
11. The default of the defendants is only technical. It would have been a separate matter, if the defendants had not deposited the rent at all. Since the learned Advocate of the defendants overlooked the 2005 amendment to the said Act, the rent was deposited before a wrong authority. Technical defaults should be condoned and the discretion of the court should be exercised in favour of the defendants, submitted learned Counsel. In this connection, he relied on the following decisions:-
(i) Miss Santosh Mehta vs. Om Parkash, MANU/SC/0476/1980 : AIR 1980 SC 1664.
(ii) M/s. B.P. Khemka Pvt. Ltd. vs. Birendra Kumar Bhowmick, MANU/SC/1015/1987 : AIR 1987 SC 1010.
(iii) Transfer Makers of India vs. Nemai Charan Mullick Alias Nemai Chand Mullick, MANU/WB/0115/2002 : (2002) 2 CLT 78 (HC).
(iv) Swapan Dutta vs. Ashim Kumar Dutta, MANU/WB/0681/2007 : (2007) 2 ILR (Cal) 271.
(v) Madhabi Mukherjee vs. Dipali Mitra, MANU/WB/1108/2012 : (2012) 4 CHN (Cal) 154.
12. Learned Counsel submitted that in the above referred cases there was no real default but only technical default. The default was by the Advocate. The defendants should not be made to suffer for the Advocate's default specially in cases of the present nature. In all the above referred cases, the Advocate's default was condoned.
13. Mr. Chowdhury then submitted that the remand order limits the scope of hearing of the present applications. The only point before this Court today is whether the defendants are able to produce the rent control challans to substantiate the grounds contained in the earlier order of the Ld. Single Judge dated 13 January, 2015. The scope of hearing is limited. The only question is whether or not rent was deposit regularly before the Rent Controller. The defendants have now brought on record copies of the rent challans. Hence, this point goes in favour of the defendants and their applications should be allowed.
14. As regards the decisions cited by learned Counsel for the plaintiff on strict compliance with the statutory provisions, learned Counsel for the defendants submitted that in none of the decisions it has been held that the Court does not have power to extend the time period for deposit of rent by the tenant. It is the discretion of the Court which has to be judicially exercised depending on the facts and circumstances of the case. In the present case, the defendants relied on their learned Advocate who was unaware of the 2005 amendment of the said Act. Hence, the rent instead of being deposited before the 'Civil Judge' was being deposited before the Rent Controller. For such technical default, the defence ought not to be struck out.
Court's View:-
15. I have considered the rival contentions of the parties.
16. The short point involved in these applications is whether or not the Court should condone the delay in filing the applications under Secs. 7(1) and (2) of the said Act and allow those applications. If the said applications are allowed, the plaintiff's application under Sec. 7(3) will necessarily fail. On the other hand, if the defendants' applications under Secs. 7(1) and (2) are rejected whether on merits or because of con-condonation of delay, then the application for striking out the defence should succeed.
17. Admittedly, the writ of summons was served on the defendants on 10 December, 2013. Accordingly, under Sec. 7(1) of the said Act the defendants were obliged to deposit the admitted arrear rent in Court within a month from that date. Further, in case of a dispute regarding the quantum of rent, the defendants were required to file an application under Sec. 7(2) of the said Act within a month from 10 December, 2013. Secs. 7(1), (2) and (3) of the said Act read as follows:-
"S. 7(1)(a) On a suit being instituted by the landlord for eviction on any of the grounds referred to in Section 6, 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 upto 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 order:
Provided that having regard to the circumstances of the case an extension of time may be granted by the Civil Judge only once and the period of such extension shall not exceed two months.
(3) If the tenant fails to deposit or pay any amount referred to in sub-section (1) or sub-section (2) within the time specified therein or within such extended time as may be granted, the Civil Judge shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit."
18. On 2 June, 2014, the plaintiff filed an application under Sec. 7(3) of the said Act for striking out the defence. On or about 8 September, 2014 the defendants filed applications under Secs. 7(1) and (2) supported by applications under Sec. 5 of the Limitation Act for condonation of delay of about 245 days in filing the applications under Secs. 7(1) and (2).
19. Mr. Sabyasachi Chowdhury, learned Counsel for the plaintiff vociferously argued that the explanation given by the defendants for the delay in filing their applications under Secs. 7(1) and (2) should not be accepted as the same is not credible or bona fide. The defendants contended that they were misguided by their learned Advocate and hence, they changed their Advocate. However, even thereafter, they engaged the same learned Advocate to represent their case in a litigation before the City Civil Court at Calcutta. Had they been really misguided by their learned Advocate, it is highly improbable that they would have engaged the same learned lawyer subsequently in another litigation. Hence, the story of being misguided by their learned lawyer has been concocted by the defendants. There is surely some logic in the argument of Mr. Chowdhury but the possibility of there being an element of truth in the case of the defendants cannot be ruled out. It is possible that the 2005 and 2006 amendments to the said Act escaped the notice of the defendants' learned lawyer, as a result of which the learned lawyer advised the defendants to deposit the rent with the Rent Controller even after institution of the suit, although, the rent should have been deposited in this Court subsequent to filing of this suit.
