Calcutta High Court (Appellete Side)
(Daily Evening Hindi Newspaper) & Anr vs Shamayita Sen on 14 February, 2025
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Raja Basu Chowdhury
C.O. 1085 of 2024
M/s Chhapte Chhapte
(Daily Evening Hindi Newspaper) & Anr.
Versus
Shamayita Sen
For the Defendants/ : Ms. Anju Manot
petitioners
For the opposite party : Mr. Sounak Bhattacharya
Mr. Anirban Saha Roy
Mr. Sounak Mandal
Mr. Abhirup Haldar
Heard on : 14.02.2025.
Judgment on : 14th February, 2025.
Raja Basu Chowdhury, J.:
1. Challenging the order no.36 dated 13th February, 2024 passed by
the learned 3rd Bench, Presidency Small Causes Court at Calcutta
in Ejectment Suit no. 135 of 2020, whereby the application for
acceptance of rent for the month of September to November, 2023
was rejected by the learned Judge and consequentially holding that
the defence of the defendants against the delivery of possession in
the present suit be struck out in terms of the provisions of Section
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7(3) of the West Bengal Premises Tenancy Act, 1997 (hereinafter
referred to as the “said Act”), the instant revisional application has
been filed.
2. Records reveal that the plaintiff/opposite party has filed the instant
suit under the provisions of Section 6 of the said Act, inter alia,
praying for recovery of khas possession. It appears that the
defendants/petitioners had applied before the learned Court under
the provisions of Sections 7(1) and 7(2) of the said Act. By order
dated 24th March, 2022, the learned Court had allowed the petition
filed under Section 7(1) of the said Act thereby permitting the
defendants/petitioners to pay/deposit the arrears of rent from
January, 2011 to February, 2022 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 @10% per annum
within 30 days from the date of such order. The
defendants/petitioners were also granted liberty to pay/deposit
current monthly rent from March, 2022 month by month by 15 th of
each succeeding month. The said order would demonstrate that the
written statement filed by the defendants/petitioners was also
accepted. Subsequently, the application under Section 7(2) of the
said Act was disposed of by order dated 28th April, 2022, recording
that no rent is due and payable from the defendants till date.
Copies of the orders dated 24 th March, 2022 and 28 th April, 2022 as
placed before this Court by the parties are retained with the record.
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3. Subsequently, during the pendency of the above suit, the
petitioners had defaulted in payment of current rents thereby not
complying with the provisions of Section 7(1)(c) of the said Act. It is
the petitioners’ case that the learned advocate’s clerk was sick and
could not deposit rent for the months of September and October,
2023 before the learned Court. Accordingly, an application was filed
before the learned Court on 6th December, 2023, inter alia, praying
for a direction on the concerned department to accept the requisite
rent for the month of September to November, 2023 and to pass
order, as the Court deems fit and proper.
4. By order dated 13th February, 2024 such application was rejected.
5. Ms. Manot, learned advocate appearing in support of the instant
revisional application by drawing attention of this Court to the
provisions contained in Section 7(2) of the said Act and the proviso
thereof, submits that having regard to the proviso, there is no time
limit provided for complying with the provisions contained in
Section 7(1)(c) of the said Act. According to her, time to make
payment can be extended at the discretion of the Learned Judge. In
this context, she has placed reliance on an unreported judgment
delivered by a Coordinate Bench of this Court on 28 th June, 2024 in
the case of Tapan Kumar Santra v. Tarak Nath Paul in C.O.
1982 of 2022 for the proposition that the default committed by the
advocate’s clerk can be condoned by invoking the inherent power of
this Court. In support of her contention that the provision
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contained in Section 7 of the said Act is directory, she has placed
reliance on a judgment delivered by the Hon’ble Supreme Court in
the case of Ganesh Prasad Sah Kesari & Anr. v. Lakshmi
Narayan Gupta reported in AIR 1985 SC 964.
6. Per contra, Mr. Bhattacharya, learned advocate appearing on behalf
of the opposite party submits that in the instant case, admittedly an
order was passed under Section 7(1) of the said Act. Subsequently,
when the order under Section 7(2) of the said Act was passed, the
learned Court categorically recorded that there was no default. The
default committed by the opposite party was subsequent to passing
of the order under Section 7(2) of the said Act. Having regard
thereto, according to him the proviso to Section 7(2) of the said Act
cannot be made applicable.
