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Debi Prosad Trivedi and ors. Vs. Deb Kumar Singhi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberC.O. No. 594 of 1981
Judge
Reported inAIR1981Cal254,(1981)2CompLJ34(Cal),85CWN911
ActsCode of Civil Procedure (CPC) , 1908 - Sections 148 and 151
AppellantDebi Prosad Trivedi and ors.
RespondentDeb Kumar Singhi
Appellant AdvocateSaktinath Mukherjee and ;Pradipta Roy, Advs.
Respondent AdvocateMukul Prokash Banerjee and ;Jayanta Dasgupta, Advs.
DispositionApplication dismissed
Cases ReferredIndrapuri Studio v. Shanti Debi
Excerpt:
- .....the period within which the same is to be deposited starts. it is true that the defendant got two days' time to deposit the amount after it was specified in the decree on february 8, 1980, but the defendant did not get the benefit of the entire period of 15 days which the court allowed him for making the deposit. in other words, the learned subordinate judge considered that a period of 15 days was required by the defendant to make the deposit. the learned subordinate judge, in our opinion, should have calculated the amount of costs and also the amount of interest and specified the same in the judgment so as to enable the defendant to deposit the same within a period of 15 days from the date of the decree, that is, the date of judgment. the non-specification of the amount of costs and.....
Judgment:

M.M. Dutt, J.

1. This application under Section 115 of the Code of Civil Procedure is at the instance of the plaintiffs and it is directed against order No. 18 dated January 30, 1981 of the Subordinate Judge, Second Court, Alipore.

2. The defendant opposite party is a tenant of the plaintiffs in respect of the suit premises being Flat No. 5 in the front portion of the second floor of premises No. 14/4, Gariahat Road, Calcutta under a registered Indenture of lease for a period of 21 yean commencing from May 21, 1972 at a rental of Rs. 500/- per month payable according to the English Calendar month. The lease provides for the determination of the same by forfeiture for non-payment of rent. As the defendant committed defaults in payment of rent, the plaintiffs instituted the said suit for eviction of the defendant on the ground of determination of lease by forfeiture for nonpayment of rent.

3. The defendant made an application under Section 114 of the Transfer of Property Act praying for relief against forfeiture. He admitted the default in payment of rent since December 1977 and expressed his willingness to deposit in Court all arrears of rent with interest at the rate of 6% per annum and costs of the suit within 15 days. The learned Subordinate Judge came to the finding that the defendant was not a wilful defaulter despite the defaults in payment of rent on two earlier occasions as alleged by the plaintiffs. In that view of the matter, the learned Subordinate Judge held that the defendant should be granted relief againil forfeiture under Section 114 of the Transfer of Property Act as a last chance, but he must deposit all arrears of rent with 6% interest per annum thereon and all costs of the suit within 15 days from the date of the decree. Accordingly, by his judgment dated January 24, 1980, he decreed the suit with full costs. It was directed that the plaintiffs would get a decree for arrears of rent since December 1977 amounting to Rs. 14,690/- with interest at the rate of 6% per annum plus full costs of the suit. The defendant was directed to pay the decretal amount within 15 days from the date of the decree failing which, it was further directed, the plaintiffs would be at liberty to execute the decree for ejectment and recover possession of the suit premises. If, however, the defendant would deposit in Court the decretal dues within the stipulated period, it would be deemed that the forfeiture of the lease of the suit premises on the ground of default had not occurred.

4. On February 6, 1980, the decree was drawn up and signed and on February 8, 1980, the period of 15 days for the deposit of the decretal amount by the defendant as directed by the learned Subordinate Judge in the decree, expired on February 8, 1980. The defendant deposited the decretal amount in terms of the decree on February 11, 1980, that is, three days out of time. As the defendant did not make the deposit within the period of 15 days from the date of the decree, the plaintiffs put the said decree into execution in Title Execution Case No. 12 of 1980. The defendant made an application under Section 47 read with Sections 148 and 151 of the Code of Civil Procedure contending inter alia that as the decree was drawn up on February 6, 1980, he could not deposit the amount as directed, for he was not aware of the amount of costs that was decreed. Further, it was contended that he honestly believed that the decretal amount could not be deposited before the decree was drawn up. In other words, his contention was that the period of 15 days should be calculated from the date of signing of the decree, and that he having deposited the decretal amount on February 11, 1980, that is, within 15 days from the date of drawing up of the decree, the deposit was made quite within time. In the alternative, it was prayed by the defendant that in case it was found that the said deposit was not made within the time allowed, the delay might be condoned. The said application of the defendant was opposed by the plaintiffs by a petition of objection.

5. The learned Subordinate Judge by the impugned order No. 18, dated January 30, 1981 overrated the contention of the defendant that the period of 15 days should be computed from the date of signing of the decree. He, however, condoned the delay of three days in making the deposit toy the -defendant in exercise of inherent power under Section 151 read with Section 148 of the Code of Civil Procedure. Hence this Application for revision.

