Calcutta High Court (Appellete Side)
Sri Indrajit Chakraborty vs Sri Tapan Paul on 20 August, 2025
Author: Hiranmay Bhattacharyya
Bench: Hiranmay Bhattacharyya
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Before:
The Hon'ble Justice Hiranmay Bhattacharyya
C.O. 2415 of 2025
Sri Indrajit Chakraborty
VS.
Sri Tapan Paul
With
CO 2227 of 2025
Sri Tapan Paul
Vs.
Sri Indrajit Chakraborty
For the Petitioners : Mr. Partha Pratim Roy
In CO 2415 of 2025 Mr. Ayanabha Raha
For the Opposite Party Mr. Pritam Choudhury
In CO 2227 of 2025
..... advocates
For the Opposite Party : Mr. Ivan Roy
In CO 2415 of 2025 ..... advocate
For the Opposite Party : Mr. Debangshu Bandhu
In CO 2415 of 2025
For the petitioner in
CO 2227 of 2025
...... advocate
Heard on : 13.08.2025
Judgment on : 20.08.2025
Hiranmay Bhattacharyya, J.:-
1.
The order being no. 46 dated April 22, 2025 passed by the learned Civil
Judge (Junior Division) 4th Court at Alipore, 24 Parganas (South) in Title
Suit No. 56 of 2018 is under challenge in these applications under Article
227 of the Constitution of India. C.O. 2415 of 2025 is at the instance of the
plaintiff and C.O. 2227 of 2025 is at the instance of the defendant.
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2. By the order impugned, the application under Section 7(2) of the West
Bengal Premises Tenancy Act was disposed of on contest by directing the
defendant to deposit the arrear rent together with interest by two easy
instalments in compliance with Section 7(2) of the West Bengal Premises
Tenancy Act, 1997 and the defendant was directed to deposit current rent
within the 15th of each succeeding month. The adjustment of the
adjudicated rate of rent with the renovation cost and salami was left open to
be adjudicated at the time of trial.
3. Since both the civil revision applications arise out of the selfsame order, the
same were heard analogously and are decided by this common order.
4. For the sake of convenience the parties are referred to according to their
rank in CO 2227 of 2025.
5. The opposite parties filed a suit for eviction inter alia on the grounds of
default and reasonable requirement against the petitioner.
6. The case made out in the plaint in a nutshell is as follows-
The predecessor-in-interest of the opposite parties namely Sunil
Chakraborty inducted the petitioner as a monthly tenant in respect of the
suit property by virtue of a tenancy agreement dated 01.12.2000. The rate of
rent at the inception of the tenancy was Rs. 1,200/- per month payable in
advance. In the agreement there was a stipulation regarding enhancement of
rent at the rate of 10% of the existing rent after expiry of 5 years. The
defendant paid partial rent at the rate of Rs. 500/-per month up to
February, 2016 and is a defaulter in payment of full rent since March, 2016.
7. Petitioner entered appearance in the said suit and filed applications under
Section 7(1) and 7(2) of the West Bengal Premises Tenancy Act, 1997 (for
short the “1997 Act”).
8. In the application under Section 7(1) of the 1997 Act, the petitioner stated
that he was inducted sometimes in the month of September, 1999 as a
tenant by Sunil Chakraborty and he used to pay rent of Rs. 500/- per
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month to the opposite parties and the opposite parties used to provide rent
receipt of Rs. 500/- per month and tendered rent by hand up to April, 2016.
It was further stated therein that the opposite party no. 1 refused to accept
rent for the month of May, 2016 and the petitioner sent the rent by Money
Order and thereafter, started depositing rent before the Rent Controller from
May, 2016 till March, 2018 and prayed for permission to deposit the rent at
the rate of Rs. 500/- per month from April, 2018 onwards month by month.
9. In the application under Section 7(2) of the 1997 Act, the petitioner has
stated that the opposite party no. 1 used to issue rent receipt of Rs. 500/-
per month against payment of rent of Rs. 1200/-. The petitioner has
disputed the rate of rent as well as the landlord-tenant relationship between
the parties. Petitioner claims to have paid a huge amount of Rs. 4,50,000/-
to Sunil Chakraborty as salami and with the consent of the landlord
renovated the suit premises at his own cost of Rs. 2,50,000/- and the
petitioner claimed adjustment of the aforesaid amounts from the monthly
rent. Petitioner prayed for determination of the rate of rent and the landlord-
tenant relationship between the parties.
