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Bijoli Rani Saha @ Bijali Saha v/s Prabal Basak

Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- PRABAL PRIVATE LIMITED [Active] CIN = U74899DL1964PTC004294

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- K K SAHA AND CO PVT LTD [Strike Off] CIN = U51109WB1938PTC009499

Company & Directors' Information:- L C SAHA PVT LTD [Strike Off] CIN = U32305WB1935PTC008249

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

Company & Directors' Information:- P. BASAK & CO PVT LTD [Strike Off] CIN = U35921WB1955PTC022298

    C.O. No. 2620 of 2017

    Decided On, 04 December 2017

    At, High Court of Judicature at Calcutta


    For the Appellant: Hiranmay Bhattacharya, Sandeep Kumar Tiwari, Advocates. For the Respondent: Vijay Nand Misra, Trisha Laha Seal, Advocates.

Judgment Text

1. Affidavit of service filed in Court today be kept on record.

2. This revisional application is directed against Order no. 68 dated 19th April, 2017 passed by learned Judge, 3rd Bench, Small Causes Court at Calcutta in Ejectment Suit No. 36 of 2004, inter alia, on the ground that the learned Trial Court acted illegally and with material irregularities in exercise with its jurisdiction vested in it in rejecting the petitioner's application under section 151 of the Code of Civil Procedure without considering the facts that the petitioner was/is all along ready and willing to make the payment of 50% share of the rent in the learned Court below and the petitioner has already made the payment of the 50% share of the rent. Accordingly, the petitioner has prayed for setting aside the order impugned as bad in law and in fact.

3. The petitioner is a monthly tenant in respect of the suit premises payable according to the English calendar month. The plaintiffs/opposite parties filed Eviction Suit before the learned Trial Court for recovery of khas possession that the defendant/petitioner entered appearance and filed an application under Section 7(1) of the West Bengal Premises Tenancy Act, 1997 with a prayer for an order to permit him to deposit the rent for the month of October, 2005 and the arrear rent, if any, together with interest being the rent @ Rs. 45/- per month. The petitioner also filed an application under Section 7(2) of the Act praying for determination of the quantum of rent and the relationship between the landlord and tenant and upon objection being submitted on behalf of the plaintiffs/landlords against the aforesaid application the application was taken up for hearing and was decided by the order dated 1st February, 2012 whereby the learned Trial Court directed the petitioner/defendant to deposit the arrears of rent determining the quantum of rent at the rate of Rs. 100/- per month.

4. Challenging that order the petitioner preferred an application under Article 227 of the Constitution of India and the same was registered as C.O 1869 of 2012, which was disposed of by a coordinate bench of this Hon'ble Court directing the petitioner to deposit 50% of the arrear rent and the operation of the order dated 1st February, 2012 was stayed till the disposal of the revisional application. Pursuant to that order the petitioner deposited 50% of the arrear rent being Rs. 19085/-, which would appear from annexure-H. The said revisional application was disposed of with the following direction:-

"The learned Court below shall reconsider the amount of rent for the aforesaid period. It is on this limited point that the learned trial Judge shall re-consider the question of arrears of rent after permitting the petitioner-defendant to produce the rent receipts for the said period i.e. with effect from February, 1983 to May 2000. If it is found that even on the production of such rent receipts, the impugned order is otherwise sustainable and such objection was only to delay the matter, it would be open for the learned trial Judge to pass the same order and view it is earlier found. In that case, the petitioner should be saddled with heavy cost.

Learned trial Judge is requested to dispose of the said issue with regard to the determination of rent under Section 7(2) of the 1986 Act within a period of three months from the date of communication of this order without granting any unnecessary adjournment to either of the parties."

5. Thereafter on remand the learned Trial Court by its order dated 14.5.2013 had reconsidered the application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 and found that the rate of rent has been truly reflected in the rent receipt dated 06.1.1983, which is at the rate of Rs. 100/-. Accordingly, the learned Trial Court found that the previous order passed by the Court was sustainable and further observed that the defendant was delaying the matter. The defendant, the present petitioner herein, was found to be a defaulter in payment of rent from February 1983 to May 2000. The rate of rent was adjudged to be Rs. 100/- per month and accordingly the defendant/petitioner was directed to deposit the said amount of Rs. 38,170/- as already determined by this Court vide order dated 1st February, 2012 within a month of the order fixing the date as 02.7.2013 for framing of issues and payment of cost. The said order was passed in presence of both the parties. But the petitioner had failed to comply with the Court's order. It is true that he had deposited 50% of arrears rent adjudicated by the Trial Court as per the direction of this Hon'ble Court. But in stead of complying the Court's order in depositing the arrear rent in full the petitioner went on for a considerable period of time and he came out with an application under Section 151 only on 07.9.2016 saying that he does not dispute the rate of rent adjudicated by the trial but since he has already deposited 50% of the total arrear, he may be permitted to deposit the rent. There is no contention before this Court that the defendant/petitioner is complying with the Court's order by depositing of current rent. Even current rent, as per her own understanding @ Rs. 45/- per month, has never been deposited.

6. It is submitted by the petitioner that she has already deposited 50% of arrears rent of Rs. 19085/- out of Rs. 38,170/- inclusive of interest as calculated from the period of February 1983 upto December 2011 but due to inadvertent mistakes on the part of the learned lawyer the defendant/petitioner failed to deposit the balance 50% amount being the sum of Rs. 19085/- as directed by the learned Judge, 3rd Bench, in the order dated 14.5.2013 passed in connection with the said suit.

7. It is further submitted that the petitioner/defendant engaged one Mr. Ajoy Sankar Sanyal, advocate, to look after the case in all respect but the fact remains due to inadvertent and mistakes on the part of the learned lawyer the defendant has failed to comply with the order dated 14.5.2013. Such explanation to comply with the Court's order is not sufficient. Learned advocate has to act according to the instruction received from his client. Since there was no instruction on the part of his client it was not possible for him to act on his own to comply with the order passed by learned Trial Court on behalf of his client, the petitioner herein. This is not the explanation of the petitioner that the petitioner had already deposited 50% of arrears rent by way of challan. Therefore, the explanation, as expressed in the application under Section 151 C.P Code by the petitioner/defendant, is not reasonable and sufficient and it is aimed at delaying the trial of the c

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ase. 8. Therefore, having regard to the order impugned this Court does not find any ground to interfere with the application bearing in mind the decisions in the case of M/s. Venus Drug Centre v. Dinabandhu Hajra, reported in 2016(1) CLJ (Cal) 551, Bina Devi Binani v. Ramesh Kumar Gupta (since deceased) by Kiran Gupta, reported in 2016(5) CHN (CAL) 376 and Nasiruddin v. Sita Ram Agarwal, reported in (2003)2 SCC 577, as cited by the learned advocate for the opposite parties. 9. Accordingly, CO 2620 of 2017 is dismissed. 10. There shall, however, be no order as to costs. 11. Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all necessary formalities.