Ashis Kumar Chakraborty, J. - (1.) In this revisional application, the defendant no. 1(a) and 1(b) have challenged the orders dated February 07, 2012, September 18, 2012, September 05, 2014 and July 08, 2015 passed by the learned Judge, 4th Bench, Small Causes Court at Calcutta in Ejectment Suit No. 198 of 2009.
(2.) The brief facts giving rise to the present revisional application are that the predecessor of the revisional petitioners, Suraj Bali Gupta was the tenant under the opposite party nos. 1 to 3 herein, in respect of the suit property comprising three bedrooms, one drawing room, two bathrooms, one kitchen and two lavatories on the ground floor of premises No. 32/12, Beadon Street, Kolkata at monthly rental of Rs. 230/-. In the year 2009, the opposite party nos. 1, 2 and 3, the plaintiffs filed the suit against the said Suraj Bali Gupta, claming a decree for eviction and recovery of possession of the suit property on, inter alia, the grounds of default in payment of rent, wrongful subletting of the suit property and reasonable requirement of the suit property. Subsequently, the present proforma opposite party no. 4, the subtenant was impleaded in the suit as the defendant no. 2. During the pendency of the suit, the defendant no. 1 Suraj Bali Gupta died leaving behind the present petitioners and the proforma opposite party no. 5 as his heirs and legal representatives, who were substituted in the suit as the defendant nos. 1(a), 1(b) and 1(c). The eviction suit was filed by the plaintiffs under the West Bengal Premises Tenancy Act, 1997 (in short "the Act of 1997") and the present petitioners, (hereinafter referred to as "the defendants") filed applications before the learned Court below under Sections 7(1) and 7(2) of the Act of 1997. In the application under Section 7(1) of the Act of 1997, the petitioners prayed for an order for allowing them to deposit monthly rent from the month of May, 2011 of Rs.230/- for the suit property in the learned Court below. In the application under Section 7(2) of the Act of 1997, the petitioners admitted to have defaulted in payment of rent for the suit property for certain months but, prayed before the learned Court below to ascertain as to whether there is any default on their part in payment of rent and to allow them to deposit the arrear rent, if any, by way of instalments at the rate of Rs.230/- per month. The plaintiffs contested the said application. By an order dated November 22, 2011, the learned Court below fixed the hearing of the application under Section 7(2) of the Act of 1997 on January 19, 2012. On January 19, 2012 the hearing of the said application was concluded by the learned Court below and the next date was fixed on February 07, 2012 for passing the final order in the said application. On February 07, 2012 the learned Court below disposed of the said application under Section 7(2) of the Act of 1997 by holding that there is default of payment of rent by the defendants for 330 months from July 1984 to December, 2011 and directed them to pay the arrear rent for the said 330 months, together with statutory rate of interest at the rate of 10% per annum amounting to Rs.83, 490/- within March 07, 2012. By the said order, the learned Court below also directed the defendants to pay the current rent, month to month within 15th day of each succeeding month and fixed the next date on March 07, 2012 for payment of the said arrear rent by the defendants and for framing of issues in the suit. On March 07, 2012, the defendants did not pay the said amount of Rs.83, 490/- to the plaintiffs but filed an application, under Section 151 of the Code of Civil Procedure, 1908 (in short "the Code") before the learned Court below praying for, an order that the said order dated February 07, 2012 be not given effect to for a further period of four weeks. In the said application, the defendants alleged that they were informed by their learned advocate that March 07, 2012 was the date for filing of the challans and they did not have any knowledge or information of the said order dated February 07, 2012. The said application was not verified by any of the defendants and it was their alleged Tadbidkar who verified the said application. By an order dated March 07, 2012 the learned Court below although rejected the prayer of the defendants in the said application but extended the time for payment of the said sum of Rs. 83,490/- by the defendants till April 02, 2014. The defendants did not challenge the said order dated March 07, 2012 before any higher forum. However, on March 26, 2012, the defendants filed another application before the learned Court below, under Section 151 of the Code, read with Section 5 of the Limitation Act for recalling of the said order dated February 07, 2012 alleging that they were informed by their advocate that hearing of the application under Section 7(2) of the Act of 1947 was fixed on March 07, 2012 and, as such, they were not present before the learned Court below on February 07, 2012. By order dated September 18, 2012 the learned Court below rejected the said application of the defendants for recalling of the order dated February 07, 2012. The defendants did not challenge the said order dated September 18, 2012, before any higher Court, nor did they make payment of the said sum of Rs.83, 490/-. Since the defendants did not pay the arrear rent, together with statutory rate of interest to the plaintiffs, as directed by the learned Court below in the application under Section 7(2) of the Act of 1997, the plaintiffs filed an application under Section 7(3) of the Act of 1997 for striking out of the defence of the defendants in the suit against delivery of possession. The said application was contested by the defendants. By order dated September 05, 2014 the learned Court below held that the defendants did not pay the arrear rent in terms of the order passed in the application under Section 7(2) of the Act of 1997 and, as such, allowed the said application of the plaintiffs-opposite parties under Section 7(3) of the Act of 1997 by striking out of the defence of the defendants against delivery of possession. None of the defendants challenged the said order dated September 05, 2014 before any higher Court. The defendants, however, on December 02, 2014 filed another application under Section 151 of the Code, before the learned Court below, for recalling of the orders dated February 07, 2012 and September 05, 2012. By Order dated July 08, 2015 the learned Court below rejected the said application. In the present revisional application, filed on September 21, 2015 the defendant nos. 1(a) and 1(b) have sought to challenge all the said orders dated February 07, 2012, September 18, 2012, September 05, 2012 and July 08, 2015.
(3.) At the very outset of hearing of this application Mr. Rupak Ghosh, learned advocate appearing for the opposite parties plaintiffs raised strong objection with regard to the maintainability of this revisional application. He contended that when the decision of the learned Court below in the application under Section 7(2) of the Act of 1997 had attained finality and the petitioners did not pay the arrear rent within the extended time fixed by the learned Court below, the plaintiffs were entitled to move the application under Section 7(3) of the Act of 1997 for striking out the defence of the defendants in the suit against delivery of possession. According to him, when the application under Section 7(3) of the Act of 1997 was allowed, the challenge of the defendants in this revisional application against the orders dated February 07, 2012 and September 18, 2012 passed by the learned Court below is not maintainable. It was further submitted that when the learned Court below had no discretion to refuse to allow the application under Section 7(3) of the Act of 1997, even the defendants' challenge to the orders dated September 15, 2014 and July 08, 2015 passed by the learned Court below in this application is not maintainable.;