Indrajit Chatterjee, J.—Leave under section 5 of the Limitation Act stands allowed and as such CAN 12073 of 2016 is hereby allowed. Delay of 86 days is hereby condoned being not opposed.
2. Mr. Basu took me to the order of this court passed in C.O 682 of 2015 dated 17th June 2016 wherein this court was pleased to treat the deposits made by the tenant to be bad deposits as the arrear rent was deposited before the Rent Controller and not before the trial court as contemplated under section 7(1) of the Premises Tenancy Act 1997.
3. Mr. Basu contended that there was no dirty mind behind such deposit and it was a genuine mistake on the part of the tenant to make such deposit before the Rent Controller. He further contended that money due, went out of the pocket of the tenant and as such he did not derive any benefit from such wrong deposit.
4. He further submitted that provisions of section 7(1) and 7(2) of the said Act of 1997 are both directory and not mandatory as held by the Division Bench of this court as reported in 2012(3) CHN (Cal) 423 (Subrata Mukherjee v. Bisakha Saha). He also referred to the decision of the Hon''ble Apex Court as reported in 2015 (8) SCC 640 (Monoj Lal Sil and Ors. v. Octavious Tea and Industries Ltd.) wherein the Apex Court in paragraph nos. 26 and 27 held that if the deposit before the Rent Controller can be said to be bona fide then such deposits may be accepted by the trial court and thereby the Apex Court accepted the version of the Small Causes Court and preferred not to interfere with the order of the Small Causes Court and also of the high court.
5. In counter to all these, Mr. Chatterjee appearing on behalf of the landlord/opposite party submitted that the judgment of Subrata Mukherjee (Supra) will not apply in this case as in that case before the Division Bench of this court it was not an issue whether section 7(1) or section 7(2) of the Act of 1997 were mandatory provisions or directory provisions. He further submitted that in that case before the Division Bench the only question was whether section 5 of the Limitation Act will apply in a proceeding under section 7(1) or sunder section 7(2) of the Act of 1997.
6. He further contended that Section 7(1) is prelude to section 7(2) and unless section 7(1) is complied, there is no question of application of section 7(2). Thus, he submitted that the only way left to the court was to struck off the defence under section 7(3) of the said Act of 1997. He further submitted that there is no point to review the matter and this court rightly held that deposits made by the tenant were not bona fide deposits as those were filed before the Rent Controller even after filing of the suit.
7. He ended the argument by saying that the order of the trial court in Ejectment Suit No. 82 of 2012 was passed on 13th January 2015 ignoring the statutory limitation under Section 7(2) of the Act of 1997 and the trial court illegally permitted the tenant to deposit Rs.2,56,530/- in two instalments that is on 13th February 2015 (first instalment) and 14th March 2015 (second instalment). He further submitted that money is still with the Rent Controller and this tenant even did not comply with the order of the trial court by depositing the first instalment which was due on 13th November 2015 before filing of the civil revisional application, which was filed on 23rd February 2015.
8. I have gone through the order of this Court as passed in C.O. no.682 of 2015 which is now under review. I have also gone through the order passed by the learned trial court which is ''Annexure-A''. I have also taken into consideration the grounds as mentioned in the review application and also the arguments put forward by the learned advocates appearing on behalf of the parties. This Court as per the order under review held that the deposits made by the present petitioner before the rent controller must be treated as bad deposits and it further held that the defendant/petitioner 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.
9. As per Section 7(1) of the Act of 1997 such deposits ought to have been made before the learned trial court. The amount so deposited before the rent controller since December 2002 to December 2014 is in total Rs.256530/-. The case before the trial court was filed in the year 2012 and naturally such deposits were being made long before the filing of the ejectment proceeding.
10. It may be noted that the learned trial court allowed two instalments to pay the dues and first instalment ought to have been paid on 13th February, 2015 and second instalment ought to have been deposited on 14th February, 2015. The revisional application was filed before this court on 23rd February, 2015 and as such the tenant/petitioner had time to get benefit of the order of the trial court to deposit the first instalment on 13th February, 2015. It may also be noted that no stay order was passed in that civil revisional application and as such this petitioner was entitled to deposit the second instalment also. The fact remains that the petitioner tenant did not walk on that line.
11. This court disposed of the civil revisional application relying on the decision of this court as passed in 78 CWN 579, 1977 (2) CLJ 594 and one unreported decision passed by this court which was presided over by myself that is C.O. no.1941 of 2013 (Amit Kumar Chamaria v. Ram Brich Singh) (internal page no.4 of the judgment).
12. The decision of the Division Bench of this court cannot apply in the facts and circumstances of this case as in that case before the floor of the Division Bench the only point for consideration that bench was whether Section 5 of the Limitation Act will apply in a proceeding under Section 7 (1) and (2) of the Act of 1997. The decision of the Apex court as passed in Manoj Lal Seal (supra) decided that if the deposit was made to the Rent Controller instead of Civil Judge (Jr. Division) the point is to be decided whether it was made deliberately or it was a bona fide mistake. The burden was put by the Apex Court on the tenant to satisfy the court that such deposit was bona fide. I am constrained to say that nothing was placed before me when the civil revisional application was disposed of that such deposits before the Rent Controller even after the filing of the civil suit were made bona fide.
13. The intention of the conduct of the tenant petitioner can also be inferred from the circumstances that he wants to harass the present petitioner. He could have easily deposited the first instalment and even the second instalment before the learned trial court to the tune of Rs.256530/- but he did not do so.
14. Thus, I reiterate that the deposits before the rent controller was made capriciously and were not bona fide.
15. Thus, in view of the aforesaid discussion so long made this court is satisfied that there is nothing on record to review the order passed by this Court on 17.08.2016. Thus, the review application is answered in the negative.
16. The other CAN application being CAN no.12075 stands disposed of as review application has been disposed of finally.
17. There will be no order as to costs.
18. Department is directed to communicate this order to the learned trial court at once.
19. Certified copy of this order, if applied for, be given to the parties on usual undertaking.
