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Sm. Sitala Debi Vs. Man Bahadur - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberC.R. No. 1893 of 1970
Reported inAIR1973Cal123,76CWN435
ActsCode of Civil Procedure (CPC) , 1908 - Section 151; ;West Bengal Premises Tenancy Act, 1956 - Section 17
AppellantSm. Sitala Debi
RespondentMan Bahadur
Appellant AdvocateHemanta Krishna Mitra and ;Nirendra Krishna Mitra, Advs.
Respondent AdvocateGian Kaur and ;S.L. Sharma, Advs.
Cases ReferredIn P. Bhattachariee v. Sm. Lakhpati Debi.
- .....filed an application praying for permission to de-posit the rent for may 1969 as also cur-rent rents as they become due. on june 28, 1969, the defendant filed an application under section 17 (2-a) (b) of the said act. admitting that rent was in ar-rear from october 1968 to april 1969 and praying for leave to deposit arrears by easy instalments of rs. 10/- per month as he was in distress being thrown out of employment. the defendant thereafter filed his written statement admitting the default and stated that in view of the deposits of current rent and of his ap-plication under section 17 (2-a) (b) which was pending, he was entitled to protection against eviction. the plaintiff on the same day filed an objection to the said application which was taken up for hearing on september.....

Salil Kumar Datta, J.

1. This Rule is directed against the Order No. 28 dated April 2, 1970 passed by the learned Judge, City Civil Court, Calcutta in Ejectment Suit No. 649 of 1969. The plaintiff instituted a suit on May 15. 1969 for recovery of possession of the suit premises held by the defendant as a monthly tenant according to English calendar month at a monthly rent of Rs. 20/- payable according to the month of the tenancy, on notice to quit. The ground for eviction was default in payment of rent, the rent being in arrears from Oct. 1968. Admittedly the tenancywas governed by the West Bengal Pre-mises Tenancy Act. 1956 hereinafter re-ferred to as the said Act.

2. The summons of the suit was duly served on May 30. 1969 and the defendant entered appearance on June 9 following, praying for time to file writ-ten statement for contesting the suit. On June 12. 1969. the defendant filed an application praying for permission to de-posit the rent for May 1969 as also cur-rent rents as they become due. On June 28, 1969, the defendant filed an application under Section 17 (2-A) (b) of the said Act. admitting that rent was in ar-rear from October 1968 to April 1969 and praying for leave to deposit arrears by easy instalments of Rs. 10/- per month as he was in distress being thrown out of employment. The defendant thereafter filed his written statement admitting the default and stated that in view of the deposits of current rent and of his ap-plication under Section 17 (2-A) (b) which was pending, he was entitled to protection against eviction. The plaintiff on the same day filed an objection to the said application which was taken up for hearing on September 12, 1969. The learned Judge on a consideration of the evidence and materials on record, determined the arrear rent to be Rs. 140/- and interest thereon Rs. 7.53, in ell Rs. 147-53 and the said amount was directed to be deposited by monthly instalments of Rs. 20/- with the current rent by the 15th of the succeeding month. The defendant was directed to produce challans in Court on 15th of every month. In default the order was to be revoked and penal con-sequences would follow.

3. As the challans were not produced, the plaintiff on December 12, 1969 filed an application under Section 17 (3) for striking out the defence. The application came up for hearing on March 4, 1970 when the defendant filed challans. It transpired therefrom that though the instalments as also the amounts payable for months of September and November 1969 were duly deposited in time, instalments as also the amounts for October and December 1969 were deposited out of the time. At that stage the defendant filed an application wherein he submitted that he could not get money from his employer nor arrange money from anywhere and that he was a poor man. Accordingly it was prayed that the court should condone the delay in depositing the rent. It may be noted that the instalment and amount for October 1969 were deposited on November 20. 1969 while the said amounts for December 1969 were deposited on February 4, 1970.

4. The application of the plaintiff under Section 17 (3) and the defendant's application for condonation of the delaycame up for hearing on April 2, 1970. The court on hearing the parties, was of opinion that the application under Section 17 (2-A) and (b) was not vet disposed of which is obviously Incorrect, and also that the Court was entitled to extend the time for making for deposit contemplated by that section. It was further held that if the delay was condoned, it would have the effect of extending the time for deposit. On merits, the Court found that there was no intentional default on the part of the defendant, as it was due to his poverty. The Court accordingly extended the time for deposit of the concerned payments upto the dates of their actual deposits. The plaintiff's application under Section 17 (31 was accordingly rejected by the same Order No. 28 dated April 2. 1970 Against this order the plaintiff obtained this rule.

