Subhasis Dasgupta, J
The impugned order dated 11th September, 2018 passed by learned Civil Judge (Junior Division), 1st Court, Barasat, rejecting the application under
Section 7(1) and 7(2) of West Bengal Premises Tenancy Act, 1997, is the subject of challenge in this revisional application.
Learned court below rejected the application under Section 7(1) and 7(2) of West Bengal Premises Tenancy Act, 1997 on the ground that
petitioner/defendant admittedly caused delay of ten months in filing such applications, which were not even supported by any application under Section
5 of the Limitation Act with a prayer for condonation of delay, and as such there was infraction of law so far as compliance of statutory procedure is
concerned.
Admittedly, in a suit instituted in the year 2014, the tenant/defendant/petitioner entered his appearance in the suit by furnishing vakalatnama on
09.02.2016. Subsequently, on 14.12.2016, the petitioner/defendant/petitioner furnished his written statement along with application under Section 7(1)
and 7(2) of West Bengal Premises Tenancy Act, 1997.
In order to perfectly understand the matter in issue in connection with application under Section 7(1) and 7(2) of the Act, some of the salient facts
may be mentioned as hereunder.
The petitioner was inducted tenant in respect of one shop room by the erstwhile landlord, Pritosh Pal at the rent of Rs.200/- per month, payable
according to English calendar month. Subsequently, the rent was enhanced to Rs.352/- per month. For the refusal to receive the rent tendered by the
tenant/petitioner, a proceeding under Section 21(1) and (2) of West Bengal Premises Tenancy Act was intiated before the Rent Controller, Barasat,
which was registered as RC Case No. 14 of 2005. The erstwhile tenant being the father of the opposite party No.1 and husband of opposite party No.
2, challenged the maintainability of such proceeding before Rent Controller denying the relationship of petitioner/tenant. The opposite party No.1 being
son of the erstwhile tenant, solicited intervention of the High Court in connection with pending case before the Rent Controller in connection with
C.O.No.233 of 2006, when the High Court granted stay of proceedings of the Rent Controller on 28th August, 2006. The erstwhile tenant admittedly
left this world in the year 2011.
In view of the ad interim order of stay being granted by High Court in connection with C.O. No.233 of 2006, the petitioner was confused for the ill-
advice of his conducting learned advocate and quite rendered himself unable to deposit rent. The case of the petitioner is that after the demise of
erstwhile tenant, no notice was issued upon the petitioner providing sufficient opportunity to deposit the rent in the name of the persons, who actually
inherited the suit building, being legal heirs of the erstwhile tenant, Paritosh Pal. Suddenly, petitioner/defendant received a notice from the court of the
learned Civil Judge, (Junior Division), 1st Court, Barasat furnishing sufficient information about the institution of a suit against him in connection with
T.S. No.667 of 2013, with a direction requiring the petitioner to ensure his appearance on 13th March, 2014. It was the further case of petitioner that
being ill-advised by the conducting learned advocate requiring the petitioner not to do anything, because of the stay order being granted by the High
Court, no step could be taken admittedly by the petitioner for depositing rent as well as for adjudication of the dispute between the parties. Since,
petitioner is a poor man having no legal background, blindly followed the instruction, given by his conducting learned advocate. Somehow, the petitioner
came to learn that the pending suit in connection with T.S. No. 667 of 2013 had been posted for ex-parte hearing by order dated 14th December,
2016. The petitioner, thereafter, got his previous learned advocate changed obtaining no objection and filed a fresh vakalatnama, appointing a new
learned advocate and, thereafter, filed his written statement as well as instant application under Section 7(1) and 7(2) of the West Bengal Premises
Tenancy Act,1997 for challenging the prayer for eviction, with a prayer allowing him to deposit the rent, both arrears and current, after necessary
adjudication of the dispute pertaining to relationship and rate of rent.
1. Learned advocate for the petitioner submitted that failure to deposit arrears of rent followed by monthly deposit of rent in terms of the provisions of
Section 7(1) of West Bengal Premises Tenancy Act, 1997, was not at all deliberate default or willful failure being consciously contributed to volitional
non-performance, and as such the rent legislation being intended for the benefits of the tenants, the learned court below ought to have allowed the
application under Section 7(1) and 7(2) of the Act.
2. Learned advocate for the petitioner further submitted that in course of hearing of application under Section 7(1) and 7(2) of the West Bengal
Premises Tenancy Act, 1997 on the scheduled date, explanation of the delay was verbally given which, however, could not be taken care of by the
learned court below causing a great prejudice to the petitioner/tenant, requiring intervention by this court.
3. Learned advocate for the petitioner further submitted that a tenant could not be penalized for the ill-advice of learned conducting advocate, and
discretion should be exercised in favour of the tenant/petitioner, condoning the delay after allowing him time and opportunity to make payment of
arrears of rent coupled with monthly rent as per provisions of Section 7(1) and 7(2) of the Act.
Learned advocate fore the plaintiff/petitioner refuting the submission, made by the petitioner/tenant, submitted that there had been admittedly delay of
ten months in filing application under Section 7(1) and 7(2) of the West Bengal Premises Tenancy Act,1997, and such applications not being supported
by any application of Section 5 of Limitation Act, the learned court below rightly rejected the applications after exercising discretion in accordance
with law.
