Ashok Kumar Bhagnani Vs. Mansur Ahmed and Ors. - (High Court of Calcutta) (21 Sep 2017)

Tenant could not be penalized for the Advocate's default

MANU/WB/0749/2017

Tenancy

The Plaintiff filed the present suit on 22nd 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 10th December, 2013. In view of the Defendants failing to comply with the provisions of Sections 7(1) and (2) of the West Bengal Premises Tenancy Act, 1997, the Plaintiff on 2 June, 2014 filed an application under Section 7(3) of the said Act for striking out the defence of the Defendants.

The Defendants filed an affidavit in opposition to the Section 7(3) application wherein it was contended that, they were not obliged to file any application under Sections 7(1) and (2) of the said Act because the suit has been filed before the 'Civil Judge'. During the hearing of the said Section 7(3) application, the Defendants served on the Plaintiff's learned Advocate copies of the applications under Sections 7(1) and (2) of the said Act along with two applications under Section 5 of the Limitation Act. In the said applications for condonation of delay of about 272 days, Defendants contended that, the delay in filing the applications under Sections 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. By a common order, Court allowed the applications of the Defendants under Sections 7(1) and (2) of the said Act. The Plaintiff preferred an appeal against the said order. The Appeal Court set aside the said order and remanded back the matter to the First Court for fresh consideration. The short point involved in instant applications is whether or not the Court should condone the delay in filing the applications under Sections 7(1) and (2) of the said Act and allow those applications.

Admittedly, the writ of summons was served on the Defendants on 10 December, 2013. Accordingly, under Section 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 Section 7(2) of the said Act within a month from 10 December, 2013.

In the case of Transfer Makers of India vs. Nemai Charan Mullick, 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.

In Madhabi Mukherjee vs. Dipali Mitra, the tenant went on depositing the rent regularly with the Rent Controller even after the 2005 and 2006 amendments to the said Act. 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 Section 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 Apex Court in the case of M/s. B.P. Khemka Pvt. Ltd., 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.

Court 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 gross 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.

The Hon'ble Division Bench had remanded back present 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. 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, delay in filing the applications under Sections 7(1) and (2) of the said Act, condoned.

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. Section 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 Sections 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, it is held that, there is no deliberate default or real default on the part of the defendants in the present case, applications under Sections 7(1) and (2) of the said Act are allowed. 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.

Relevant : B.P. Khemka Pvt. Ltd. vs. Birendra Kumar Bhowmick and Anr. MANU/SC/0783/1987; Transfer Makers of India vs. Nemai Charan Mullick alias Nemai Chand Mullick MANU/WB/0115/2002; Madhabi Mukherjee vs. Dipali Mitra MANU/WB/1108/2012

Tags : DELAY CONDONATION LEGALITY