20. Mr. Sabyasachi Chowdhury relied on the Apex Court decision in the case of Mrs. Manju Choudhary vs. Dulal Kumar Chandra (supra) in support of his submission that there is a duty cast on the Court to strike out the defence if there is a failure of the tenant to deposit the arrears of rent within the time period prescribed by the relevant statute. In that case the prescribed time period was 15 days under the Bihar Building (LR & E.) Control Ordinance, 1982. Further in that case it was found that the plea advanced by the tenant for not depositing the rent within time was factually incorrect. Hence, the Apex Court refused to interfere with the order of the High Court striking out the defence of the tenant. Nowhere in the said decision the Apex Court held that the Court does not have the power to extend the time for depositing the arrear rent upon sufficient cause being shown by the tenant.
21. Mr. Sabyasachi Chowdhury also relied on the decision of a learned Single Judge of this Court in the case of M/s. Diopharma vs. Rabindra Nath Sadhukhan (supra). In that case the learned Judge found on facts that the defendant tenant adopted dilatory tactics and was guilty of deliberate inaction and negligence. Hence, the learned Judge refused to interfere with the learned Trial Court's order rejecting the defendants' applications for condonation of delay in filing the application under Secs. 7(1) and (2) of the said Act.
22. Mr. Sabyasachi Chowdhury then relied on the Apex Court decision in the case of Atma Ram vs. Shakuntala Rani (supra) in support of his submission that in Rent Control Legislations if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so he cannot take advantage of the benefit conferred by such a provision. Learned Counsel also relied on the Apex Court decision in the case of Nasiruddin vs. Sita Ram Agarwal (supra) in support of the same proposition.
23. Mr. Jishnu Chowdhury, learned Counsel for the defendants heavily relied on a decision of the Hon'ble Apex Court in the case of Miss Santosh Mehta vs. Om Prakash (supra) and in particular on paragraph 3 of the reported judgment which reads as follows:-
"3. We must adopt a socially informed perspective while construing the provisions and then it will be plain that the Controller is armed with a facultative power. He may, or not strike out the tenant's defence. A judicial discretion has built-in-self-restraint, has the scheme of the statute in mind, cannot ignore the conspectus of circumstances which are present in the case and has the brooding thought playing on the power that, in a court, striking out a party's defence is an exceptional step, not a routine visitation of a punitive extreme following upon a mere failure to pay rent. First of all, there must be a failure to pay rent which, in the context, indicates willful failure, deliberate default or volitional non-performance. Secondly, the Section provides no automatic weapon but prescribes a wise discretion, inscribes no mechanical consequence but invests a power to overcome intransigence. Thus, if a tenant fails or refuses to pay or deposit rent and the court discerns a mood of defiance or gross neglect, the tenant may forfeit his right to be heard in defence. The last resort cannot be converted into the first resort; a punitive direction of court cannot be used as a booby trap to get the tenant out. Once this teleological interpretation dawns, the mist of misconception about matter-of-course invocation of the power to strike out will vanish. Farewell to the realities of a given case is playing truant with the duty underlying the power."
24. He also relied on the Supreme Court decision in the case of M/s. B.P. Khemka Pvt. Ltd. vs. Birendra Kumar Bhowmick (supra). Paragraph 16 of the reported judgment reads as follows:-
"16. In this case the default was not one of non-payment of the arrears or the rent for the subsequent period. The default pertained to belated payments of rent for two months and was, therefore, a default in the technical sense than in the real sense and hence of an inconsequential nature. Having regard to the intendment of the Act and the nature of the provisions it can never be said that the defaults were of such a serious nature' as to warrant the court refusing to exercise its discretion and to feel constrained to strike out the defence. Such being the case the answer to the second question has also to be in favour of the appellant. The subordinate courts and the High Court were in error in holding that the delayed payment of rent for the months of September 1968 and March 1969 constituted such defaults as necessarily warranted the striking out of the defence under Section 17."
25. In the case of Transfer Makers of India vs. Nemai Charan Mullick (supra), a learned Judge of this Court held that the tenant/defendant had no responsibility for the alleged default in payment of arrear rent. He went on depositing the rent with his Advocate in good faith that the Advocate would do the needful. The tenant could not be penalized for the Advocate's default. Discretion should be exercised in favour of the tenant by condoning the delay and allowing him time and opportunity for making payment of the arrear rent. To the similar effect was the decision of this Court in the case of Swapan Dutta vs. Ashim Kumar Dutta (supra).
