Amal Boral vs Debasish Paul & Anr on 21 August, 2019

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FACTS OF THE CASE-

1. The petitioner was inducted as a 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.
2. 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 initiated before the Rent Controller, Barasat, which was registered as RC Case No.
3. The erstwhile tenant being the father of the opposite party No.1 and husband of opposite party No.2
4. 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.
5. The case of the petitioner is that after the demise of the 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.

ISSUES RAISED BY THE COURT –

• Whether order impugned in present case need interference – Held, courts are generally liberal in condoning delay – Sufficient circumstances must exist explaining delay caused preventing petitioner from instituting any action
• Whether the order impugned is sustainable or not?

CONTENTIONS OF THE PETITIONER- 

1. The learned advocate for the petitioner argued that the failure to deposit arrears of rent and monthly rent under Section 7(1) of the West Bengal Premises Tenancy Act, 1997, was not deliberate default or wilful failure, and therefore, the court should have allowed the application under Section 7(1) and 7(2) of the Act. 
2. The petitioner also argued that the court’s verbal explanation of the delay during the hearing was not enough to address the issue, causing prejudice to the tenant.
3. The learned advocate for the petitioner argued that a tenant could not be penalized for the ill-advice of the learned conducting advocate and that discretion should be exercised in Favor of the tenant.
4. The learned advocate for the plaintiff/petitioner refuted the petitioner’s submission, stating that the court rightly rejected the applications after exercising discretion in accordance with law.
5. The opposite party argued that the benefits extended by the rent legislation could only be enjoyed by the tenant under strict compliance of the statutory procedure in appropriate cases when there was no failure in adhering to strict statutory procedure.
6. The opposite party proposed that when the obligation could not be discharged by depositing arrears in court within a month from the service of summons or the date of appearing in court without the summons being served, the discretion sought to be exercised could not be lawfully made.

CONTENTIONS OF REPONDENT

1. In a suit instituted in 2014, the tenant entered his appearance by furnishing vakalatnama on 09.02.2016 and subsequently submitted a written statement on 14.12.2016 along with an application under Section 7(1) and 7(2) of the West Bengal Premises Tenancy Act, 1997. 
2. There was an admittedly ten-month delay in filing these applications, without being supported by any application under Section 5 of the Limitation Act.
3. The court must determine if failure to comply with the statutory procedure was consequential to defiance or gross neglect on the part of the tenant. The tenant 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-part hearing. When the tenant/petitioner proceeded to challenge the eviction suit by filing a written statement on 14.12.2016, along with an application under Section 7(1) and 7(2) of the 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.
4. An element of truth regarding the ill-advice given by the learned previous conducting advocate detrimental to the interest of the petitioner/tenant is conspicuously noticeable with the appointment of a 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, especially in cases of the present nature, if necessary by exercising the discretion favourable to the purpose of the 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 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 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, which is still pending before the High Court. The court proceeded to secure expeditious disposal of the application under Section 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 the instant application under Section 7(1) and 7(2) of the Act, it cannot be concluded that there was prejudice caused to the petitioner/defendant in the manner in which it was disposed of, specially when the learned court proceeded to secure expeditious disposal of the 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.

JUDGEMENT-

The petitioner, who was ill-advised by a learned conducting advocate, sought an adjournment to file an application under Section 5 of the Limitation Act for condonation of delay. The court considered the rival submissions of the parties and decided that justice would be best served if the petitioner was 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. The impugned order dated 11th September, 2018 rejected the application under Section 7(1) and 7(2) of the West Bengal Premises Tenancy Act. The petitioner/tenant is given liberty to file an application under Section 5 of the Limitation Act, explaining the circumstances causing delay and praying 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 to the learned court. The learned Civil Judge (Junior Division), 1st Court, Barasat, is directed to dispose of the Section 5 application, if any, filed within the stipulated period without granting any unnecessary adjournments, preferably within two months from the date of filling the Section 5 application, after giving sufficient opportunities of hearing to the plaintiff/opposite parties. The Revisional Application stands disposed of, and a certified copy of this order and judgment will be given to the appearing parties as expeditiously as possible upon compliance with all necessary formalities.

Case Analysis –

1. Sec 7(1) and 7(2) 0f WB Tenancy act-
2. Limits of enhancement of rent of tenures. –
   1. Where the rent of a tenure-holder is liable to enhancement, it may, subject to any contract between the parties, be enhanced up to the limit of the customary rate payable by persons holding similar tenures in the vicinity
   2. Where no such customary rate exists, it may, subject as aforesaid, be enhanced up to such a limit as the Court thinks fair and equitable.
3. WILFUL FAILURE –means a knowing fail- ure or a reckless disregard with respect to whether the conduct was contrary to sec. 214(c) of the INA, or this subpart.
4. (3) Extension of prescribed period in certain cases. —Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.— 
5. The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.

REFERENCES

1. https://www.scribd.com/
2. https://indiankanoon.org/
3. https://www.manupatrafast.com/?t=desktop 

This Article is written by Vedanti Jumde student of Shankkarao Chavan Law College; Intern at Legal Vidhiya.

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