JUDGMENT
P.K. Chattopadhyay, J.
1. The Instant Second Appeal has been preferred by a tenant and Is directed against the Judgment and decree passed by the learned Additional District Judge, 5th Court, Alipore in Title Appeal No. 190 of 1993 affirming the judgment and decree of the learned Assistant District Judge, 5th Court, Alipore in Title Suit No. 69 of 1991.
2. The appellant is the defendant in the suit filed by the plaintiff, who is the respondent before this Court. The case made out by the plaintiff, in brief, is that the defendant was inducted as a tenant in respect of the suit property at a monthly rental of Rs. 450 payable according to English calendar month. It has been mentioned in the plaint filed by the plaintiff that the defendant is a defaulter since January, 1991 to May, 1991 and the said defendant also caused damages to the tenanted premises by using the varandah as a kitchen even though a separate kitchen is in existence in the suit premises. According to the plaintiff, defendant has also caused nuisance and annoyance to the plaintiff at night under the influence of liquor. The plaintiff, therefore, determined the tenancy of the defendant by a notice to quit, which was duly received by the defendant and since the defendant refused to vacate the premises, plaintiff filed the suit against the defendant for ejectment, recovery of khas possession and mesne profits.
3. The defendant has contested the suit by filling a written statement. The defendant in his written statement denied all the allegations levelled against him by the plaintiff. The defendant specifically stated that no notice to quit was ever received by him from the plaintiff. The defendant not only denied the allegation of the plaintiff in respect of causing damage to the suit property but on the other hand contended that he has repaired the suit premises by spending his own money. The defendant has also stated that the plaintiff has refused to accept the rent from the defendant since January, 1991.
4. It has been specifically contended on behalf of the defendant that the plaintiff has deliberately made the defendant a defaulter in the payment of rent since January, 1991. It has been also stated by the defendant that the plaintiff made false allegations against the defendant as the said defendant refused to satisfy the greed of the plaintiff and accordingly submitted that the suit should be dismissed with costs.
5. The learned Assistant District Judge after considering the pleadings of both the parties and also examining the materials on record found that the defendant was neither guilty for causing any damage to the suit property nor the defendant was guilty for committing nuisance and annoyance as alleged by the plaintiff. However, the learned Assistant District Judge held that the defendant was a defaulter as he did not deposit the last instalment of the arrear rent and the statutory interests thereon within time. Accordingly, the suit was decreed against the defendant and the defendant was directed to vacate the suit premises within three months from the date of delivery of the Judgment. The defendant also filed an application under Section 151 of the Code of Civil Procedure before the learned Assistant District Judge and prayed for condonation of delay in depositing the last instalment of the arrears of rent and the statutory interests. The learned Assistant District Judge dismissed the said application of the defendant filed under Section 151 of Code of Civil Procedure.
6. The defendant/tenant being aggrieved by the aforesaid judgment and decree of the learned Assistant District Judge, 5th Court, Alipore preferred an appeal before the learned Additional District Judge, 5th Court, Alipore. The said Additional District Judge upon hearing the submissions of the respective parties and also considering the evidence on record (both oral and documentary) held that the defendant is not entitled to get benefit of Section 17(4) of the West Bengal Premises Tenancy Act as he failed to comply with the direction passed by the learned Assistant District Judge while disposing of the application filed under Section 17(2)(2A) of the West Bengal Premises Tenancy Act. The learned Additional District Judge accordingly held that the defendant defaulted in making payment of rent for five months within twelve months and accordingly the plaintiff is entitled to get a decree for eviction. The learned Additional District thus affirmed the Judgment and decree passed by the learned Assistant District Judge of the trial Court.
7. Challenging the validity and or legality of the aforesaid judgment and decree of the learned Judge of the Lower Appellate Court affirming the judgment and decree of the learned Assistant District Judge of trial Court the defendant-tenant preferred the instant appeal before this Court.
8. At the time of admission of this appeal, the Division Bench of this Court did not formulate any point Involving substantial question of law and as such before proceeding further with the hearing of the instant appeal following questions are formulated as substantial question of law for the purpose of disposal of the Instant Second Appeal:
1. Have the learned Courts below properly considered the grounds mentioned in the application filed by the defendant under Section 151 of Code of Civil Procedure for condoning the delay in making payment of the last instalment of the arrears of rent and the statutory interests thereon so as to grant necessary relief to the tenant under Section 17(4) of the West Bengal Premises Tenancy Act?
2. Have the learned Courts below correctly held that the defendant defaulted in making payment of rent for five month within twelve months, which entitled the plaintiff to get a decree for eviction?
