DHRUBA JYOTI GHOSH Vs. DIPAK KUMAR ROY

JUDGEMENT

(1.) The order dated 10th July, 2006 passed by the learned Trial Court in the Small Causes Court of Calcutta in Ejectment Suit No. 201 of 2005-C is under challenge in this application under Article 227 of the Constitution of India.

(2.) Heard learned Counsel for the petitioner who submits that the present petitioner/defendant after appearing in the suit under reference filed an application praying for allowing him to deposit the arrear rent as well as the current rent. Learned Counsel for the petitioner submits that the learned Court disposed of the said application but due to wrong advice of the then learned conducting. Advocate, the petitioner/defendant went on depositing the current rent regularly. Subsequently, however, this was detected by another learned Advocate and being advised, the petitioner approached the learned Trial Court with an application under Section 151 of the Civil Procedure Code praying for allowing him to deposit the arrear rent from the period from August 2002 to April 2004. Learned Court took up the said application under Section 151 of C.P. Code and after contested hearing, dismissed the same and the defence against delivery of possession was struck out by the said order. Learned Counsel for the petitioner submits that the order under challenge was the result of misappreciation of the facts and circumstances of the case as well as misinterpretation of Section 151 of C.P. Code. Leanred Counsel for the petitioner, in this context, refers to a number of decisions.

(3.) In the case of Himanshu Kumar Lahiri v. Gajendra Kumar De, reported in 1986 (1) CHN 413, learned Single Bench of this Court observed that it was the duty on the part of the learned Court to consider the application under Section 151 of C. P. Code on merits so as to decide the fate of the present petitioner/tenant. According to learned Counsel for the petitioner, the learned Court while taking up the application under Section 151 of C.P. Code did not, in. fact, enter into the explanation offered nor did it attempt to analyse whether there was justifiable reason for the failure on the part of the petitioner/tenant to deposit the arrear rent.