10. The learned advocate for the petitioner contended that the rate of rent is
Rs. 500/- per month and the petitioner continuously deposited rent at the
said rate before the Rent Controller. He contended that the learned Trial
Judge held the petitioner to be a defaulter in payment of rent without
appreciating that the petitioner is entitled to adjustment of the amount paid
by the petitioner as salami and the cost incurred for renovation of the suit
property to make it a habitable one.
11. Mr. Roy, learned advocate for the opposite party seriously disputed the
submission made by the learned advocate for the petitioner. He contended
that the petitioner failed to deposit the rent for the month of April, 2016,
which he admitted to be due from him, along with the application under
Section 7(2) of the 1997 Act.
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12. Mr. Roy contended that the application under Section 7(2) is liable to be
dismissed on account of failure to deposit the admitted arrears of rent and
consequently the defence of the petitioner is liable to be struck off. Mr. Roy
further contended that the petitioner admitted that the rate of rent is Rs.
1200/- per month but he paid only Rs. 500/- before the Rent Controller on
and from May 2016 and, therefore, the petitioner ought to have deposited
the balance amount at the rate of Rs. 700/- per month along with the
application under Section 7(2). Mr. Roy placed reliance upon the decision in
the case of Remington Rand vs. Sohanlal Rajgharia reported at 87 CWN
922 in support of his contention that while deciding the dispute under
Section 7(2), Court has to determine the rate of rent which is the contractual
rent and not the fair rent. Mr. Roy submitted that the petitioner is not
entitled to any adjustment of the amount alleged to have been paid as
salami and on account of expenses incurred for renovation of the suit
premises as there was no agreement between the parties with regard to such
adjustment.
13. Heard the learned advocates for the parties and perused the materials
placed.
14. The opposite party filed a suit for eviction on the grounds enumerated under
Section 6 of the West Bengal Premises Tenancy Act, 1997. The opposite
party claims that as per the tenancy agreement dated 01.12.2000, the rate
of rent was fixed at Rs. 1200/- per month. The agreement provides for
enhancement of 10% of the existing rent after expiry of every 5 years.
15. Indrajit Chakraborty i.e., the plaintiff no. 1 adduced evidence as OPW-1.
OPW-1 during his cross examination admitted that his father during his
lifetime used to issue rent receipt of Rs. 500/- per month in respect of the
suit property. He also admitted to have issued rent receipt of Rs. 500/- per
month to the petitioner after the demise of his father. OPW-1 further
admitted during cross-examination that he did not claim from the petitioner
that the monthly rent would increase by 10% in every 5 years.
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16. Tapan Paul, i.e., the defendant deposed as PW-1. PW-1 stated in his
evidence that he used to pay Rs. 1200/- per month as monthly rent to Sunil
Chakraborty but he used to issue rent receipt of Rs. 500/- only per month.
However, the petitioner did not take any steps against the landlord for
issuing rent receipt for an amount much less than the amount alleged to
have been paid by the petitioner.
17. Though the petitioner alleged that he paid rent at the rate of Rs. 1200/- per
month, but could not prove such fact by way of evidence either oral or
documentary.
18. In the absence of any other acceptable evidence apart from the rent receipt,
this Court holds that the rate at which rent was last paid is Rs. 500/- per
month.
19. Petitioner claims to have deposited rent from March 2016 before the Rent
Controller at the rate of Rs. 500/- per month.
20. Section 21 of the 1997 Act, deals with deposit of rent by the tenant with the
Controller where the landlord does not accept the rent tendered by the
tenant. Section 21(5) lays down that the tenant shall also produce for
scrutiny by the Controller the last rent receipt. It is not in dispute that the
last rent receipt issued by the landlord was for Rs. 500/-. The petitioner
deposited rent with the office of the Rent Controller at the rate of Rs. 500/-.
21. The learned trial judge proceeded to adjudicate the arrears of rent by
accepting the initial rate of rent to be Rs. 1200/- per month as per the
tenancy agreement with enhancement by 10% every 5 years.
22. At this stage it would be profitable to take note of the provisions of Section
7(1) and 7(2) of the 1997 Act, for which the same are extracted hereinafter.
“S.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
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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.”
23. Section 7(1) (a) casts an obligation upon the tenant to pay to the landlord or
deposit with the Civil Judge all arrears of rent, calculated at the rate at
which it was last paid up to the end of the month previous to that in which
the payment is made together with interest.
24. Section 7(1) (c) mandates that the tenant shall thereafter continue to pay to
the landlord or deposit with the Civil Judge within the time limit specified
therein, a sum equivalent to the rent at that rate.
25. To the mind of this Court the expression “a sum equivalent to the rent at
that rate” used in Section 7(1) (a) refers to the rate at which rent was last
paid.
