@JUDGMENTTAG-ORDER
Ishan Chandra Das, J. - Heard the learned Counsel for both the parties.
2. In the instant revisional application under Article 227 of the Constitution of India the propriety and/or legality of the Order no. 27 dated 18.06.2015 (in two parts) passed by the learned Judge, 3rd Bench, Presidency Small Causes Court, Calcutta in Ejectment Suit No. 519 of 2012 has been called in question.
3. The petitioner herein being the defendant/tenant of the Ejectment Suit No. 519 of 2012 filed an application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 on 01.04.2013 and that application was disposed of by the learned court below by order No. 7 dated 11.05.2013 wherein a direction was given to the tenant for making payment of a sum of Rs. 16,676/- towards arrears of rent for twenty months and statutory interest at the rate of 10% of that amount and the rate of rent was decided at the rate of Rs.758/- per month payable according to Hindi calendar, as it was reflected from the order No. 7 dated 11.5.2013.
4. The learned Counsel for the petitioner, in course of hearing, pointed out that the arrears of amount, to the tune of Rs. 16,676/-, have duly been paid and the challan showing deposit of such arrears of rent has been filed (annexure-P-4) but subsequently for the months of Ashwin, Kartick, Pous and Agrahayan of that year, the rent could not be paid in time due to the fact that the wife of the Advocate conducting the case on his behalf was ill and the learned Advocate was engaged for the treatment of his wife and he could not attend the court and for that reason he could not deposit the rent for the said months. For that reason, the application was filed on behalf of the tenant praying permission for making deposit which was allowed by the court below subject to payment of costs of Rs. 500/- along with statutory interest at the rate of 10% per annum.
5. Against the said order dated 01.04.2014, the landlord/opposite party herein, filed a revisional application before this Court being C.O. 1902 of 2014 which was disposed of by this Court with the observations as quoted below :
"The scheme of Section 7 of the 1997 Act is to give protection to a person who may not have been able to pay the rent. But once an order is made under Section 7(2) of the Act, the statute is strict and does not condone any default beyond what is permitted to be condoned under the provision.
It appears from the order impugned dated April 1,2014 that the trial court was swayed by the perceived sentiment with which the tenant had carried a petition for condonation of the delay, rather than abide by the strict letter of law that ought to have been adhered to. The order impugned cannot be sustained and is set aside. However, since the tenant is not represented, the tenant''s application on which the order impugned was passed is restored to the board of the trial court for fresh consideration in accordance with law within period of three months from date."
6. In compliance of the said order, the learned court below by order No. 27 dated 18.06.2015 rejected the prayer for regularising the omission in deposit of current monthly rent in Court and consequently allowed the application under Section 7(3) of the Act for con-compliance of the direction of the trial Court with regard to payment of current rent and the defence of the defendant against delivery of possession was struck out.
7. Assailing the said order, the present petitioner preferred this revisional application.
8. Now, the point for consideration whether the learned trial court was justified in rejecting the prayer of the petitioner herein by the order impugned (in two parts).
9. The learned Counsel for the petitioner, in course of hearing, submitted that the court has jurisdiction to extend the time for deposit or payment of rent and he was not justified in rejecting the prayer. Relying on the decision of the Special Bench of this Court in the case of Krishna Gopal Ghosal v. Mihir Baran Nandy and Ors., reported in 1987 (2) CLJ 297 he pointed out that for exercising the court''s power to condone delay or to extend time for delayed deposit or payment of rent, the court is bound to take into consideration the circumstances of each particular case.
10. Further relying on a decision of the Hon''ble Apex Court in the case of Ganesh Prasad Sah Kesari and Anr. v. Lakshmi Narayan Gupta, reported in (1985) 3 SCC 53 he also urged that the court has discretion to extend the period in suitable cases. Pointing out the finding of the Hon''ble Apex Court in the case of Ganesh Prasad Sah Kesari and Anr. (supra), he also submitted that "ordinarily the use of the word ''shall'' prima facie indicates that the provision is imperative in character. However, by a catena of decisions, it is well-settled that the court while considering whether the mere use of the word ''shall'' would make the provision imperative, it would ascertain the intendment of the legislature. If the use of the word ''shall'' makes the provision imperative, the inevitable consequences that flows from it is that the court would be powerless to grant any relief even where the justice of the case so demands".
