Indrajit Chatterjee, J. - This is an application under Article 227 of the Constitution of India wherein the present petitioner/tenant has assailed
before this Court the order dated 13-01-2015 passed by the learned 2nd Court of Civil Judge (Junior Division) at Alipore in Ejectment Suit
No.82 OF 2000 wherein the learned Trial Court was pleased to allow the application under Section 7(2) of the West Bengal Premises Tenancy
Act, 1977 (hereinafter called as the said Act) and directed the tenant to deposit in total Rs. 2,56,530/- being the arrear rent since December, 2002
to December, 2014 at the rate of Rs. 1100/- per month along with statutory interest. The learned Trial Court held that the defendant was a
defaulter in payment of monthly rent in respect of the suit property and as such, such arrear rent is to be paid in two equal instalments. The first
instalment shall be paid by 13-02-2015 and the second instalment shall be paid by 14-03-2015. Liberty was also given to the defendant to
withdraw the deposited rent from the Rent Controller''s Office.
2. The suit was filed by landlord plaintiff for eviction of the tenant on the ground of default, reasonable requirement and nuisance against the
defendant tenant.
3. Mr. Bhattacharyya, learned Advocate appearing on behalf of the petitioner/tenant argued that there was no default regarding payment of rent,
that the rent is admitted, that the rent was deposited to the Rent Controller before the suit and after the suit the present petitioner deposited rent to
the Rent Controller upto September, 2015 and thereafter before the learned Trial Court from October, 2015, in the name of the landlord/ opposite
party. He further submitted that the present suit for eviction was filed on 26-09-2012.
4. Learned Advocate referred to a Full Bench decision of this Court as reported in AIR 1982 Cal 267 (Sudhir Chandra Ghosh v. Sachindra
Nath Ghosh) wherein this Court decided, by virtue of Section 17(2A) of the old Act of 1956, to extend the time limit to deposit the arrear rent
even after a long gap.
In counter to all these, it is submitted by Mr. Sengupta, learned Advocate appearing on behalf of the opposite party that the present
defendant/tenant had prior knowledge as regards partition between the two brothers, namely, the present opposite party and Sushil Choudhury
since 2004 as this petitioner being the plaintiff no.3 of Title Suit No. 31 of 2004 filed before the learned Civil Judge (Junior Division), 2nd Court at
Alipore, affirmed one affidavit on behalf of the other plaintiffs.
5. In that suit, Sushil Choudhury appeared by filing a written statement on 20th May, 2005 wherein in paragraph no. 26, he candidly stated that he
being the defendant no.2 had no interest over the suit premises in view of one family arrangement between him and the present opposite party.
6. Learned Advocate took me to the notice given by the present opposite party to the tenant which is in running page 15 of the compilation
supplied by the opposite party. He also took me to the reply to the said notice which is in running page 19 of that compilation wherein the present
petitioner/tenant duly admitted the tenancy under the opposite party as per reply dated 24th May, 2012.
He further submitted that no payment has been made in compliance with Section 7(1) of the said Act and frankly submitted that this point was
argued before the learned Trial Court but was not answered by it. On my asking, he submitted that no revisional application has been filed on that
score.
7. He further submitted that deposits made prior to the suit to the Rent Controller are all bad deposits as some of those were paid not in time and
in some names of the tenderer and tenderee were tampered.
8. Regarding the Full Bench decision of this Court as passed in Sudhir Chandra Ghosh (supra), Mr. Sengupta submitted that the aforesaid decision
will not apply in the present facts and circumstances of this case and that liberty was given to the tenant under the discretion granted under Section
17(2A) of the Act of 1956.
He further submitted that as per the old Act, the Court had such discretion to take that liberal approach but now in view of Section 7(2) of the said
Act, the discretion of the Court has been minimised only for two months.
9. Thus, it is the admitted position that after the filing of the suit on 26-09-2012, the present petitioner did not pay any rent in compliance with the
provision of Section 7(1) of the said Act. I cannot resists my lips to cite here the Single Bench decisions of this Court as reported in 78 CWN 579
(Kazi Abdul Hossain v. Fazlur Rahaman & Ors.) and 1977 (2) CLJ 594 (Saharshibala Roy Chowdhury v. M/s Jewan Ram
Sheoduttaraj). This Court cannot be also unmindful of the decision of this Court as passed in C.O. No. 1941 of 2013 (Amit Kumar Chamaria
& Anr. v. Ram Brich Singh), one unreported decision delivered by myself.
10. In the decision of Kazi Abdul Hossain (supra) the court categorically held that as the defendant did not deposit the admitted rent within time
along with the application under Section 7(2) of the Act of 1956 as required under the law, the learned Trial Court was right to reject the petition
of the defendant.
