BINA DEVI BINANI Vs. RAMESH KUMAR GUPTA

JUDGEMENT

(1.) This revisional application has been filed by the plaintiff landlord in Ejectment Suit No. 153 of 2004 pending before the learned Civil Judge (Junior Division), First Court at Alipore. The plaintiff/petitioner filed, the said ejectment suit under the provisions contained in West Bengal Premises Tenancy Act, 1997 (hereinafter referred to "the 1997 Act") against Ramesh Kumar Gupta, since deceased (hereinafter stated as "the original opposite party") claiming his eviction from the suit property being Flat No. 20 of Premises No. 23A/76A, Diamond Harbour Road, New Alipore, Block-E, Kolkata.

(2.) In the plaint filed in the ejectment suit, the petitioner stated that the monthly rent which was payable by the original opposite party in respect of the suit property was Rs. 1,100/- per month. One of the grounds of eviction stated in the plaint was that the opposite party defaulted in payment of rent since January, 1993. The original opposite party filed an application, under Section 7(2) of the said 1997 Act, before the Additional Rent Controller. During pendency of the said application, the power to decide an application under Section 7(2) of the said Act vested in the learned Civil Judge. By an order dated June 15, 2011, the learned Civil Judge found that the admitted rate of rent in respect of the suit property is Rs. 1,100/- per month and held that Rs. 90,200/- was the arrear amount of rent for eighty two months. By the said order, the learned Civil Judge directed the original opposite party to pay the said sum of Rs. 90,000/- together with statutory interest at the rate of ten per cent (10%) thereon, amounting to Rs. 1,21,394/- to the petitioner by two equal monthly installments of Rs. 60,697/- payable by July 30, 2011 and September 15, 2011. The original opposite party did not make payment of any of the two said installments. On April 20, 2012, the original opposite party filed an application, under Section 151 of the Code of Civil Procedure, 1908 before the Civil Judge, praying for an order condoning the delay of nine months in depositing of arrear rent and to allow him to deposit the said amount of Rs. 1,21,394/- along with the statutory interest. In the said application it was the case of the original opposite party that his Advocate did not inform him of the said order dated June 15, 2011 until December, 2011; in the month of December, 2011 he was taken ill and even after recovering from his illness, he could not immediately deposit the said amount of Rs. 1,29,394/-. The plaintiff/petitioner contested the said application and disputed the grounds alleged by the original opposite party in his application. The plaintiff petitioner specifically contended the learned Civil Judge lacked the jurisdiction to entertain the said application under Section 151 of the Code. The plaintiff petitioner also contended that in view of the original opposite party not paying the arrear rent, in terms of the said order dated June 15, 2011, a right has accrued in her favour under sub Section (3) of Section 7 of the 1997 Act for striking out the defence of the opposite party defendant against delivery of possession. By an order dated July 25, 2012, the learned Civil Judge allowed the application of the original opposite party under Section 151 of the Code of Civil Procedure. In this revisional application the plaintiff petitioner has challenged said order dated July 25, 2012. During the pendency of this application, the original opposite party/tenant Ramesh Kumar Gupta died and he was substituted by his wife in this application.

(3.) Mr. Srijit Chakraborty, learned Advocate appearing in support of the revisional application contended that in view of the mandatory provision contained in Sub-section (2) of Section 7 of the 1997 Act, the impugned order passed by the learned Civil Judge is vitiated by patent illegality and the learned Civil Judge had no jurisdiction to entertain, far less to pass the impugned order.