7. Admittedly, in this case while passing the order under Sections 7(1)
and 7(2) of the said Act, the Court had extended the time limit to
make payment. According to him the Court has the power to extend
the time for making payment of arrear rentals which may have
fallen due only once. By placing reliance on a judgment delivered by
the Honb’le Division Bench of this Court in the case of Binika
Thapa (nee Rai) and another v. Damber Kumari Mukhia and
another with Passang Lama v. Shri Poonam Kumar Sharma
and another reported in 2023 SCC Online Cal 5478, he submits
that as to whether the Court is competent to invoke the provisions
of Section 5 of the Limitation Act for extending the time period for
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making payment of rent under Section 7(1)(c) of the said Act de
hors the provisions of Section 7(2) of the said Act, has already been
adjudicated by the Hon’ble Court in the above judgment. He
submits that Section 5 of the Limitation Act cannot be made
applicable in the instant case since there is no room for application
of Section 5 of the Limitation Act, having regard to the scheme of
the Act. As such the learned Court had rightly rejected the
application and struck off the defence of the defendants against the
delivery of possession. In the facts, no interference is called for.
8. Heard the learned advocates appearing for the respective parties
and considered the materials on record. It appears that the issue
that falls for consideration in the revisional application is whether
the provisions of Section 5 of the Limitation Act can be made
applicable in respect of payment of rent made in terms of Section
7(1)(c) of the said Act after an order under Section 7(2) of the said
Act has been passed. To morefully appreciate the provisions of
Section 7(1) and 7(2) of the said Act, the said provisions are
extracted hereinbelow: –
(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 upto the end of the month previous to
6that 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.
Section 7(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, 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 of 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.”
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9. From a perusal of the aforesaid provisions, it appears that Section
7(1)(c) provides that the tenant after complying with the provisions
of Section 7(1)(a) and 7(1)(b) shall continue to pay to the landlord or
deposit with the Civil Judge the admitted rent month by month by
the 15th of each succeeding month, a sum equivalent to the rent at
that rate at which it was last paid; while sub-section (2) of Section 7
provides that if there is any dispute as to the amount of rent
payable by the tenant, the tenant shall within the time specified in
Section 7(1) deposit with the Civil Judge the amount admitted by
him to be due from him together with an application for
determination of rent payable. The aforesaid sub-section curves out
an exception for making payment of arrears of rent only in case
there is any dispute as regards the amount of rent payable. The
said sub-section however makes it clear that no such deposit shall
be accepted unless it is accompanied by an application for
determination of rent payable. The said sub-section further reveals
that on receipt of the application, the learned Judge is obliged to
decide the rate at which the rent was last paid and the period of the
default, so as to enable the tenant to pay to the landlord the
amount so specified in the order within one month from the date of
such order.
10. The proviso to Section 7(2) only empowers the learned Judge to
extend the time to make payment of the aforesaid sum only once,
and the period of such extension shall not exceed two months.
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While sub-section (3) of Section 7 the said Act categorically provides
that if the tenant fails to deposit or pay any amount referred to in
sub-section (1) or sub-section (2) within the time specified or within
such extended time, the Civil Judge shall order the defence against
the delivery of possession to be struck out and shall proceed with
the hearing of the suit.
11. It is therefore clear from the above that the object behind Section 7
is to enable the tenant an opportunity to clear all arrear of rents by
making payment of current rent by condoning the default subject to
the limitation that the default is condonable only once.
12. Admittedly, in the instant case, the defendants/petitioners had
previously applied under Sections 7(1) and 7(2) of the said Act. The
learned Judge by order dated 24th March, 2022 while determining
the arrears of rent had permitted the defendants/petitioners to
pay/deposit the arrears of rent along with 10 per cent interest. The
defendants/petitioners claim to have complied with such direction.
