PARESH HAZRA Vs. LAKSHMI KANTA NASKAR

JUDGEMENT

(1.) THIS revisional application has been directed against the order No. 49 dated 1.12.1999 pased by the learned Civil Judge (Junior Division), Ist Court at Alipore rejecting the application under Section 151, CPC praying for an order on condonation of delay in depositing the monthly rent as well as the amount of instalment for the arrears of rent in terms of the order passed by the learned Court under Section 17(2) and (2A) of the West Bengal Premises Tenancy Act (for short the said 'Act').

(2.) THE Opposite Party as plaintiff instituted a Title Suit No. 315 of 1987 before the learned Court below against the petitioner praying for a decree for eviction from the suit property on the ground of default and reasonable requirement. The petitioner entered appearance and filed an application under Section 17(2) and (2A) of the said Act which was disposed of by the learned Court by directing the petitioner to deposit the arrears of rent by instalment @ Rs. 300/- per month. The petitioner had been depositing the current monthly rent as well as the instalments as per direction of the Court but unfortunately on and from 10.10.1996 the petitioner fell ill due to sudden attack of 'Asthma' coupled with 'Cardiac Problem' and was unable to deposit the instalment as well as the monthly rent in terms of the order of the Court. Thereafter, the arrears amount was deposited by challan dated 16.5.1997 and by another challan dated 14.2.1998. After having deposited the default instalments the petitioner filed two applications under Section 151 of CPC praying for condonation of delay in depositing monthly rent as well as the instalments of arrears of rent on 17.5.1997 and on 24.2.1998. The petition was objected to by the Opposite Party/landlord. The learned Court below disposed of the application disbelieving the medical certificates produced by the petitioner on the ground that the medical practitioner who was a child specialist was not examined and for non-production of the materials in support of the specific illness. On such finding the application under Section 151, CPC was rejected. Being aggrieved the petitioner has filed this application.

(3.) IT cannot be disputed that the High Court in exercising revisional jurisdiction can interfere when it is found that the trial Court has acted in the exercise of its jurisdiction illegally or with material irregularity whereby the prejudice has been occasioned to the petitioner. If a tenant, voluntarily and by his own laches deposits or pays the rent beyond the time fixed by the Court or by Section 17(1) of the said Act, the Court certainly can refuse to exercise its discretion in favour of such a defaulting tenant and reject the prayer for condonation of delay in making the deposit but if a tenant can show extraordinary circumstances in an involuntary breach the Court cannot disbelieve the same unless contrary is proved. In the particular case it does not paper from the impugned order passed by the Court that the case of the alleged illness of the tenant was made out on a false pretext. It does not appear from the order that the landlord examined any witness in support of his written objection that the tenant was found several times going to the market during the period of illness as stated in paragraph 6 of the objection petition. Admittedly, the tenant continued to deposit arrears of rent as also current rent but committed breach in depositing few instalments on the ground of his being attacked with illness which was examined by child specialist. If the medical certificate appeared to him as unworthy of credence he ought to have insisted on examination of the medical practitioner issuing the certificate. In that case opportunity to examine medical witness ought to have been given to the petitioner and he was not justified for disbelieving the medical certificate which was undisputedly granted by a medical practitioner. The competency of medical practitioner issuing the certificate has not been questioned by the landlord in his evidence or written objection. The Court without something more cannot be held justified to make an inference that a child specialist may not be competent to treat a patient attacked with asthma or cardiac disease. Therefore, such a finding based on conjecture or unreasonable inference has caused miscarriage of justice entitling this Court to interfere with the decision. It is a fit case where delay should have been condoned.