NAZRUL ISLAM Vs. MANNA SINGH

JUDGEMENT

(1.) This is a tenant's appeal against a decree for ejectment passed by the Fifth Bench of the City Civil Court, Calcutta, on July 29, 1960. The facts are briefly as follows: The respondent Manna Singh is the owner of premises No. 4/2, Nawab Abdul Latif Street, Calcutta. The appellant Dr. Nazrul Islam was a monthly tenant under the respondent of the said premises, according to the English calendar month, at a monthly rent of Rs. 145. On May 19, 1958, the respondent served a notice to quit upon the appellant asking him to quit and vacate the said premises on the expiry of the last day of the month of June 1958. As he did not comply with the said notice, a suit for ejectment was brought by the respondent against the appellant in the City Civil Court, Calcutta, on or about January 2, 1959. In the plaint in the said suit it was stated that the appellant was not protected eviction under the provision of the West Bengal Premises Tenancy Act (XII of 1956) hereinafter referred to as the 'said Act', inasmuch as he had sub-let and/or transferred his interest in respect of various portions of the said premises to various tenants without consent and knowledge of the respondent and had also defaulted in the payment of rent for and from the month of March, 1957. It was also alleged that he was guilty of acts of waste and negligence, as a result of which the said premises had materially deteriorated. The applicant filed written statement denying the allegations and, in particular, that he had sub-let any part of the premises without the knowledge and consent of the respondent, or that he had received a notice to quit or that he had made any default in payment of rent. As regards default, he put forward two specific defence. Firstly, he said that at the time that the respondent leased out the said premises it was in a dilapidated state and the appellant made necessary repairs at the cost of Rs.2,200, but of which the respondent agreed to pay Rs. 500 which was not paid to him. He accordingly, on June 7, 1958, sent a notice through his pleader Shri S. N. Guha demanding that amount and stating that unless the amount was paid up or adjusted the applicant could not be held to be a defaulter. The second defence was that the applicant used to pay rent regularly, but the respondent failed to grant receipt. It is not mentioned in the written statement, for which month a receipt was not granted but reference was made to a case filed by the appellant before the Rent Controller, Calcutta but no particulars of the case was set out. I have already mentioned that the suit was filed on or about January 2, 1959. On February 25, 1959, summons was served. On April 2, 1959, the appellant filed his written statement. On June 8, 1960, the respondent filed a petition under Section 17(3) of the said Act. Section 17(1) of the said Act provides that if, when a suit is instituted by the landlord, there exists any default in the payment of rent, the tenant can deposit the same with interest into Court within one month of the service of the writ of summons and must go on depositing month by month by the 15th days of each succeeding month, a sum equivalent to the rent. If there was any dispute in regard to the amount payable as rent, then the tenant may make an application under sub-section (2) and the dispute would be decided by the Court. Sub-section (3) provides that if a tenant failed to deposit or pay any amount referred to go in sub-section (1) and (2), the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit. I have already stated that on June 8, 1960, the respondent filed an application under Section 17(3) for striking out the defence against delivery of possession. On June 8, 1960, the appellant filed his objection he stated that he had paid the rent for March, 1957, but the respondent failed to issue a rent receipt in favour of the appellant. On July 11, 1960, this application under Section 17(3) was heard upon evidence. The appellant appeared through his Advocate, who actually cross-examined Tribhubon Singh, son of the respondent, who was produced and gave evidence on his behalf. A copy of the deposition is at pages 33 and 34 of the paper book. It is of the utmost importance to note that this was the only evidence called and that the appellant neither gave evidence nor called any evidence in support of the case. The witness said as follows:- The defendant did not pay rent of March, 1957 to us not also April, 1957. Rent of April and May, 1957 were deposited by the defendant on 18.6.57. No rent of March, 1957 deposited in Court.

