In re : National Instruments Ltd. v. . — 1989 DIGILAW 41 (CAL)

ORDER The petitioner company is a tenant under the opposite party in respect of a flat on the first floor of the premises no. 40B, Gariahat Road, Police Station Jadavpur, Calcutta-700 031 at a rental of Rs.515/- per month payable according to the English Calendar. The petitioner's case is that it was inducted as a tenant in respect of the said flat in the year 1975 as per the tenancy agreement, which is Annexure 'A' to the revisional application. In the said tenancy agreement, it is provided inter alia, that the tenancy would be in respect of the entire first floor (east) of the premises no. 40/B, Gariahat Road (South), Calcutta-700 031 including garage space of the said premises no. 40/B, Gariahat Road (South) Calcutta-700 031. The petitioner has provided its officers in the said flat as the said tenancy was taken by the petitioner for accommodating its officers therein. The further case of the petitioner is, that it was in the year 1984, after the retirement of the officer of the petitioner company, who was provided with the said flat as his accommodation during his tenure of service, the new allottee was not allowed to enter into the said flat by the opposite party. A complaint was lodged before the police and ultimately the said new allottee was allowed to take possession of the said flat but the said garage space was denied to the petitioner company and also to the new allottee. Subsequently, in the year 1986, the landlord opposite party flied Title Suit No. 152 of 1986 in the Second Additional Court of the learned Munsif at Alipore for eviction of the petitioner company from the disputed flat on the ground of reasonable requirement but not on the ground of default. The petitioner duly entered appearance in the suit and started depositing rent and it is the case of the petitioner that uptil now the petitioner is not a defaulter in payment of rent. The petitioner duly entered appearance in the suit and started depositing rent and it is the case of the petitioner that uptil now the petitioner is not a defaulter in payment of rent. The petitioner also filed an application under s. 17(2) of the West Bengal Premises Tenancy Act in the said suit claiming abatement of rent and praying for determination of proportionate rent on the ground that the garage space was denied to the petitioner since 1984 and/or the petitioner, due to the act of the opposite party, was not in occupation in respect of the entire extent of its tenancy in the disputed premises since that date. The said application was opposed by the opposite party by filing written objection denying and disputing the allegations made by the petitioner in the said application. The learned Munsif, ultimately, by the impugned order dated August 8, 1988 disposed of the said application under s. 17(2) of the West Bengal Premises Tenancy Act inter alia upon a finding that the scope of the provisions of s. 17(2) of the West Bengal Premises Tenancy Act was very limited and by the said provisions, the Court is only called upon to decide the rate of rent or the amount payable against default, if any or whether there is relationship of landlord and tenant between the parties and since the petitioner did not raise any dispute regarding the rate of rent as it was not a defaulter in payment of rent, the dispute as raised by the petitioner regarding the question whether the garage space was included in its tenancy and whether it had been denied of such space, was not within the scope of s. 17(2) of the West Bengal Premises Tenancy Act. It was a matter to be gone into during trial and that the petitioner virtually had asked for re-fixation of rent in the guise of abatement of rent, which does not fall within the purview of s. 17 (2) of the West Bengal Premises Tenancy Act. Against the said order, the petitioner has filed the present revisional application. 2. Mr. It was a matter to be gone into during trial and that the petitioner virtually had asked for re-fixation of rent in the guise of abatement of rent, which does not fall within the purview of s. 17 (2) of the West Bengal Premises Tenancy Act. Against the said order, the petitioner has filed the present revisional application. 2. Mr. Chatterjee, learned Advocate for the petitioner, submits that the question of abatement of rent is a dispute which falls within the purview of s. 17(2) of the West Bengal Premises Tenancy Act, and when such a dispute has been raised, the court below is to resolve such dispute while disposing of the application under s. 17(2) of the West Bengal Premises Tenancy Act and, in the present case, since the court below did not resolve that dispute and merely shifted such disposal at the time of trial, he ought to have shifted the hearing of the application under s. 17(2) of the Premises Tenancy Act at the time of trial also and the findings of the court below that the question of abatement of rent is not within the scope of s. 17(2) of the West Bengal Premises Tenancy Act is therefore wholly erroneous and the court below thus refused to exercise jurisdiction in the matter. 3. Mr. Ghosh, learned Advocate for the caveator-opposite party, however, submits that although it was alleged by the petitioner that since 1984 the petitioner company was denied of the garage space, no objection was ever raised by the petitioner company against such denial nor the petitioner company did take any steps under the law for getting back possession of such alleged steps on the contrary, the petitioner company all along paid rent, as agreed by and between the parties and is still depositing rent at the agreed rate in Court and, as such the plea of abatement, as taken by the petitioner on the application under s. 17(2) of the West Bengal Premises Tenancy Act was nothing but a slum dispute raised only to forestall the early disposal of the suit. 4. 