26. Section 7(2) of the 1997 Act states that on receipt of the application the Civil
Judge shall, having regard to the rate at which rent was last paid and the
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period for which default may have been made by the tenant, make an order
specifying the amount, if any, due from the tenant.
27. Upon reading the provisions of Section 7(2) of the 1997 Act, this Court holds
that while passing an order specifying the amount, if any, due from the
tenant; the Civil Judge has to take into consideration the rate at which rent
was last paid.
28. In view of the aforesaid discussion, this Court is of the considered view that
in order to get the benefit of protection against eviction, a tenant against
whom a suit under Section 6 of the 1997 Act has been instituted has to pay
to the landlord or deposit with the Civil Judge all arrears of rent as per the
provisions of Section 7(1)(a) or Section 7(2), as the case may be, as well as
current rent, all calculated at the rate at which rent was last paid.
29. To the mind of this Court, the learned trial judge failed to appreciate the
provisions of Section 7(1) and 7(2) of the 1997 Act while calculating the
arrears of rent to be deposited by the petitioner.
30. Mr. Ray would strenuously contend that the application under Section 7(2)
of the 1997 Act was liable to be rejected for not depositing the admitted
arrears of rent for the month of April 2016.
31. Section 7(2) of the 1997 Act mandates deposit of the amount admitted by
the tenant to be due from him with the Civil Judge along with the
application for determination of the rent payable in case of a dispute as to
the amount of rent payable by the tenant.
32. In the application under Section 7(1) of the 1997 Act, petitioner claimed that
he tendered rent by hand up to April 2016 against the issuance of rent
receipt. From the application under Section 7(2), it does not appear that the
petitioner has admitted that rent for the month of April 2016 is due from the
petitioner to the opposite party.
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33. Therefore, this Court is not inclined to accept the contention of Mr. Roy that
the application under Section 7(2) was liable to be rejected on the ground of
failure to deposit the rent for the month of April, 2016.
34. However, if upon adjudication, it is found that the rent for the month of
April 2016 or for any other month(s) are due from the petitioner, the
petitioner should be directed to deposit the amount due from the petitioner
to the opposite party.
35. Record reveals that the respective parties have also adduced evidence with
regard to their respective contentions on the issue of adjustment of the
renovation cost and salami. Such issue was, however, left open for
adjudication at the time of trial.
36. When the parties led evidence on the issue of adjustment of the aforesaid
amounts with the rent, the learned trial judge ought to have decided such
issue while deciding the application under Section 7(2) of the 1997 Act,
instead of leaving such issue open for adjudication at the time of trial.
37. In course of argument, Mr. Roy, submitted that the decision in the case of
Dhananjay Das vs. Mrinal Kanti Ghosh & others reported at 2024 SCC
Online Cal 1927 cannot come to the aid of the petitioner as the facts of the
said case is distinguishable.
38. This Court, however, refrains from making any observation with regard to
the applicability or otherwise of the decision in the case of Dhananjay Das
(supra) to the facts of this case as the learned trial judge has not decided
the issue of adjustment of the aforesaid amounts.
39. There is, however, no quarrel to the proposition of law laid down in
Remington Rand (supra) that under Section 17(2) of the 1956 Act, the
Court is not required to determine the fair rent. The said decision is not an
authority for the proposition that if the rate at which the rent was last paid
is lower than the contractual rate, the contractual rate of rent should be
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taken into consideration while passing an order under Section 7(2) of the
1997 Act.
40. The decision of the Hon’ble Supreme Court in the case of Puspa Sen Gupta
vs. Susma Ghosh reported at (1990) 2 SCC 651 where it was held that rent
includes payment in respect of the amenities or services provided by the
landlord under the terms of tenancy cannot come to the aid of the opposite
party as such an issue did not arise for consideration in these civil revision
applications.
41. For all the reasons as aforesaid, this Court is inclined to interfere with the
order impugned. Accordingly, the order impugned is set aside and the
learned trial judge is directed to decide the application under Section 7(2) of
the 1997 Act afresh on the basis of the materials already available on record
and in the light of the observations made hereinbefore after giving
opportunity of hearing to the respective parties and dispose of the same by
passing a reasoned order as expeditiously as possible but preferably within
a period of eight working weeks from the date of receipt of a server copy of
this order.
42. C.O. No. 2415 and 2025 and C.O. 2227 of 2025 stand disposed of with the
aforesaid observations and directions.
43. Urgent photostat certified copies, if applied for, be supplied to the parties
upon compliance of all formalities.
(HIRANMAY BHATTACHARYYA, J.)
(P.A.-Sanchita)
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