11. In the decision of Sarashibala Roy Chowdhury (supra) the Hon''ble Single Judge held the defendants having failed to deposit the amount of
rent in arrear and did not comply with the Section 17(1) cannot get any relief under Section 17(2) of the Act of 1956.
12. I have taken into consideration the point raised by Mr. Sengupta, taken into consideration the compilation of the documents as submitted by
Mr. Sengupta before this Court and I have also taken into consideration the filing of the Title Suit No. 31 of 2004 by the present opposite party
no.3 along with some others. This Court is also satisfied that some the challans were interpolated and in those challans, it was specifically
mentioned that cheque was to be issued in favour of Lok Nath Choudhury.
13. It is the admitted position that after the filing of the suit on 26-09-2012, the petitioner did not come up to pay rent to the landlord or to deposit
the rent before the court as stipulated under Section 7(1) of the said Act but deposited in before the Rent Controller till September, 2015 and as
such, there is clear violation of 7(1) of the said Act. Learned Trial Court did not take into consideration such blatant violation of that provision of
Section 7(1) of the said Act while disposing of Section 7(2) application.
14. The learned Court vide the order impugned held that the defendant was well aware of the fact that due to family arrangement the plaintiff
became the sole owner of the entire third floor of the suit property, that relationship of landlord and tenant has been established and further that the
defendant was well aware of this prior to the institution of the suit. The court found that the tenant was a defaulter for 145 months and calculated
the amount to be Rs. 2,56,530 and directed the defendant to pay the amount in two instalments.
15. The learned trial court did not take into consideration that the tenant did not comply with the mandatory provision of Section 7(1) of the said
Act of 1997. It is true that no revisional application has been filed by the landlord on that score, but this court of revision cannot shut its eyes to this
blatant violation of the mandatory provision of Section 7(1) confirmed by this court in three Single Bench decisions referred to above.
16. Let me quote Section 7(1)(a) and 7(1)(b) of the said Act.
17. Section 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 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.
1(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.
18. The rent and landlord tenant relationship being admitted the tenant ought to have complied with the mandatory provisions. This court like the
trial court is satisfied that the change of ownership was known to the petitioner tenant at least in the year 2005. The suit was filed on 26.09.2012
and the petitioner started depositing rent to the court since October, 2015. The deposits made to the Rent Controller after filing of the suit are all
invalid deposits and it cannot be said that such payment was made bona fide.
19. It is needless to say that unless there is compliance of Section 7(1) of the Act there cannot be any petition under Section 7(2) of the said Act.
Section 7(1) and 7(2) of the present Act are almost similar to Sections 17(1) and Section 17 (2) of the Act of 1956. But there is a difference that
Section 7(2) of the Act is friendly to the landlord to a certain extent. On scrutiny of the impugned order, the documents, the argument put forward
by the parties and the legal position as stated above this court is satisfied that there was no element in the petition under Section 7(2) of the Act to
allow the application.
20. Some of the deposits made to the Rent Controller are bad deposits. I reiterate that when no rent was paid either to the landlord or to the court
in compliance with Section 7(1) of the Act the deposits made to the Rent Controller after the filing of the suit are bad deposits. This court is at one
with the learned trial court the defendant could not prove that acceptance of rent was refused by the landlord and as such he took steps to deposit
the rent to the Rent Controller.
21. To this extent and the observations made above this court is satisfied with the findings of the learned trial court. But the learned trial court erred
in allowing the application under Section 7(2) of the Act of 1997 because of non-compliance of Section 7(1) of the Act.
There was no reason in the eye of law to allow the defendant to make payment by allowing the application under Section 7(2) of the said Act.
Thus, this court affirms the order of the learned trial court that the defendant was a defaulter, that the relationship of landlord and tenant was
established, that the family arrangement of the plaintiff was known to the petitioner/tenant and that the rent in question was not in dispute. This court
differs with the finding of the learned trial court that the application under Section 7(2) of the Act was fit to be allowed. This court also differs with
the learned trial court that the petitioner tenant was entitled to get two instalments to repay the rent in due. I reiterate that the learned trial court did
not consider the mandatory provision of Section 7(1) of the Act.
22. Thus, in view of the observation made above this revision application is disposed of on contest. The order as regards payment of dues by the
tenant to the landlord as passed by the learned trial court under Section 7(2) of the Act is hereby set aside and so also regarding the instalments.
Office is directed to communicate this order to the learned Trial Court at once.
Let a certified copy of this order, if applied for, be given to the learned advocates of the parties on the usual undertaking.
Urgent xerox certified copy of this order, if applied for, be given to the learned advocates of the parties on the usual undertaking. This suit is
pending since 2012 and as such the learned trial court is directed to dispose of the suit as early as possible without granting unnecessary
adjournments.