M.K. Basu, J. - (1.) THIS revisional application has been directed against the judgment and order dated 7th August, 1992 passed by the learned Additional District Judge, 5th Court, Alipore in R.C. Appeal No. 4 of 1991 whereunder learned Judge dismissed the appeal in affirmation of the judgment dated 1.1.1991 of the Rent Controller in Calcutta in R.C. Case No. 348 of 1988. By that judgment the learned Rent Controller dismissed the petitioner's application under Section 7 of the West Bengal Premises Tenancy Act, 1956.
(2.) BEING aggrieved by the said judgment of the learned Additional District Judge, Alipore, the tenant-appellant has preferred the present Revisional Application under Article 227 of the Constitution of India challenging the same as erroneous, illegal and unsustainable. The case of the petitioner-tenant in brief is that he has been a tenant in respect of the first floor of premises No. 57A, Linton Street, Cal-14 under the landlord-opposite party since 1955 at a monthly rental of Rs. 49.50. Since the inception of the tenancy the tenant was enjoying electricity from the meter installed in his name and the electricity which he used to enjoy was D.C., later after 1978 he applied before the CESC for conversion of the D.C. Meter into A.C. But at this time the opposite party-landlord refused to give her consent for such conversion of the D.C. Electric Meter into A.C., unless he paid a higher sum towards rent and in this way having been compelled under the circumstances in order to obtain consent of the landlord/landlady, he agreed to pay rent at an enhanced rate of Rs. 200/-per month and continued to pay the rent at such rate. Since such enhancement of the rent was illegal, he preferred an application under Section 7 of the W.P.P.T. Act before the Rent Controller for refund of the entire amount paid by him in excess of the earlier rent, namely, Rs. 49.50. He filed that application on 1st October, 1988 while the first payment of the said enhancement as made for the month of April, 1988. There was thus delay in the matter of filing of this application for about a month. The opposite party-landlord did not appear before the Rent Controller even after receiving the notice and hence the case was taken up for ex-parte hearing by the Rent Controller and after taking evidence of the petitioner-tenant both oral and documentary he disposed of the case by dismissing the application ex-parte on 1.1.1991. The reasons which weighed with the learned Rent Controller in coming to such a finding was mainly that the rent receipt for the month of April, 1988 could not be produced by the applicant-tenant wherefrom his alleged first payment at the enhanced rate of rent could be shown and the rent receipt that was produced by the applicant was for the month of October, 1988 dated 1st November, 1988, whereas the application was filed one month prior to that date. In such premises, it was held by the learned Rent Controller that the applicant had failed to show that any cause of action arose as alleged on the date of the said application under Section 7 of the Act. Being aggrieved by this order the petitioner preferred an appeal before the learned District Judge, Alipore before whom the opposite party-landlord entered appearance and contested the said appeal. However, during hearing of this appeal before that Appellate Tribunal the petitioner was allowed to file the rent receipt for the month of April, 1988 in question as an additional piece of evidence in view of the reason pleaded by him that the said document had been misplaced and not available at the time of the hearing before the Rent Controller and that document was admitted into evidence in presence of and on consent given by the landlord-opposite party and it was marked exhibit-1. The learned Additional District Judge after hearing both sides and considering all the points argued, dismissed the appeal by his judgment dated 7th August 1992 on a number of grounds. First he held that the original R.C. case before the Rent Controller had been filed out of time, that is to say, after expiry of six months from the date of first payment at the enhanced rate of rent. For, according to the learned Judge, under Section 7(1) of the Act it was provided that such an application was to be filed within six months from the date of such payment in contravention of a any provision of the Act as alleged. In the present case the application was filed on 1st October, 1988 while the applicant-tenant started paying rent at the enhanced rate on and from April, 1988, exceeding the period of six months as fixed under the above section and since absolutely no explanation had been offered by the applicant for such delay, the application was clearly barred by limitation. Secondly, the learned Judge also found that the application on merits also was liable to be dismissed, inasmuch as, the enhanced amount was agreed upon by both the parties and not unilaterally imposed upon the tenant by the landlord and under such circumstances the provisions of the Section 7 were not attracted. Lastly, it was further found by the learned appellate Court that considering the floor area, namely, about 1300 sq. feet which the tenant was occupying in the first floor of the house consisting of three bed rooms, one dining room, one covered varandh, a stair case, one 'L' shaped covered varandh, one kitchen and one bath-cum-privy, it could not be said that the amount of Rs. 200/- at that point of time was at all excessive or inflated; on the other hand such amount of rent could be well considered to be a fair rent and hence relying upon the reported judgment of the Apex Court in to the effect that Court might take judicial notice in respect of increased rent of tenanted premises of the fact that there was universal escalation of rent, he came to the finding that the learned Rent Controller was justified in dismissing the petition of the applicant under Section 7 of the Act.
(3.) MR.Gouranga Chatterjee appearing on behalf of the opposite party argues that this Revisional Application under Article 227 of the Constitution of India is legally maintainable since under that provision of the Constitution an order passed by an Appellate Tribunal can be challenged before this Court in so far as its legality or propriety is concerned. In support of this contention he refers to the decisions reported in (1) 1968 Cal. 170, (2) 64 CWN 152. As regards the question of maintainability of this application under Article 227 of the Constitution I have no hesitation to hold that in view of the principles enunciated in these judgments the maintainability of this application is not in any way affected. Regarding the question of limitation in the matter of filing of the concerned application under Section 7 of the WBPT Act, I do not find any fault with the decision of the Appellate Tribunal below in view of the fact that in the application no reason whatsoever has been assigned by the petitioner in order to explain away the delay in filing of the said petition and in such circumstances the extent of the delay that is to say whether it is large or small will not be very material, because it is the mandatory provision of Section 7 that such an application has to be filed within this specified time limit.;