6. Mr. Saktrnath Mukherjee, learned Advocate appearing on behalf of the plaintiffs petitioners submits that the learned Subordinate Judge bad no jurisdiction to condone the delay of the defendant in making the deposit. It is contended by Him that after the learned Subordinate Judge directed that in default of the deposit the plaintiffs would be entitled to execute the decree and recover possession of the suit premises, or in other words, the consequence that would take place for the default in compliance with the direction to deposit having been directed in the decree itself, the learned Subordinate Judge became functus officio and had no jurisdiction to accept the deposit by condoning the delay.

7. In support of the said contention Mr. Mukherjee has placed strong reliance on a Bench decision of this Court in Bokaro and Ramgur Ltd. v. The State of Bihar, : AIR1965Cal308 . It has been held in that case, that where a decree is passed on condition that if a certain sum of money be put in within a specified time, the suit would stand decreed and in default thereof the suit would stand dismissed, after ihe expiry of the time limited by the decree, the Court loses seisin over the matter and cannot extend the time. This proposition of law was laid down in that case by following the decision in Bhut-nath Das v. Sahodeb Chaudra Panja, : AIR1962Cal485 where it has been further observed that if the Court has lost seisin of the case altogether there is no scope for the application of Section 151 of the Code of Civil Procedure, and that it is only if the Court has retained jurisdiction in the litigation that the question of making any order in the exercise of inherent jurisdiction arises. Further, it has been observed that if jurisdiction has already ceased to exist the scope of making an order in the exercise of inherent jurisdiction of the Court totally disappears. In the instant case also, the Court lost seisin of the case and, accordingly, in view of the decision in Bhutnath Das's case : AIR1965Cal308 (supra), there was no question of exercising inherent jurisdiction under Section 151 of the Code of Civil Procedure.

6. Mr. Mukul Prakash Banarjee, learned Advocate appearing on behalf of the defendant has placed reliance on a decision of the Supreme Court in Mahanth Ram Das v.Ganga Das, : [1961]3SCR763 . In that case, while deciding an appeal in favour of the appellant, the High Court passed a peremptory order fixing the period for payment of deficit court-fee directed that if the amount of court-fee was not paid within the time given, the appeal would stand dismissed. If, however, the court-fee was paid within the time given, the appeal would be allowed with cost. The appellant made an application for extension of time before the time fixed had expired, but the application came up for hearing after the period had run out. It was held by the Supreme Court that the High Court was not powerless to enlarge the time even though it had peremptorily fixed the period for payment. In that connection, the Supreme Court observed as follows: (at p. 883)

'Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed. For example, it cannot be said that, if the appellant had started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves the day previous, he could not 'ask for extension of time, or that the Court was powerless to extend it.'

The above observation is of no help to the defendant, for the Supreme Court has expressly kept conditional decrees out of the benefit of the said observation in condoning the delay by the Court. The same view has also been expressed in a decision of the Division Bench consisting of P. N. Mookerjee and A. K. Dutt, JJ. in Indrapuri Studio v. Shanti Debi, 71 Cal WN 1034.

9. The question, therefore, is whether in view of the fact that the learned Subordinate Judge lost seisin of the suit after he had passed the conditional decree, he was justified in condoning the delay in making the deposit by the defendant. All the above principles, in our opinion, will not apply when the delay in complying with the order of the Court or the direction in the decree has occasioned due to the default of the Court. It is an well established principle of law that no one should suffer on account of default of the Court. Indeed, Mr. Mukherjee in his usual fairness has conceded this principle of law.

10. In the instant case, by his judgment the learned Subordinate Judge granted to the defendant a period of 15 days in making the deposit The learned Subordinate Judge only specified the amount of arrears of rent which the defendant was to deposit, but the amounts of interest and costs were not calculated and specified in the judgment. So long as all the amounts which the defendant was directed to deposit were not specified, it was not possible for the defendant to deposit the same. For the first time, in the decree that was drawn up and signed on February 6, 1980, the amounts of interest and costs were specified and the defendant deposited the total amount on February 11, 1980, that is, within 18 days from the date of the decree. In our opinion, when the Court directs a party to deposit a sum of money, which is yet to be calculated, within a certain period, the Court should specify the sum before the period within which the same is to be deposited starts. It is true that the defendant got two days' time to deposit the amount after it was specified in the decree on February 8, 1980, but the defendant did not get the benefit of the entire period of 15 days which the Court allowed him for making the deposit. In other words, the learned Subordinate Judge considered that a period of 15 days was required by the defendant to make the deposit. The learned Subordinate Judge, in our opinion, should have calculated the amount of costs and also the amount of interest and specified the same in the judgment so as to enable the defendant to deposit the same within a period of 15 days from the date of the decree, that is, the date of judgment. The non-specification of the amount of costs and the amount of interest in the judgment and at the same time, directing the defendant to deposit the arrears of rent with such interest and costs, which were yet to be calculated, within a period of 15 days from the date of the judgment, and granting the plaintiffs the liberty to execute the decree for ejectment on the failure of the defendant to pay the said amounts, in our view, tantamounted to a default of Court for which the defendant should not be made to suffer. In the circumstances, the learned Subordinate Judge was perfectly justified in condoning the delay of the defendant in making the deposit.

11. For the reasons aforesaid, the impugned order of the learned Subordinate Judge is affirmed and the application is dismissed. There will, however, be no order forcosts.

A.K. Sarkar, J.

12. I agree.


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