5. Mr. Hemanta Krishna Mitra, the learned Advocate for the plaintiff petitioner has challenged the order on two counts. His first contention is that the Court has no jurisdiction or power to enlarge the time limit contained in the various provisions under the said Act for making applications or deposits or payments particularly when in absence of compliance with the provisions thereof penal consequence has been provided for. In support he referred to several decisions which will be presently considered. He also assailed the order on merit, and contended that in the circumstances alleged by the defendant, the Court should not have condoned the delay. Mrs. Gian Kaur the learned Advocate of the defendant has on the other hand relied on some decisions in support of her contention that the Court has ample jurisdiction and power to condone the delay in deposit on being satisfied that there was sufficient cause for making the deposits after the dates fixed on the days so done and not earlier. She further contended that on merit also, the Court was justified in granting the tenant's prayer, as the delay was not due to any intentional default on his part but on account of his poverty.

6. We shall now consider the respective contentions of the parties in greater details. There can be no dispute that power and jurisdiction of the Court, under Section 17 and its sub-sections have been expressly provided and the Court is not entitled to travel beyond the same. These are not the inherent or general powers of the Court but are specific powers invested in Court by the said Act for specific purposes. As was noted by me in Mrs Gouri Bose v. Sukumar Ghosh. (1971) 75 Cal WN 342. the Court cannot enlarge the period of deposit and even after its expiry as laid down in Section 148 and provisions of Section 151 or Order 47cannot be invoked to by-pass any provision of Section 17. The question at issue is whether the Court in appropriate circumstances has any power to condone the delay in deposit which, if possible at all, must be under Section 151 in the exercise of the inherent powers of the Court In the decision cited above it has been held that the Court may condone the delay if satisfied that there was sufficient cause for the delayed deposit on the principle of Section 5 of the Limitation Act. which also was held to be applicable to proceedings under Section 17, Mr. Mitra. in effect, challenged the propriety and correctnes of the said decision and required us to examine the position afresh in the light of the judicial authorities cited by him. In view of the controversy that has arisen by other decisions of this Court about the applicability of Section 5 of the Limitation Act to the proceedings under Section 17, we shall consider the point at issue apart from Section 5 of the Limitation Act and its application to the said proceedings linden the said Act.

7. Mr. Mitra referred to the decision in Madhu Sudan v. Rash Mohan, 21Cal LJ 614 = (AIR 1916 Cal 371) inwhich case it was held that where thereis not only an express provision of thelaw but an express provision negativingthe claim of the party, the doctrine ofinherent power of a Court which is recognised by Section 151 of the Code ofCivil Procedure, has no application. Mr.Mitra has contended that in the case before us there is also the negative provision in Sub-section (3i of Section 17 which provides that in default of compliance oforder under its earlier sub-sections, thedefence against delivery of possessionshall be struck off. In the case 21 CalLJ 614 = (AIR 1916 Cal 371) (supra),the trial Court on application of onedecree-holder directed a rateable distribution under Sub-section (1) of Section 73 ofCivil P. C. even though the connected application for execution was made afterrealisation of assets by another decree-holder in his execution. This Court setaside the order, as a rateable distributionis provided in the said sub-section onlywhen the application for the purpose ismade before the receipt of such assets byCourt. The application for rateable distribution was thus competent, as thisCourt held that in view of the positionin law. there was no scope for exerciseof inherent power. In the present case,however, there is no express provisionnegativing the claim itself but only provisions for penal consequence in the eventof non-compliance of the Court's orderwhile the Court again has full liberty tofix the time limit and instalment for deposit. This case, therefore, is of no as-sistance to the petitioner.

8. Mr. Mitra next referred to the decision in Maqbul Ahmad v. Onkar Fratap, AIR 1935 PC 85 in which it was observed :

'It is impossible to hold that in a matter (Section 14(2) 1 which is governed by Act (Limitation Act), an Act which in some limited respects gives the Court a statutory discretion, there can be implied in the Court, outside the limits of the Act. a general discretion to dispense with its provisions'.

It was further held that Section 5 had no application to the facts of the case. On the authority of the above decision, it cannot be disputed that if there is a scope for exercise of limited discretion in an Act. there can be no general discretion dispensing with the provisions of the Act outside the limits of the Act. In our opinion, a condonation of delay in respect of deposits in appropriate circumstances in proceedings under Section 17 will not amount to dispensation of the provisions of the Act outside its limits.

9. Mr. Mitra also referred to the decision Ramani Mohan v. Jogesh Chan-dra. (1953) 57 Cal WN 537 in which it has been held that a tenant. who applies under Section 6 of West Bengal Rent Control (Amendment) Act 1950 and obtains time to make the requisite deposit under Section 18 of the Rent Control Act, 1950, but fails to make the deposit within the time so given, cannot resort to Section 151 of the Code of Civil Procedure to ask for an extension of time, inasmuch as the time so given is final. In this case, we are not concerned with any application for enlargement of time for deposit yet to be made after expiry of the period but with condonation of delay in deposit in certain circumstances.

