CHITRA DAS Vs. KASHI NATH CHAKRABORTY

JUDGEMENT

(1.) The instant application under Article 227 of the Constitution of India is directed against a judgment and/or order dated March 1, 2011 passed by the Additional District Judge, Sealdah in Civil Revision case No. 01 of 2009 affirming the order No. 34 dated August 29, 2008 passed by the Learned Civil Judge (Junior Division), Additional Court, Sealdah in Ejectment Suit No. 400 of 2004. The petitioners herein are the defendants in a suit for eviction filed under Section 6(1) of the West Bengal Premises Tenancy Act, 1997 inter alia on the grounds of default, reasonable requirement and for causing damage to the suit property. In the Plaint, the plaintiff/Opposite Party herein has alleged that the defendant is a habitual defaulter in payment of rent since Falgun 1405 B.S. The suit was filed against the predecessor-in-interest of the petitioners herein. Upon the death of the original defendant, the petitioners herein were substituted in place and stead of the original deceased defendant. On an application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 (herein after referred to as the "said Act"), the learned Trial Judge by an order being No. 25 dated May 31, 2007 directed the defendant to deposit a sum of Rs. 5,538/- on account of arrears of rent with interest within a period of 30 days from the date of the said order.

(2.) After the demise of the original defendant the substituted defendants/petitioners herein fell in great trouble and were unable to maintain the daily family expenses. Since, the substituted defendants could not make arrangements for depositing the amount of arrear rents in terms of the aforesaid order dated May 31, 2007, the substituted defendants/petitioners herein filed an application under Section 151 of the Code of Civil Procedure on July 13, 2007 praying for granting easy installments to the substituted defendants for depositing the arrears of rent. The said application under Section 151 of the Code of Civil Procedure was rejected by the learned Trial judge by an order being No. 27 dated September 10, 2007. The plaintiff/Opposite Party herein filed an application under Section 7(3) of the said Act praying for striking out the defence of the petitioners herein against delivery of possession alleging that the substituted defendants/petitioners herein have failed and neglected to pay the arrears of rent as determined by the learned Trial Judge. Thereafter, the substituted defendants/petitioners herein deposited a sum of Rs. 5,538/- before the learned Trial Judge on August 16, 2008. After depositing the said amount on account of arrears of rent, the substituted defendants filed an application under Section 151 read with Section 148 of the Code of Civil Procedure praying for acceptance of the deposit of arrears of rent made by the substituted defendants on August 16, 2008. It was specifically contended in the said application that on account of the death of the original defendant, who is the husband of the substituted defendant No. 1, the petitioners herein could not arrange the funds for payment of arrears of rent within the time specified in the said order. The ground of poverty was specifically pleaded in the said application. It was further stated therein that the petitioners collected the arrears of rent from the relatives as well as by selling ornaments.

(3.) On August 29, 2008, the learned Trial Judge took up the hearing of the application under Section 151 read with Section 148 of the Code and by an order being No. 34 dated August 29, 2008 rejected the said application upon holding that the deposit of arrear rent of Rs. 5,538/- made by the substituted defendants on August 16, 2008 cannot be regarded as a valid deposit. Thereafter, the application under Section 7(3) of the said Act was taken up for hearing and was allowed by the later part of the said order thereby striking out the defence of the defendants/petitioners herein against delivery of possession. The petitioners herein have challenged the aforesaid order dated August 29, 2008 before the learned Additional District Judge, Sealdah by filing an application under Section 115-A of the Code of Civil Procedure. The learned Additional District Judge by an order dated March 1, 2011 dismissed the said Revisional Application on contest on merit thereby affirming the order being No. 34 dated August 29, 2008 passed by the learned Trial Judge. Both the aforesaid orders passed by the learned Judges of the Courts below have been challenged by the petitioners herein in the instant application under Article 227 of the Constitution of India. Mr. Ghose, the learned Advocate appearing on behalf of the petitioners submits that the learned Judges of both the Courts below failed to exercise their jurisdiction vested on them by not accepting the deposit made by the petitioners herein. He further submits that due to poverty, the petitioners could not make the payment on account of arrears of rent within the time specified in the order dated August 29, 2008. He thereafter submits that the court is not powerless to extend the time for deposit of the arrears of rent even after an adjudication is made under Section 7(2) of the said Act. According to him, the court can exercise its inherent power in unforeseen circumstances to accept the deposit made by a defendant beyond the stipulated time limit. He submits that since the petitioner has already deposited the arrears of rent, though belatedly, the learned Judges of the courts below acted illegally and with material irregularity by refusing to accept the deposit made by the tenant and by striking out the defence of the petitioners herein against delivery of possession.