Limits of Sec 151 of CPC clarified by the Calcutta High Court

Section 151 of the Civil Procedure Code, 1908 (CPC) preserves the inherent power of civil courts in the matter of a civil suit. Often armed with this power the civil courts issue orders in the aid of justice.

 In case of conflict with some express provision of a statute, whether the ambit of Sec 151 of the CPC would apply was the precise question which has been settled by the Calcutta High Court in one Revision Application C.O. 1847 of 2013 dated 14/05/2015 in the matter of Smt Bina Devi Binani Vs Ramesh Kumar Gupta.

 Facts of the Case

The instant revision application arose out of an eviction suit under West Bengal Premises Tenancy Act, 1997 (Act). The opposite party applied under section 7(2) of the Act before the Civil Judge raising dispute as to the rent payable. The Civil Judge fixed the rate and ordered the opposite party to deposit the rent upto the present date by one month.

 Instead of depositing the amount, the Opposite Party applied before the Civil Court for extending the period of deposit under Section 151 of the CPC on various grounds. The Civil Judge in exercise of powers under section 151 of CPC extended the time limit. The revision application is against this order.

Decision

The Calcutta High Court has interpreted the statutory provision contained in Section 7 of the Act in the light of Supreme Court Judgment Nasiruddin and Ors. Vs. Sitaram Agarwal reported in (2003) 2 SCC 577. This was a case on the same point in respect of Rajasthan Act which provision is same as that of the West Bengal Act. In that Judgment the Hon’ble Supreme Court has decided that the word “Shall” in Section 13 (4) of the Rajasthan (Control of Rent & Eviction) Act, 1950 is mandatory and imperative in nature. Because of the consequences attached to the default in depositing rent to the Civil Court, the word “shall” cannot be construed as implying only a directory nature.

Section 7 of the West Bengal Premises Tenancy Act, 1997 is pari material with Section 13 of the Rahjasthan Act. For the sake of guidance, Section 7 of the Act may be reproduced as follows:

 “When a tenant can get the benefit of protection against eviction.-

(1)(a) On a [suit] being instituted by the landlord for eviction on any of the grounds referred to in section 6, the tenant shall, subject to the provisions of sub-section (2) of this section, pay to the landlord or deposit with [the Civil Judge] all arrears of rent, calculated at the rate at which it was last paid and upto the end of the month previous to that in which the payment is made together with interest at the rate of ten per cent per annum.

(b) Such payment or deposit shall be made within one month of the service of summons on the tenant or, where he appears in the [suit] without the summons being served upon him, within one month of his appearance.

(c) The tenant shall thereafter continue to pay to the landlord or deposit with [the Civil Judge] month by month by the 15th of each succeeding month, a sum equivalent to the rent at that rate.

(2) If in any [suit] referred to in sub-section (1), there is any dispute as to the amount of the rent payable by the tenant, the tenant shall, within the time specified in that sub-section, deposit with [the Civil Judge] the amount admitted by him to be due from him together with an application for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. On receipt of the application, [the Civil Judge] shall, having regard to the rate at which rent was last paid and the period for which default may have been made by the tenant, make, as soon as possible within a period not exceeding one year, an order specifying the amount, if any, due from the tenant and, thereupon, the tenant shall, within one month of the date of such order, pay to the landlord the amount so specified in the order: Provided that having regard to the circumstances of the case, an extension of time may be granted by [the Civil Judge] only once and the period of such extension shall not exceed two months.

(3) If the tenant fails to deposit or pay any amount referred to in sub-section (1) or sub-section (2) within the time specified therein or within such extended time as may be granted, [the Civil Judge] shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the [suit].”  

The Calcutta High Court has placed emphasis on the word “Shall” appearing in Section 7(2) of the Act. This has been construed as implying mandatory import.

In view of this mandatory nature of the statutory provision, all the other provisions of any other statute stands over-ridden. Section 5 of the Limitation Act, 1963 or the power under Section 151 of the Civil Procedure Code, 1908 cannot confer any power on the Civil Court in the aid of the litigant when the statutory provisions have a clear meaning. Only when there is no express provision in the statute in respect of any extension of time limit, the Court may in their discretion grant the extension under Section 5 of the Limitation Act, 1963 or under Section 151 of the CPC.