Learned advocate fore the opposite party further submitted that the benefits extended by the rent legislation could be enjoyed by the tenant only under
strict compliance of the statutory procedure in appropriate cases when there was no failure in adhering to strict statutory procedure.
It was thus proposed by the opposite party/landlord that when the obligation, due to be discharged by the tenant in application of the provision of 7(1)
of the Act, admittedly could not be discharged by depositing arrears of rent in court within a month from the service of summons or within a month
from the date of making appearance in the court, without the summons being served upon the tenant, the discretion sought to be exercised could not
be lawfully made.
The seminal point to be addressed by this court is whether the order impugned is sustainable or not.
Admittedly, in a suit instituted in the year 2014, the petitioner/tenant entered his appearance by furnishing vakalatnama on 09.02.2016 and subsequently
the written statement was submitted on 14.12.2016 along with application under Section 7(1) and 7(2) of the West Bengal Premises Tenancy Act,
1997. There was admittedly delay of ten months in filing such applications and that too without being supported by any application under Section 5 of
the Limitation Act, praying for condonation of delay. It is no longer a res integra that a tenant while seeking protection under the rent legislation must
strictly adhere to the procedure mentioned in the Rent Legislation. Though, petitioner/defendant/plaintiff entered his appearance in the court below on
09.02.2016, but he admittedly failed to file any application under Section 7(1) and 7(2) of the Act, within one month of receiving the writ of summons,
or within one month of date of entering appearance in the event if no summons being served. Without any controversy, it is the settle proposition of
law that the tenant has to follow the procedure as prescribed in the statute. A strict compliance with the statute is necessary.
While ascertaining the statutory obligation to be performed by tenant/petitioner in order to have protection as per rent legislation, the court must not be
oblivious to find out if failure to make adherence to statutory procedure was consequential to defiance or gross neglect on the part of the tenant or not.
Thus, if a tenant fails or refuses to pay or deposits rent, to be discernible from the acts and conducts of the tenant, sufficient enough so as to be
indicative of revealing a mood of defiance or gross neglect of tenant, in such case, undoubtedly the tenant would forfeit his right to be protected any
more. This is a case where tenant/petitioner admittedly failed to deposit arrears of rent coupled with monthly rent after being ill-advised by his
conducting learned advocate requiring the petitioner not to take any step for depositing the rent payable to the landlord, for a stay order being granted
by the High Court in connection with C.O. No. 233 of 2006. The petitioner/tenant did everything, supportive of his purpose, after discovering the case
to have been posted for ex-parte hearing, when tenant/petitioner proceeded to challenge the eviction suit by filing written statement on 14.12.2016,
along with an application under Section 7(1) and 7(2) of West Bengal Premises Tenancy Act, 1997. The petitioner had to obtain no objection from his
previous conducting learned advocate and then furnished the vakalatnama admittedly on 09.02.2016, appointing a new learned advocate to present the
case of the petitioner before the court.
An element of truth as regards ill-advice to have been given by the learned previous conducting advocate detrimental to the interest of
petitioner/tenant is thus conspicuously noticeable with the appointment of new learned advocate after obtaining no objection from the previous one. In
the given set of facts, the petitioner/defendant/tenant should not be made to suffer for the advocate’s default, specially in cases of the present
nature, if necessary by exercising the discretion favourable to the purpose of petitioner/tenant, upon saddling a huge amount of compensatory costs for
the purpose.
The settled proposition of law is that the court deciding the application under Section 7(1) and 7(2) of the Act has sufficient power to extend the time
for depositing the arrears of rent upon sufficient causes being shown by the tenant in appropriate cases.
The admitted case of the petitioner/tenant is that rent was last paid in the month of February, 2005, and in March, 2005 the application under Section
21(1) and (2) of West Bengal Premises Tenancy Act, was filed before the Rent Controller, Barasat with a prayer for accepting rent from March,
2005. The erstwhile landlord challenged the maintainability of such proceedings before the Rent Controller for lack of jurisdiction and ultimately
invoked jurisdiction of the High Court by filing C.O. No.233 of 2006 and the High Court granted stay of proceedings pending before the Rent
Controller. The said C.O. No.233 of 2006, is stated to be still pending before the High Court. By filing another C.O. No. 2526 of 2018, the application
under Section 7(1) and 7(2) of the West Bengal Premises Tenancy Act, 1997, filed by the petitioner, was sought to be expeditiously disposed of. In
connection with the C.O. No. 2526 of 2018, direction was there to secure expeditious disposal of 7(1) and 7(2) of the Act without granting any
unnecessary adjournment to either party, preferably within 30th September, 2018.
Though, the petitioner attempted to show the irregularities in the matter of disposal of instant application under Section 7(1) and 7(2) of the Act, but
when the petitioner successfully participated in the hearing process to represent the version of the petitioner/tenant, it cannot be concluded that there
was prejudice caused to petitioner/defendant in the manner in which it was disposed of, specially when the learned court below proceeded to secure
expeditious disposal of application under Section 7(1) and 7(2) of the Act, following direction from the High Court, given in C.O. No.2526 of 2018.