9. Mr. Subhash Banerjee. learned senior counsel appearing on behalf of the appellant submitted that after the order passed by the learned Assistant District Judge under Section 17(2)(2A) of the West Bengal Premises Tenancy Act, the defendant started depositing the rent for the current months together with the instalment granted by the learned trial Court but due to the act and conduct of the plaintiff the defendant was confused and misled and committed certain Irregularity in payment of last instalment of the arrear rents as well as the statutory interests as determined by the learned trial Court. It has also been contended on behalf of the appellant that the irregularities namely, the delay in depositing the last instalment of the arrear rents as well as the statutory Interests was not on account of any fault or laches on the part of the appellant herein but due to the circumstances created motivatedly and deliberately by the plaintiff the aforesaid irregularities were committed by the defendant. Mr. Banerjee submitted that admittedly the defendant had actually deposited the entire amount towards the arrear rents together with statutory interests in compliance with the direction of the trial Court and the delay was merely technical and in fact such delay was caused under the compelling circumstances created by the plaintiff motivatedly.
10. The learned counsel of the appellant submitted that the learned Judges of the Courts below failed to appreciate the bonafide approach of the appellant in this regard and furthermore did not consider the grounds mentioned by the defendant in the application filed before the learned Assistant District Judge, Allpore under Section 151 of the Code of Civil Procedure all though the circumstances which misled and confused the appellant in payment of the last instalment of arrear rents together with statutory interests thereon were specifically mentioned and explained in the said application.
11. Mr. Banerjee specifically argued that neither the Assistant District Judge of the trial Court nor the Additional District Judge of the Lower Appellate Court took the trouble to consider the grounds narrated by the defendant in the, application under Section 151 of the Code of Civil Procedure for condoning the irregularies arising out of delayed payment of the last instalments of the arrear rents together with statutory interests thereon.
12. According to the learned counsel of the appellant the learned Judges of the Courts below failed to exercise the discretion in an appropriate manner and rejected the said application of the appellant under Section 151 of Code of Civil Procedure without deciding the grounds mentioned therein on merits, The appellant specifically contended that the learned Judges of the Courts below committed error by not considering the grounds mentioned in the aforesaid application and also not deciding the same in the accordance with law following the decisions of this Court as well as by the Supreme Court in this regard.
13. The learned senior counsel of the appellant cited the following decisions in order to explain under what circumstances the Court should exercise Its discretion for condonation of any delay in depositing rent and or extending the time limits for such deposits.
1. 1998 (II) CLJ, Page 14 (Pasupati Nath Auddya v. Shiba Ch. Dhar.)
2. 1988 (I) CLJ, Page 278 (Devokinandan Boobna v. Harasundra Sarkar.)
3. 1987 (II) CLJ, Paragraph 7 (Krishna Gopal Ghosal v. Mihir Baran Nandy)
4. (B.P. Khemka Pvt. Ltd. v. Birendra Kumar)
14. Mr. Hari Narayan Mukherjee, learned senior counsel of the respondent/plaintiff however contended that in view of non-compliance of the specific order of the trial Court, learned Assistant District Judge rightly held that the defendant was not entitled to get the benefit of Section 17(4) of West Bengal Premises Tenancy Act and Mr. Mukherjee also contended that the said decision of the learned Assistant District Judge was rightly affirmed by the learned Additional District Judge of the Lower Appellate Court. Mr. Mukherjee submitted that both the Assistant District Judge of the trial Court and the Additional District Judge of the Lower Appellate Court concurrently held that the defendant has defaulted in the matter of payment of rent for five months within twelve months and the plaintiff is entitled to get a decree for eviction and as such this Court while deciding the second Appeal should not interfere with the aforesaid concurrent findings of fact.
15. Mr. Mukherjee further submitted that the learned Judge of the Lower Appellate Court rightly upheld the decision of the learned Assistant District Judge regarding the dismissal of the application filed by the appellant under Section 151 for condoning the delay in respect of deposits of last Instalment of the arrear rents together with statutory interests thereon.
16. Mr. Mukherjee cited the following decisions in support of his aforesaid contentions:
1. 65 CWN, Page 1239 at page 1242 (Satya v. Suresh)
2. 90 CWN, Page 638 at page 642 (Chandradip Thakur v. Dulal Lal Seal)
3. AIR 1976 Cal 478
(Mannalal v. State)
4. AIR 1990 SC, Page 1009, Paragraph-7, Head Note (Subhash Mehta v. S.P. Choudhary)
5. , Head Note (Kondiba Dagadu Kadam v. Savitribai Sopan Gujar).
17. Having heard the parties and considering the materials on record 1 am of the view that both the learned District Judge and the trial Court dismissed the application of the defendant filed before him under Section 151 of Code of Civil Procedure for condonation of delay in making payment of the last Instalment together with statutory Interests without appreciating the grounds mentioned therein.
