Harish Tandon, J.@mdashThis revisional application is directed against the order No. 25 dated 13.3.2007 passed by the Additional District Judge, Sealdah in Title Appeal no. 20 of 2005 by which an application u/s 151 of the CPC seeking for condonation of delay in depositing the rent in Court is rejected.
2. The opposite party No. 1 along with the predecessor-in-interest of the opposite party No. 2 namely Sujay Pal instituted Title Suit No. 63 of 2000 against the predecessor-in-interest of the petitioners praying for a decree for eviction on various grounds including a ground of reasonable requirement.
3. The predecessor-in-interest of the petitioners, though appeared in the suit, but did not take any steps for filing an application under sections 17(1) and 17(2) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the said Act).
4. Upon the death of the original plaintiff No. 2, namely Sujay Pal, the present opposite party No. 2 was substituted. The original defendant being the predecessor-in-interest of the present petitioners also died during the pendency of the suit and the present petitioners were duly substituted in the said suit. Even the present petitioners did not file any application under sections 17(1) and 17(2) of the said Act. The said suit was thereafter posted for hearing and the parties adduced evidence.
5. The petitioners filed challans showing the deposit of the rent with the Rent Controller from the month of January, 2004 to December, 2004 which are marked as Ext. A series.
6. The said suit was subsequently decreed and the issue relating to default in payment of rent was also answered in favour of the opposite parties.
7. The petitioner assailed the said judgment and decree before the District Judge and on being assigned by an administrative order, the said appeal was taken up by the Additional District Judge, Sealdah. While the said appeal was pending for final consideration the petitioners took out two applications namely an application under Order 41 Rule 27 of the CPC praying for an order to produce additional evidence and another application u/s 151 of the CPC praying for condonation of delay in making the deposit for 9 months along with the statutory interest.
9. Initially, both the applications were taken up together and the Court below decided to hear out the aforesaid applications at the time of final hearing of the said appeal. The petitioner challenged the said order by filing an application under Article 227 of the Constitution of India being CO No. 1642 of 2006 before this Court and this Court, after setting aside the part of the order by which the said application u/s 151 of the CPC was directed to be heard at the hearing of an appeal, directed the Court of appeal below to consider the said application u/s 151 of the Code before hearing of an appeal.
10. Pursuant to the said order, the Court of Appeal below took up the said application u/s 151 of the Code and ultimately rejected the same. Hence the instant revisional application is riled challenging the said order by which an application u/s 151 of the Code is rejected.
11. Mr. Sabyasachi Bhattacharya, learned Advocate appearing for the petitioner submits that the court below had acted illegally and with material irregularity in dismissing the said application u/s 151 of the Code. He submits that the Court of appeal has ample power to condon delay in making a deposit of rent u/s 17 of the West Bengal Premises Tenancy Act, 1956 and relied upon the judgments of this court in case of Dhruba Jyoti Ghosh vs. Dipak Kumar Roy, reported in 2007(2) CLJ (Cal) 343 and in case of Amiya Kumar Chakraborty vs. Satyendra Kumar Hoy Chowdkury, reported in 88 CWN 898. He succinctly argues that if the Court finds that the defendant is prevented by sufficient cause in not depositing the amount of rent, the Court by invoking the powers u/s 17 of the West Bengal Premises Tenancy Act can extend the time. While contending so he relies upon a judgment of the supreme Court in case of
12. Per contra Mr. Hiranmoy Bhattacharya, learned Advocate appearing for opposite parties submits that the petitioners at one hand says that the rent for entire period is deposited but on the other hand seeking for condonation of delay in depositing the rent for 9 months in the instant application. He further submits that the said application is an outcome of ill motive to frustrate the decree passed by the Trial Court.
13. He further argues that the court of appeal below have considered the merit of the said application and could not found any cause to allow the said application. This Court, under Article 227 of the Constitution of India, should not interfere with the order passed by the Court below which is supported by reasons.
14. Having considered the respective submissions made at the bar, admittedly, neither the petitioners nor their predecessor-in-interest filed an application under sections 17(1) or 17(2) of the West Bengal Premises Tenancy Act, 1956. The petitioner tendered in evidence the rent control challans for a period from January 2004 to December 2004 in the trial court. It is a case made out by the petitioners that the lawyer who was conducting the suit in the Trial Court did not advise to file the challans showing the deposit of the rent in compliance of section 17(1) of the West Bengal Premises Tenancy Act, 1956. Precisely, for such reason an application under Order 41 Rule 27 of the Code is filed praying for permission to adduce additional evidence, The said application was, initially directed for hearing at the time of the disposal of the said appeal which was set aside by this Court in revision.
15. The Court below has observed that the petitioners had frequently changed counsels to conduct the said suit. The petitioners are trying to make the Court believe that due to the mistaken/ill-advice of the Advocate neither an application u/s 17(2) was taken out nor the challans showing the deposit of the rent was tendered in evidence before the Trial Court. Thus the petitioner is trying to trigger the barrel keeping on the shoulder of the Advocate. Such story is hardly believable. Had it been a fact that the lawyer did not advise the petitioners to file the application u/s 17(2) of the said Act or to file the challan showing the deposit of rent there would have been some iota of piece of evidence in the form of an affidavit of the said lawyer himself appearing before the court to justify the above allegations.
16. Since the Court below after considering the factual matrix have held that the said application is devoid of merit, this Court under Article 227 of the Constitution should be slow and circumspicuous to interfere.
17. The power of the High Court under Article 226 and article 227 of the Constitution though very wide and extensive but such power should be exercised within the precincts of the limits of law. If it appears that there is a miscarriage of justice or flagrant violation of law then the intervention is called for but if the Court feels that the Court below has not misdirected itself then the Court should not interfere under Article 227 of the Constitution of India. The Apex Court while considering the scope and powers conferred upon the High Court under Articles 226 and 227 of the Constitution of India held in case of
38. Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature the High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate Court or inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior Court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts and inferior tribunals within the limits of law.
18. Thus, I do not find any illegality or material irregularity in the order itself.
19. The revisional application is hereby dismissed. However, there shall be no order as to costs.
20. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