11. Further relying on a decision of the Division Bench of this Court in the case of Devokinandan Boobna v. Harasundar Sarkar, reported in 1988 (1) CLJ 278, he categorically submitted that "permission to deposit arrears of rent in instalment that the court has power to give permission to deposit arrears of rent in instalment and whether one instalment of delayed payment has been made, the court has inherent power to condone such delay".
12. Further relying on a decision of the Hon''ble Apex Court in the case of H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior v. Union of India and Anr., reported in 1971(1) S.C.C. 85, he confidently submitted that "the court will interpret a statute, as far as possible, agreeable to justice and reason and that in case of two or more interpretations, one which is more reasonable and just will be adopted, for there is always a presumption against the law maker intending injustice and unreason".
13. In course of his argument, he relied on a decision of a specially constituted Bench of this Court in the case of Subrata Mukherjee v. Bisakha Das, reported in (2012) 1 Calcutta Law Times at page 1 and pointed out that Section 5 of the Limitation Act will be applicable for the purpose of making deposit of arrears rent as mentioned in sub-Section (1) of Section 7(2) of the Act.
14. Clarifying the decision of the Hon''ble Supreme Court in the case of J. Jermons v. Aliammal and Ors., reported in (1999) 7 SCC 382, he pointed out that the petitioner herein could not deposit rent under compulsion and in such a situation which was beyond his control and in the light of the decision of the Hon''ble Supreme Court in the case of J. Jermons v. Aliammal and Ors. (supra), he also pointed out that default due to ignorance, accident or compulsion or circumstances beyond the control of the tenant cannot be said to be ''wilful default''. He also opined that the court below was not justified in rejecting the prayer of the petitioner, rather he was not justified in allowing the application under Section 7(3) of the Act of 1997.
15. The learned Counsel for the opposite party, on the other hand, placed reliance on the decision of this Court in Bina Devi Benani v. Rajesh Kumar Gupta, reported in 2015(3) ICC 462 and submitted that the Civil Judge exercising jurisdiction under Section 7 of the 1997 Act does not have the jurisdiction to entertain any application for extension of time to deposit the amount adjudicated by the original order passed under subsection 7(2) after expiry of the period stipulated by the original order.
16. In this context he also relied on a decision of the Special Bench of this Court in the case of Subrata Mukherjee v. Bisakha Das (supra) and pointed out that the time limit fixed for payment to the landlord after adjudication of the dispute with regard to the rate of rent with the extended time limit, as mentioned in the proviso of sub-section (2), is inflexible. He further relied on a decision of the Hon''ble Apex Court in the case of Yusufbhai Noormohammed Jodhpurwala v. Mohmmed Sabir Ibrahim Byavarwala, reported in (2015) 6 SCC 526 [SLP(C) No. 735 of 2014] where it was held that provision with regard to payment of rent by the tenant has to be strictly complied with.
17. In the cases at hand, the petitioner herein being the defendant of the Ejectment suit, filed an application under Section 7 of the Act of 1997, applied for determination of arrears of rent which was paid by him as per direction of the court and continued to pay the same for some time but thereafter he could not pay, as per his claim, due to certain unavoidable circumstances, here the illness of the wife of the Advocate conducting the case on his behalf.
18. Frankly speaking, this Court as well as the Hon''ble Apex Court in a number of decisions held that the court has power to extend time by way of entertaining the application under Section 5 of the Limitation Act but the situation has completely changed after promulgation of the West Bengal Premises of Tenancy Act, 1997 which clearly mandates that once an order is made for payment of rent under Section 7(2) of the Act, the statute is strict and does not condone any default beyond what is permitted under the proviso to Section 7(2) of the Act, which is quoted below :
"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"
19. In the instant case, the petitioner admittedly defaulted in payment of rent and allowed the opposite party herein to accrue a right to be struck out the defence of the defendant against delivery of possession by operation of law.
20. That being the situation, I am unable to interfere with the order impugned.
21. Hence, relying on a decision of the Hon''ble Apex Court as reported in Yusufbhai Noormohammed Jodhpurwala v. Mohmmed Sabir Ibrahim Byavarwala (supra) coupled with the decision of the Special Bench of this Court in Subrata Mukherjee v. Bisakha Das (supra), I firmly conclude that the learned court below was justified in rejecting the prayer of the petitioner by the order impugned and I find no reason to interfere with the said order which stands affirmed accordingly.
22. In the result, the revisional application is dismissed, being devoid of any merit.
23. I make no order as to costs.
24. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.