(2.) In cross-examination on behalf of the appellant, he said that the rent of March, 1957 was not paid and an application by the appellant to the Rent Controller under Section 25 of the said Act was rejected. He said that after the service of summons on February 25, 1959, the first deposit was made in March 13, 1959, in the Court, but the rent in arrear for March, 1957 was not deposited and hence there was no compliance with Section 17(1) of the said Act. He also stated that there was no deposit for October, 1959, December, 1959, January, 1960, Feb. and May, 1960 and the amount of deposit for March and June, 1959 were not made in time. It will, therefore, appear that in spite of a definite statement in evidence that rent for March, 1957 had not been paid or deposited under Section 17(1), no evidence was adduced to contradict it. In cross-examination it was not even put to the witness that the rent for March 1957 had been paid but no receipt had been issued. It will appear from the order-sheet dated July 11, 1960 that the proceedings were finished, arguments were heard and the matter was adjourned till July, 18 for orders. On July 15, 1960, an application was made on behalf of the appellant stated to be under Sections 17(1) & (2) of the said Act. A copy of the petition is at pages 3t to 37 of the paper-book. In that petition it was stated that there was a bona fide and genuine dispute with regard to the amount of rent for March, 1957. It was stated that the appellant had made an application before the Rent Controller under Section 25 of the said Act for failure of the respondent to give a receipted bill, but unfortunately that case was dismissed in the appellant's absence. It was prayed that the amount due should be determined. In that petition there was no mention of any letter being sent under certificate of posting. On July 18, 1960, both the applications under Section 17(3) and Section 17(2) by the appellant were disposed of in the Court below. The learned Judge rightly pointed out that if the rent of March, 1957 was due and not deposited in Court, then there was clear violation of Section 17(1) and the appellant would not be entitled to any relief. The learned Judge then proceeded to consider as to whether there was a bona fide dispute with regard to the following facts: The case of the appellant was that he had paid the rent for March, 1957, but the respondent refused to grant a receipt. Before the Rent Controller the appellant had made an application under Section 25 of the said Act. Section 25 lays down that every tenant who makes a payment of rent to his landlord shall be entitled to obtain forthwith from his landlord, or his authorized agent, a written receipt for the amount paid by him signed the landlord or his authorized agent. If the landlord or his authorized agent refused to grant such a receipt the tenant may, within two months from the date of payment and after hearing the landlord or his agent, direct them to pay by way of damages such sum not exceeding double the amount of rent paid and costs as also a certificate to the tenant in respect of the rent paid. The Rent Controller held that the application was beyond time and dismissed it. The appellant invoked sec. 5 of the India Limitation Act for condonation of delay, but he Rent Controller held that there was no justifying cause for the delay and application for condonation was dismissed. The next thing considered was that the appellant had already filed objection to the application under Section 17(3) and had put forward this precise point about payment having been made for March, 1957, but that a receipt was not granted and yet on July 11, 1960, when the matter was heard in the presence of his Advocate, he did not support his contention by calling any witness, in spite of the categorical evidence of the witness called on behalf of the respondent that no rent had been paid for March, 1957. In the cross-examination it was not even suggested that he had sent a letter under certificate of posting. Consequently, the learned Judge came to the conclusion that the defence was merely 'a sham and purposive dispute and was not bona fide'. The learned Judge referred to a decision of P. N. Mookerjee, J. in (1) Gujrat Printing Press v. Naraindas Jewraj, (1957) 64 CWN 159 where it was held that a tenant could not claim the benefit of the extended period under Section 17(2) merely by raising a dispute however false his allegation may be. If the dispute was sham and mala fide, it was not a dispute at all and would not take the matter out of Section 17(1) and bring it within sub-section (2) of Section 17. There can be no question that this principle has been correctly laid down. The dispute that has to be raised under Section 17(2) must be bona fide dispute. A sham dispute merely to gain time is no dispute at all and cannot give a fresh period with which to deposit the amounts under Section 17(1) or (2). In view of the materials before him, the learned Judge had correctly came to the conclusion that the dispute raised was a sham one. Therefore, he rightly ordered that the defence against delivery of possession should be struck out under Section 17(3). Immediately after the application was disposed of and on the same day, the application under Sections 17(2) and 17(3) was rejected. The suit was directed to be placed for hearing on July 29, 1960. On that date the appellant filed a petition under Section 151 of the Civil Procedure Code read with Order 47, Rule 1. This application was rejected. On July 29, 1960, the suit came up for hearing and was decreed. On that date the appellant did not appear and contest the validity of the notice. This appeal is directed against this judgment and decree.