Before parting with the record, another important aspect needs to be mentioned regarding the amendment effected in 7(1)(a) of West Bengal
Premises Tenancy Act, 1997, which was given effect from 1st June, 2006. In view of such amendment, two options are found available for the tenant
to deposit rent in connection with the pending eviction suit. One of such options is to pay rent directly to the landlord and the other option is to deposit
the rent with the court. The suit was admittedly instituted in the year 1994. Therefore, as per amended provision of Section 7(1)(a) of West Bengal
Premises Tenancy Act which coming to effect from 1st June, 2006, the petitioner/tenant was statutorily bound to deposit rent availing any of the two
options found to exist there. When tenant/petitioner received summon and in consequence thereof, entered his appearance on 14.12.2016, the
tenant/petitioner in the given set of facts is required to adhere procedure, mentioned in Section 7(1) of the West Bengal Premises Tenancy Act by
depositing the arrears of rent from March, 2005 supported by an application under Section 5 of the Limitation Act together with a further prayer under
Section 7(2) of the Act, praying for adjudication of the dispute pertaining to relationship between the parties and that of the rate of rent, or arrears of
rent, if any. Since, there left nothing in proof of deposit, if any, made before the Rent Controller, there is hardly any occasion for the court to look into
such deposit before the Rent Controller, if any at all made.
Though, learned advocate for the petitioner argued with emphasis that in course of hearing circumstances making the petitioner/tenant to be victim of
a situation for receiving ill-advice from conducting learned advocate and thereby justifying the petitioner to have been sufficiently prevented from filing
the application much earlier, were explained in support of delay caused, but the impugned order speaks otherwise, which is highly indicative to reveal
that there was no oral submission explaining the reasons for delay was made, and as such this argument, as raised by the petitioner, would not be an
acceptable stand.
Upon perusal of the impugned order, it appears that after disposal of the application under Section 7(1) and 7(2) of the West Bengal Premises
Tenancy Act, 1997, the petitioner/tenant proceeded to make out an adjournment application praying for time enabling him to file an application under
Section 5 of the Limitation Act on the next date, which was not entertained by the court below. Thus, the moment when the application under Section
7(1) and 7(2) of the Act, 1997, was disposed of, there was nothing before the court below, explaining the reason for delay so as to condone the same
under Section 5 of the Limitation Act, even in the absence of the formal application therefore.
All the courts exist over this earth purely to render justice between the parties. The courts are generally liberal in condoning the delay, provided
sufficient circumstances are there explaining the delay caused preventing the petitioner from instituting an action. The court is supposed to exercise its
discretion most judicially, depending on the fact and circumstances of each case, with an aim to render substantial justice between the parties.
When it is the specific case of the petitioner that for being ill-advised by learned conducting advocate, who was subsequently changed with the
appointment of the new advocate by the petitioner, the defendants should not be made to suffer and penalize for advocate’s default. Thought,
admittedly after the disposal of application under Section 7(1) and 7(2) of the Act, the petitioner/tenant sought for an adjournment, intending to file an
application under Section 5 of the Limitation Act for condonation of delay, but it would be sufficient enough to reveal the real intention of the
petitioner/tenant to have the protection of the rent legislation after complying with the procedure, prescribed in the Rent Act itself, particularly in a
case of this nature, when there is nothing to reveal willful failure, deliberate default or volitional non-performance on the part of the petitioner/tenant so
as to deposit the arrears of rent together with monthly rent in court. Upon considering the rival submission of the parties, the court is of the view that
the justice would be best sub-served, if the petitioner be given an opportunity to file an application under Section 5 of the Limitation Act for
condonation for delay in support of the application already filed under Section 7(1) and 7(2) of the West Bengal Premises Act, 1997. Upon setting
aside the impugned order. If such an order is passed, that would surely sub-serve the purpose of justice and it will not cause any prejudice to any of
the parties contesting the case.
For the discussions made hereinabove, the revisional application succeeds.
The impugned order dated 11th September, 2018 passed by the learned Civil Judge (Junior Division), 1st Court, Barasat in rejecting the application
under Section 7(1) and 7(2) of the West Bengal Premises Tenancy Act, is set aside.
Petitioner/tenant is given liberty to file an application under Section 5 of the Limitation Act, explaining the circumstances causing delay for the purpose
with a prayer for condonation of delay in support of the application already filed by the petitioner under Section 7(1) and 7(2) of the West Bengal
Premises Tenancy Act, 1997, within a fortnight from the date of communication of this order to the learned court below.
Petitioner is directed to make communication of this order urgently to the learned court below.
The learned Civil Judge (Junior Division), 1st Court, Barasat, in connection with Title Suit No. 667 of 2013 is directed to dispose of the Section 5
application, if any, filed within the stipulated period mentioned hereinabove without granting any unnecessary adjournments, preferably within two
months from the date of filling Section 5 application, after giving sufficient opportunities of hearing to plaintiff/opposite parties.
With this observation, the Revisional Application stands disposed of.
Urgent certified copy of this order and judgment, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the
all necessary formalities.