18. Learned Assistant District Judge of the trial Court while rejecting the said application of the defendant/tenant filed under Section 151 of Code of Civil Procedure did not deal with specific grounds mentioned therein and from the judgment of the said Assistant District Judge it also does not appear why the grounds mentioned in the application filed under Section 151 of Code of Civil Procedure by the defendant were not acceptable to him. The grounds mentioned by the defendant in the said application under Section 151 of Code of Civil Procedure before the trial Court were neither disbelieved by the learned trial Judge nor the said grounds were adjudged as untenable in the eye of law. The learned Judge of the trial Court without assigning any reason rejected the said application filed on behalf of the defendant/tenant under Section 151 of Code of Civil Procedure. Surprisingly, the learned Additional District Judge of the Lower Appellate Court also upheld the aforesaid decision of the learned Assistant District Judge of the trial Court on the ground that the defendant-tenant did not comply with the direction of the Court. The defendant/tenant filed the aforesaid application under Section 151 of Code of Civil Procedure as he could not comply with the direction of the Court within time by depositing the arrear rents together with statutory Interests and the compelling circumstances which presented the defendant/appellant for making such deposit within time were specifically mentioned in details in the said application under Section 151 of the Code of Civil Procedure. Without considering the grounds mentioned in the said application filed under Section 151 of Code of Civil Procedure by the defendant/tenant and without deciding the same on merits, learned Additional District Judge of the lower Appellate Court mechanically affirmed the decision of the Assistant District Judge on the ground of non-compliance with the direction of the Court. The learned Additional District Judge of the lower Appellate Court failed to appreciate the very basis and or the purpose for filing the aforesaid application under Section 151 of Code of Civil Procedure.
19. The learned Judges of the Courts below did not consider whether any relevant ground has been furnished by the defendant/tenant in his application filed under Section 151 of Code of Civil Procedure for condoning the delay. The Division Bench of this Court in the case of Ramendra Krishna Base v. Manjushree Bhattacharjee reported in 1978 (I) CLJ, Page 393 specifically approved the view of a learned single Judge of this Court that:
“for ends of Justice delay in deposit of rent for one or two months due to circumstances beyond the control of the tenant may be condoned”.
20. Following the decisions reported in B.P. Khemka Pvt. Ltd. v. Birendra Kumar also the decisions of this Court reported in 1988 (I) CLJ, Page 278 and 1996 (II) CLJ, Page 14. I am of the view that the learned Judge of the Lower appellate Court erroneously upheld the decision of the learned Assistant District Judge of the trial Court without deciding the said application of the defendant/tenant on merits after examining the validity and or legality of the specific grounds mentioned in the said application by the defendant/tenant.
21. The decisions cited by Mr. Hari Narayan Mukherjee appearing on behalf of the plaintiff/respondent are clearly distinguishable on facts and those cases have no manner of application in deciding the points raised in the present appeal.
22. Admittedly, the defendant/tenant had deposited the entire amount of arrears rents and statutory interests pursuant to the earlier direction of the trial Court but the defendant did not deposit the last instalment of the arrear rents together with statutory Interests within the time as fixed by the learned trial Court.
23. In my opinion, the learned Judges of the Courts below should have appreciated the reasons furnished by the defendant in explaining the circumstances which confused and misled the defendant in the matter of making the payment of last Instalments of the arrear rents together with statutory interests thereon within the time as fixed by the trial Court.
24. In my view, the learned Judges of the Courts below should have taken a lenient view in the matter and should have allowed the application of the defendant filed under Section 151 of Code of Civil Procedure considering the fact that the defendant had deposited the entire amount together with statutory interests shortly after the due date and therefore it cannot be said that the defendant/tenant Is guilty for non-compliance of Court’s order. There is a qualitative difference between a belated compliance and non-compliance of Court’s order. In a case of belated compliance of Court’s order, if sufficient reasons are furnished explaining the delay in complying with the order of the Court then the Court must accept such explanation and will not pass any order jeopardising or affecting the Interests of a party who admittedly complied with the Court’s direction.
25. Considering the grounds mentioned by the defendant/tenant in the application filed under Section 151 of Code of Civil Procedure for condonation of delay I am satisfied that the defendant/tenant has shown sufficient cause and mentioned adequate grounds in the application filed under Section 151 of Code of Civil Procedure before the Assistant District Judge Alipore and the plaintiff also did not file any objection to the said application questioning the validity of the grounds mentioned therein by the defendant/tenant.
26. Accordingly, 1 hold that the learned Judges of the Courts below failed to exercise the powers under Section 151 of the Code of Civil Procedure in an appropriate manner and erroneously dismissed the said application of the defendant/tenant. Delay in making the payment of arrears rent together with statutory interests has been properly explained by the defendant/ appellant and as such it cannot be held that the defendant has defaulted in the matter of payment of rent for five months within twelve months. The plaintiff is therefore, not entitled to get a decree for eviction.
For the aforementioned reasons, the appeal succeeds and accordingly the same stands allowed. The Judgment and decree passed by both the Courts below are therefore set aside.
The suit filed by the respondent/plaintiff will stand dismissed. Parties will pay and bear the respective costs.
27. Appeal succeeds