(3.) Before the Court of Appeal the appellant made an application for additional evidence to be taken. The petition in respect thereof is set out at pages 58 to 63 of the paper-book. Briefly put, the ground of it was as follows: The appellant said that he had paid the rent for March, 1957 to the respondent who, however, failed to issue a rent receipt. Then we have the following paragraph: that as on the 11th July, 1960, the date of hearing of the respondent's said application, your petitioner could not come to Court due to unavoidable reason and could not inform his Advocate in due time about his inability to come to Court on the date, the said application was heard ex parte. In para 9 of the petition the appellant stated that on April 23, 1957, he paid to the respondent the rent for March, 1957, but the respondent did not grant him a receipt on the ground that he had left it in his shop. On May 4, 1957, the appellant wrote a letter to the respondent asking him to bring the receipted bill when he would come again to take the rent for the month of April, 1957. It is said that this letter was sent under certificate of posting on May 7, 1957. He then proceeded to say that this letter could not be found: In spite of due diligence as the were mislaid and after search your petitioner was able to find this letter and certificate of posting on the 27th of July, 1960. It is said that certificate of posting dated May 7, 1957, the true copy of the letter dated May 4, 1957, be taken as additional evidence. Upon July 5, 1961, the Court of Appeal directed that the application would be considered at the time of the hearing of the appeal but that the application together with the annexure to be printed in the paper-book. I shall first of all deal with this application for additional evidence. The relevant provision is Order 41, Rule 27 of the Civil Procedure Code. This provision of law lays down that the parties to an appeal shall not be entitled to produce additional evidence, but if the Court from whose decree an appeal has been preferred has refused to admit evidence which ought to have been admitted or the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, an Appellate Court may allow such evidence or document to be produced or witness to be examined. So far as we are concerned, we certainly do not require any further additional evidence. On the facts stated above, can it be said that the Court below has refused to admit evidence which ought to have been admitted? It is true that the suit was heard ex parte, but if anybody is to be blamed for, it is the appellant. As I have stated above, all possible points were put forward including the non-payment of rent for March, 1957 in the application under Section 17(3). This application was heard on July 11, 1960, and the order-sheet says that the parties were ready. In fact, evidence was called and the witness, produced on behalf of the landlord, was cross-examined. It must, therefore, be taken to have been a proper hearing. I have set out above the excuse given by the appellant for not calling any evidence on that date, which is totally unacceptable. All that the appellant was pleased to inform the Court was that he was unable to come due to 'unavoidable reason'. He never made an application for setting aside the order dated July 11, 1960, on the ground that he was unavoidably prevented from appearing. As regards the story that he could not produce the copy of the letter and certificate of posting because they were lost, that also is a story that cannot be accepted. If this was true he should have appeared on July 11, 1960, and taken the Court into his confidence explaining the reason why he could not produce the relevant evidence. In his petition dated June 18, 1960, which is set out at pages 29 to 30 of the paper-book, there is no mention of this fact. There is no mention of this fact also in the objection dated July 11, 1960, at pages 31 to 32 of the paper-book or in the application by the appellant under Section 17(2) dated July 15, 1960, at pages 35 to 37 of the paper-book. In fact, the result is that it cannot be said that the Court had refused to admit evidence which ought to have been admitted. This application of the appellant, therefore, should be rejected. I shall now refer to the way in which Mr. Guha, appearing on behalf of the appellant, framed his case. His first point is that the application of the appellant dated July 15, 1960, under Section 17(2) of the said Act, should be governed by sub-section (2) of Section 17 before the amendment introduced by Act 26 of 1959 which was published in the Calcutta Gazette on February 29, 1960, because the relevant time according to him would be the date of the filing of the suit, namely, January 2, 1959, when the amendment had not come into operation and, therefore, the old sub-section ought to apply. This sub-section was as follows: If any suit or proceeding referred to in sub-section (1) there is any dispute as to the amount of rent payable by the tenant, the Court shall determine, having regard to the provisions of this Act, the amount to be deposited or paid to the landlord by the tenant in accordance with the provisions of sub-section (1).