10. In Mt. Sukra v. Ram Harakh, : AIR1951All195 relied on by Mr. Mitra, the Court held that Section 151 did not justify an order for personal decree in violation not only of the express provision of Order 34, Rule 6 of the Code but also of the decree itself in the case. This case has no application to the facts of the case.

11. The most appropriate case referred to by Mr. Mitra is the decision in Golam Kader v Hazi Lutfar. (1958) 62 Cal WN 858 wherein B. N. Baneriee. J. held that for non-deposit of amount of rent for September. 1957 on October 25, 1957 (when the Court reopened after the long vacation) the provisions of Section 17 (3) were attracted notwithstanding that the deposit was made on 28th, as the tenant according to his case was suddenly taken ill which prevented the deposit being made in time. It was further held that Section 17 (3) contains mandatory provisions and leaves no discretion to the Court and the Court has no power togrant extension of time for deposit or Payment of the amount due under Section 17 (1) of the Act. It may be noted here that while under Section 17 (1). the time limit is fixed by statute, under Section 17 (2-A) (b) the time has to be fixed by the Court on a consideration of the re-levant circumstances.

12. In Dalhousie Properties Ltd. v. The Eastern Japan Trading Co., (19651 69 Cal WN 234. it was held that the Court has no power to extend the period of deposit of rent as provided in the said Act for the period of default upto the month prior to deposit as otherwise there would be violation of the mandatory provisions of the statute. The above principle, in so far as it goes, cannot be disputed.

13. Mr. Mitra lastly relied on the decision in Padam Sen v. the State of Uttar Pradesh. 0065/1960 : 1961CriLJ322 in which the Supreme Court while setting aside the impugned order appointing a Commissioner under Section 151 for seizure of account books of a litigant which could be summoned and adverse presumption drawn if not produced, held that the powers saved by Section 151 are not powers over substantive right which a litigant possesses. In discussing the scope and ambit of Section 151, it was observed :

'The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purpose mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature .....The inherent powers saved by Section 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it. These powers are not powers over the substantive rights which a litigant may possess'.

There can be no dispute that the right of a party to be heard in a matter affecting his interest is a substantive right but at the same time, a statute may lay down a procedure, the default in compliance whereof may entail deprivation of his right to be heard, giving a corresponding right to the other side to proceed in absence of the said defaulting side as if the claim has not been defended. Such right will not be a substantive right but a procedural right, as would appear from the discussions in Northern India Caterers P. Ltd. v. State of Punjab, AIR 1067 SC 1581. As to the intention of the Legislature, the substantive Act XII of 1956 as disclosed in its objects end reasons, inter alia provides for the conditions under which a tenant shall be en-titled to get the benefit of protection against eviction. The obiects of the Act are that the tenant as we have seen has to pay all admitted rent and arrear or as may be determined before he is made entitled to defend the suit against delivery of possession.

14. These are the judicial authorities on which Mr. Mitra has contended that the Court has no jurisdiction under Section 151 to violate mandatory provisions of the statute. Further, the Court again has no power to deprive the plaintiff of a right which has accrued to him by reason of the default committed by the defendant which is incurable in law.

15. Under Section 151. the Court has always the inherent power to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the Court. The exercise of this power has been extended to cover cases where a breach occurs, to the prjudice of a party litigant and to the advantage of the other litigant, not due to any fault or negligence of the defaulting partv but on account of an action or inaction of Court on the principle actus curiae neminem gravabit (An act of Court shall prejudice no one). In Mahomed Akbar Jaman Khan v. Sukhdeo Pande, (1911) 13 Cal LJ 467. the Court was concerned with the question of setting aside a sale and under Order 21, Rule 89. to set aside the sale the aggrieved party has to apply on deoosit of the amount in sale proclamation less any sum received by the decree-holder along with five per cent of the purchase money. Such deposit under Rule 92 has to be made within thirty days of the date of the sale. In that case, the judgment debtor through his agent made an application on the thirtieth day for setting aside the sale and was ready with money to deposit. The challan for deposit was duly filled up and placed for signature of the presiding officer of Court. Later on in the day the party was informed that as the presiding officer had left the Court, his signature could not be obtained on that day. The signature was obtained on the following day when on that authority the money was deposited. Under Rule 92, Sub-rule (1). when inter alia no application under Rule 89 is made with the required deposit within thirty days of sale the Court shall make an order confirming the sale and thereupon the sale shall become absolute. The Court in the said circumstances set aside the sale applying the above principle notwithstanding the mandatory provisions of the Code. Sir Ashutosh Mookerjee. speaking for the Court, observed :