Thereafter, the defendants/petitioners had proceeded to make
payment of rent on regular basis and having regard thereto, in my
view it cannot be said that the defendants/petitioners had
committed any default at least up to 28 th April, 2022 when the
learned Judge disposed of the application under Section 7(2) of the
said Act by recording that no rent is due and payable from the
defendants till that date. In the instant case, it is an admitted
position that default has been committed by the
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defendants/petitioners in complying with the provision of Section
7(1)(c) of the said Act for the months of September to November,
2023. The petitioners claim that the default had occasioned by
reasons of the advocate’s clerk’s sickness. Having regard thereto, it
is submitted that this Hon’ble Court is competent enough to extend
the time period for acceptance of rent for the period of default
committed and the Court by invoking Section 5 of Limitation Act
can condone the delay. In support of her aforesaid contention, Ms.
Manot has placed reliance on a judgement delivered by a
Coordinate Bench of this Court in the case of Tapan Kumar
Santra (supra). According to her, this Court by invoking its
inherent power can extend the time for the petitioners to make the
deposit.
13. To appreciate the aforesaid contention, it would be relevant to note
that on the question as to whether the provisions of Section 5 of the
Limitation Act can be made applicable to condone the delay in
acceptance of rent under the provision of Section 7(1)(c) of the said
Act, the matter was referred to the Hon’ble Division Bench,
constituted by the Hon’ble the Chief Justice in the case of Binika
Thapa (nee Rai) (supra). The points of reference are as follows :
“a) Whether the High Court, be it Single or Division Bench,
can take a decision which runs counter to the decision of
the Hon’ble Apex Court, which is binding on all Courts
including the High Court by virtue of Article 141 of the
Constitution of India.
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b) Whether the Single Bench can take a different view to
the view of the Hon’ble Apex Court, where it is clearly laid
down that the tenant cannot take recourse to Section 5 of
the Limitation Act in relation to the provision contained
under Sections 7(1) and 7(2) of the said Act, 1997.”
14. It is true that the Division Bench of this Court had considered the
above provisions and in paragraph 19 of the said judgment had
concluded that if for any reason the tenant failed to pay / deposit
rent month by month as laid down under clause (c) of Sub-Section
(1) of Section 7 of the said Act or as directed by the Court under
Sub-Section (2) of Section 7, the tenant could get further extension
of time for two months, to make such deposit. At the same time the
Hon’ble Division Bench has also noted that the provision of Section
40 of the said Act though makes the Limitation Act applicable, the
same is subject to other inbuilt period of limitation prescribed. The
Division Bench has thus observed that having regard to the ratio in
the judgment delivered in the case of Bijay Kumar Singh & Ors.
v. Amit Kumar Chamaria & Anr., reported in (2019) 10 SCC 660
the one month period as mentioned in Section 7(1)(b) is to be
treated as an inbuilt period of limitation making Section 40 of the
said Act inapplicable.
15. In the instant case, I find that the defendants/petitioners had
already been granted an opportunity to make payment of arrear
within the extended period, i.e. 30 days in terms of the order dated
24th March, 2022 whereby the default committed by the petitioners
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had already been condoned once. Having regard thereto, I find that
there is no scope or opportunity available to the petitioners to seek
any further extension for condoning further default. I do not find
any irregularity in the learned Judge rejecting the application of the
petitioners.
16. Inherent power can only be invoked when there is no specific
provision for extending the period for payment of rent, which fell in
arrear, however, having regard to the scheme of the said Act
provided in Section 7 thereof and the mandatory nature of Section
7(3) of the said Act, I am afraid that there is no scope to condone
even a minor delay committed by the advocate/advocate’s clerk in
complying with the provisions of the said Act. There is no scope
even to condone the advocate’s default.
17. It is also well settled that a Court cannot be persuaded to pass an
order on the basis of sympathy. The learned Judge after elaborately
discussing the matter has concluded that in the facts of the instant
case, there is no opportunity to extend any further time and
accordingly the application filed by the petitioners seeking for
extension had been rejected and the defence of the defendants
against the delivery of possession has been struck out. The
petitioners had not been able to identify any jurisdictional error
committed by the learned Judge. Hence, no case for interference is
called for. The revisional application fails and C.O. 1085 of 2024 is
accordingly dismissed without any order as to costs.
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18. All parties shall act on the basis of the server copy of this order duly
downloaded from this Court’s official website.
(Raja Basu Chowdhury, J.)
Saswata
A.R. (Court)