26. In Madhabi Mukherjee vs. Dipali Mitra (supra), the tenant went on depositing the rent regularly with the Rent Controller even after the 2005 and 2006 amendments to the said Act. Strictly speaking, the said deposits were invalid as the same were not made in conformity with the amended provisions of the said Act. For that reason, the Trial Court had struck out the tenant's defence under Sec. 7(3) of the said Act. The revisional application filed by the tenant was dismissed by this Court. On a review application, this Court held that the default which the tenant had committed was really a default in technical sense and not a default in real sense as it was a case of irregular deposit and not a case of non-deposit of rent. By following the decision of the Hon'ble Apex Court in the case of M/s. B.P. Khemka Pvt. Ltd. (supra), this Court held that striking out the defence of the tenant for such technical default was not justified. Accordingly, the review application was allowed and the order of the Learned Trial Court striking out the defence of the tenant was set aside.
27. I have already noted that although there is some logic in the argument of learned Counsel for the plaintiff against allowing the application for condonation of delay, the explanation furnished by the defendants cannot be ignored altogether as a cock and bull story. In any event, Courts are generally liberal in condoning the delay in instituting an action. It is a matter of discretion of the Court to be exercised judiciously depending on the facts and circumstances of a case. No strait-jacket formula can be laid down as regards the manner in which such discretion should be exercised. Ordinarily, unless the Court finds crass negligence or laches or inaction or mala fide on the part of a party instituting a lis, the Court exercises the discretion in favour of such party and condones the delay. After all, the Courts exist to do substantive justice between the parties.
28. The Hon'ble Division Bench had remanded back this matter to the First Court since the defendants could not produce before the Court copies of the rent control challans evidencing the deposit of rent by the defendants with the Rent Controller. Copies of such rent control challans have been brought on record by the defendants by filing supplementary affidavit. Authenticity of such challans has not been disputed by the plaintiff. Copies of the challans would show that the defendants had been depositing rent with the Rent Controller from February 2012 till December, 2014. This is not a case of non-deposit of rent but a case of deposit before the wrong forum. In the words of the learned Judge in the case of Madhabi Mukherjee (supra), this is a case of irregular deposit rather than non-deposit. The default of the tenant was technical rather than real. It is not that the defendants defied the statutory mandate altogether or adopted dilatory tactics to avoid deposit of rent as statutorily required. There is no intentional default or total non-compliance with the statutory prescription. It was an erroneous compliance with the statutory dictate. Accordingly, I am inclined to and hereby condone the delay in filing the applications under Secs. 7(1) and (2) of the said Act.
29. I am in complete agreement with the observation of my learned brother Judge, the Hon'ble Justice I. P. Mukerji as recorded in His Lordship's order dated 13 January, 2015 that the use of the power of the Court to strike out the defence of the defendants has drastic consequences. Such power is to be used as a last resort against a defiant tenant. Sec. 7(3) of the said Act vests this Court with discretion to extend the time period for paying or depositing the amounts referred to in Secs. 7(1) and (2). Thus, it is not that if there is non-payment or non-deposit of such amount by the tenant the Court has no option but to strike out the defence. The said Act is a beneficial legislation for protection of tenants and any discretionary power vested in the Court by the said statute should, wherever possible, be exercised in favour of the tenant. Since I have held that there is no deliberate default or real default on the part of the defendants in the present case, I allow the applications under Secs. 7(1) and (2) of the said Act. The defendants shall deposit in Court the entire amount of arrear rent calculated at the rate at which rent was last deposited by the defendants till date along with interest at the statutorily prescribed rate. However, having regard to the location of the suit premises which is located in a prime commercial hub of the city and having regard to the area of the suit premises and that the same is used for commercial purpose, I direct the defendants to pay rent to the plaintiff or deposit the same in Court month by month at the rate of Rs. 10,000/- per month starting with the month of October, 2017 till the disposal of the suit. This is an interim measure and shall in no way be taken as a measure of mesne profit to be ascertained at the final hearing of the suit. The plaintiff will be at liberty to withdraw the amount deposited by the defendants with the Rent Controller without prejudice to their rights and contentions in the suit.
30. In view of the aforesaid, the plaintiff's application under Sec. 7(3) of the said Act fails and is dismissed.
31. GA No. 1643 of 2014, GA No. 2907 of 2014, GA No. 2908 of 2014, GA No. 2909 of 2014 and GA No. 2910 of 2014 are accordingly disposed of. There will be no order as to costs.
32. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
© Manupatra Information Solutions Pvt. Ltd.