'As Mr. Justice Cresswell put It In Freeman v. Tranah, (1852-12 C B 406) this maxim is founded upon justice andgood sense, and affords a certain guide for the administration of the law. In other words as Lord Justice James observed in Tuffzzool v. Rughoonath, (1871-14 Moo Ind App 40 (51) ) it is the duty or a Judge to be always vigilant- so as not to allow the act of the Court itself to do wrong to the suitor. This principle has been extensively recognised and applied by Courts of justice in this country; and the time within which a partv is required to perform an act has been extended when it could not be performed by reason of action or inaction of Court ..... It may be conceded that themaxim may not be of universal application and may require qualification .....It would in our opinion, be a lamentable failure of justice, if we were to hold that the Court is not competent to do substantial justice in a case of this description. As Lord Penzance observed in Kendall v. Hamilton. 1879-4 AC 504 (525). procedure is but the machinery of the law, after all, the channel and the means whereby the law is administered and iustice reached; it strangely departs from its office when in place of facilitating, it is permitted to obstruct and even extinguish legal rights, and is thus made to govern when it ought to subserve.....'

16. In P. Bhattachariee v. Sm. Lakhpati Debi. (1960) 64 Cal WN 763 the Court was considering a case where the tenant, in a suit for recovery of possession in respect of a tenancy governed by the said Act. claimed to have filed the challan on the 15th. which was last due date and deposited the amount on 17th. 16th being a holiday, P. Chatterjee. J. folow-ing the above decision, held that if there was no fault on the Part of the tenant and it was due to procedural complications, the Court should not take such default into account. The case was accordingly sent back to the trial Court to consider whether there was default on the part of the tenant in making the deposit on 17th,

17. It will thus appear that the Court has recognised relaxations in regard to the provisions of statute, which even may be mandatory in circumstances mentioned above. The Court has also granted reliefs in such cases even though the other party has been thereby deprived of a benefit or right under the mandatory provisions of law. The question that calls for attention is whether there is scope for further relaxations to the provisions of statutes and of a Court's orders passed on the basis thereof in the context of the present day existence. In the modern times in our country as elsewhere people are frequently faced with manifold events which prevent them from pursuing their normal activities, whether connected with official duties or private affairs. To illustrate some -- there maybe a general strike, civil commotion, a failure of communication, a strike or bandh in a particular locality, disrupting and suspending the normal activities of people. There mav be an unforeseen incident or accident preventing a person from proceeding with his activities. In short, as it is impossible to exhaust all circumstances, there may be supervening circumstances which may come into existence in the appropriate time, making it impossible for one to perform his part of activity. A Court of law cannot be blind to such events but has to recognise them and mould its procedure accordingly. We are unable to accept the contention put in the extreme form that the Court has no power in any circumstances to travel beyond the provisions of the statute and the sword of justice has to fall as soon as there is a violation of the provisions of the statute irrespective of any other consideration.

18. It will, however, be for the defaulting Party on the facts of his case to establish that there has been no negligence or inaction on his part in comply-ng with the requirements of the provisions of the statute or of the Court's orders based thereon and the default or failure occurred only because of the supervening circumstances which could not be tided over in spite of his best diligence and further as soon as the obstacles had been removed, he had taken all steps as was required under the law and his conduct in the matter had been bona fide all through. If the Court is satisfied that there has been sufficient cause for such non-compliance within the requisite period, it may treat the delayed compliance as being in terms of the statutory requirement. Each case accordingly will have to be decided on its merits.

19. Mr. Mitra has next argued that in any event, the trial Court, on the facts of the cose exercised his jurisdiction with material irregularity in condoning the delay. The plea for default in compliance is the poverty of the defendant and his inability to procure necessary funds. The defendant did not move the Court or offer his explanation in respect of the delayed deposit till the plaintiff moved for striking out his defence. In his application also filed on March 4, 1970. he complained about the rent for two months of October and December, 1969 and did not mention anything of the instalments due for those months. The explanation, as we have noticed, is his poverty, as he did not 'get money from his employer in time and he could not arrange money from anywhere as he is a very poor man'. Much though we sympathise with his unfortunate position, it is difficult for us to hold that the default has been caused by such supervening circumstance warranting the relief.It is not merely a question of unintentional default as held by the trial Court which impelled it to grant the relief. It must be something more, as indicated above and poverty or incapacity to pay cannot be the only ground for relief in the context of the mandatory provision of the statute when one remembers that rent is a recurring obligation consciously undertaken. The trial Court has thus committed an error in law in condoning the delay and has exercised its jurisdiction with material irregularity in not striking out the defence against delivery of possession and also dismissing the plaintiff's application under Section 17 (3) which calls for our interference In revision.

20. The rule accordingly is made absolute without however any order as to costs and the impugned order is set aside. The application filed by the defendant on March 4, 1970 is rejected and the plaintiff's application under Section 17 (3) filed on December 12 1969 is allowed. The suit will now proceed in accordance with law. Let the records be sent down at any early date.

Sankar Prasad Mitra, J.

21. I agree.

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