SRI JOGA SINGH Vs. SMT. SHASHI BALA SINHA

JUDGEMENT

(1.) The petitioner in this revisional application is a defendant (hereafter the defendant) in an ejectment suit. He has questioned the correctness of Order No. 5 dated 8th November, 2017 passed by the trial court whereby a petition dated 12th September, 2013 filed by the plaintiff/respondent (hereafter the plaintiff) under Section 7(3) of the West Bengal Premises Tenancy Act, 1997 (hereafter the 1997 Act) was allowed on contest, without costs, as a consequence whereof the defence of the defendant against delivery of possession was struck out.

(2.) It appears that on 13th September, 2012, the defendant filed an application under Section 7(1) and (2) of the 1997 Act. The arrears of rent payable by him was determined by the trial court by an order dated 5th July, 2013 which required deposit of Rs. 11,700/- within one month. On 5th August, 2013, an amount of Rs. 6,000/- was paid by him, leaving an unpaid balance of Rs. 5,700/-. On 22nd August, 2013, a petition was filed by him praying for extension of time. Such petition was taken up for consideration by the trial court on 12th September, 2013. The prayer of the defendant for extension of time to deposit the balance amount i.e. Rs. 5,700/- was allowed and he was directed to make payment within 30 days. Pertinently, on 12th September, 2013, the plaintiff had also filed an application under Section 7(3) of the 1997 Act. Till 26th November, 2013, the balance amount of Rs. 5,700/- had not been paid by the defendant although the time to make payment thereof had expired on 11th October, 2013. On 27th November, 2013, an order was passed by the trial court directing that the application under Section 7(3) of the 1997 Act shall be heard on 13th January, 2014 and liberty was granted to file objection in the meantime. The time to file objection was extended by an order dated 13th January, 2014, which was not availed of by the defendant. By an order dated 27th March, 2014, hearing was adjourned till 16th April, 2014. The trial court further considered the matter on 16th April, 2014. Finding that the defendant had not shown cause, 26th May, 2014 was fixed for ex-parte hearing. On that date, the defendant showed cause and 18th June, 2014 was fixed for filing of challan by the defendant. Having failed to produce the challan on 18th June, 2014 showing compliance of the order dated 12th September, 2013, the application under Section 7(3) of the 1997 Act was allowed by the trial court. On an application filed by the defendant, the order dated 18th June, 2014 was recalled resulting in revival of the application under Section 7(3) of the 1997 Act which was ultimately allowed by the order under challenge in this revisional application being the order dated 8th November, 2017. It is noted that payment of Rs. 5,700/- was, however, effected by the defendant on 18th June, 2014.

(3.) Mr. Bardhan, learned advocate appearing for the defendant contended that having regard to the decision of the Supreme Court reported in (1987) 2 SCC 407 : B. P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick , the word 'shall' appearing in Section 7(3) of the 1997 Act ought to be read as 'may' and, therefore, the discretion that is vested in the trial court even not to strike out the defence of the defendant in a suit for eviction in a given case does not appear to have been exercised. According to him, there were genuine difficulties which prevented the defendant from making payment of the balance amount of Rs. 5,700/- within the time extended in terms of the proviso to Section 7(2) of the 1997 Act and this is a fit and proper case where upon setting aside of the order impugned, the trial court ought to be directed to allow the defendant to raise all points in defence that are available to him in law.