4. Having heard the learned Advocates for the parties and going through the impugned order and the annexures to the revisional application, I however, hold that the learned Munsif was wrong in holding that the question of abatement of rent cannot be gone into under s. 17(2) of the West Bengal Premises, Tenancy Act. Such question if bona fide raised, certainly has to be gone into by the Court while disposing of an application under s. 17(2) of the West Bengal Premises Tenancy Act, However, in the facts and circumstances or the present case, it is quite clear, that although the petitioner alleged in its application under s. 17(2) that the garage space was denied to the petitioner since 1984, no action was ever taken by the petitioner against such denial nor any objection was ever raised before any court of law previously and that the petitioner in spite of such alleged denial of the garage space by the opposite party, went on paying and is still paying rent at the agreed rate. In such view of the matter, the dispute of abatement of rent, as raised by the petitioner in its application under s. 17/2, does not appear to me to be a bona fide dispute, more so, when no challenge has been thrown by the petitioner regarding the rate of rent or the amount of rent payable. No doubt, an issue has been framed regarding the relationship of landlord and tenant between the parties in respect of the disputed tenancy, which according to Mr. Chatterjee should have also been disposed of by the court below while disposing of the application under s. 17(2) and Mr. Chatterjee stretches his argument to the effect that such an issue also covers the question of abatement of rent in a bound about way inasmuch as the question of relationship of landlord and tenant between the parties covers the extent of the tenancy also. 5. Judging the facts and circumstance, of the present case, I am, however, unable to accept the said contention of Mr. Chatterjee Really speaking, in the present case, there was nothing for the court to decide on the tenants application under s. 17(2) of the West Bengal Premises Tenancy Act, 1956 as no bona fide dispute was raised by the tenant, under the said s. 17(2). Chatterjee Really speaking, in the present case, there was nothing for the court to decide on the tenants application under s. 17(2) of the West Bengal Premises Tenancy Act, 1956 as no bona fide dispute was raised by the tenant, under the said s. 17(2). The Court in the present case was not asked either to decide the rate of rent or the amount of rent payable including arrears of rent nor the relationship of landlord and tenant between the parties truly speaking, and the court below had rightly held that the question whether the tenant was denied of the garage space or whether such space was within the part of the disputed tenancy was a matter to be decided at the time of trial. Moreover, the tenant had also never raised previously in any legal forum, the plea of abatement of rent before raising such dispute for the first time in the application under s. 17(2). Simply because the question of abatement of rent can be gone into under s. 17(2) of the West Bengal Premises Tenancy Act, 1956, it cannot be said that whenever such a plea is raised, the Court has to decide such question while dealing with an application under s. 17(2) without considering at all whether in the facts and circumstances of the of the case such a plea can be termed to be a bona fide dispute within the scope said s. 17(2) otherwise any and every kind of dispute raised by a tenant in such an application, however, frivolous it may be, has to be decided by the court while deciding an application under s. 17(2). In deciding a dispute as missed by a tenant in an application under s. 17(2) the court must judge the bona fide of such dispute or in other words, is to see, whether the dispute was a sham one raised mala fide simply for gaining time under s. 17(2) and to forestall the further proceedings in the connected ejectment suit. Reference may be made to the decisions of this Hon'ble Court in the cases of Tarak Nath Gupta v. Lt. Col Karuna Kumar Chatterjee and Ors. (62 CWN 830), Gujarat Printing Press v. Naraindas Jewraj (64 CWN 157), Nazrul v. Manna Singh (ILR 1968 1 Cal 170) and Sudhir Kumar Sarkar v. P.C Gupta (82 CWN 515). 6. In the case of Tarak Nath Gupta v. Lt. Col Karuna Kumar Chatterjee and Ors. (62 CWN 830), Gujarat Printing Press v. Naraindas Jewraj (64 CWN 157), Nazrul v. Manna Singh (ILR 1968 1 Cal 170) and Sudhir Kumar Sarkar v. P.C Gupta (82 CWN 515). 6. In the case of Tarak Nath Gupta v. Lt. Col. Karuna Kumar Chatterjee and Ors. (supra) Das Gupta and Guha, JJ. held inter alia that only cases of bona fide dispute will come under sub-s. (2) of s. 17 and the mere raising of a dispute will not attract those provisions of law as obviously, if the court finds that the dispute raised is not a bona fide dispute, the same would not come under sub-s. (2) at all. 7. In the case of Gujarat Printing Press v. Naraindas Jewraj (supra) which is also a Division Bench judgment of this Hon'ble Court, P.N. Mookerjee and Sarkar, JJ. held inter alia as follows:- "A question may arise as to whether the defendant tenant can claim the benefit of the extended period under sub-s. (2) by merely raising a dispute however false his allegations may be. In our opinion, he has no such absolute right and, if the court thinks that the dispute was a sham one, raised mala fide simply for gaining time under sub-s. (2), and the supporting allegations were false and purposive, it has enough power, in our opinion to hold that there is no dispute which would take the case out of sub-s. (1) and bring it within sub-s. (2)". 8. The same principle of law has also been enunciated in the case of Narzul Islam v. Manna Singh (supra) S.K. Datta, J. subsequently, in the case of Sudhir Kumar Sarkar v. P.C. Gupta (supra) relying upon the decisions in Gujarat Printing Press (Supra) and Nazrul Islam (supra) also held inter alia that the tenant had no absolute right to raise a dispute, however, false and frivolous it is and if the court finds that the dispute was a sham one raised mala fide simply for gaining time under sub-s. (2), the Court has ample power to hold that there is no dispute as contemplated in sub-s. (2) of s. 17. 9. 9. Relying on the above decisions, I hold, that the pica of abatement of rent as raised for the first time by the petitioner in its application under s. 17(2), in the facts and circumstances of the present case, must be held to be a sham dispute raised only for the purpose of delaying and/or forestalling the decision in the suit. 10. Accordingly, although in my view, the finding of the court below that the question of abatement of rent cannot be gone into under s. 17(2), is not a correct finding yet in the facts and circumstances of the case and in view of my above discussions, I am not inclined to interfere with the impugned order in any manner. The revisional application therefore fails and is rejected without any order as to costs. I, however, make it clear that the petitioner will be at liberty to raise at the time of trial the question as to whether the garage space forms a part of its tenancy in the disputed premises and whether it was denied of and/or dispossessed from such space at any point of time by the landlord as alleged by the tenant and this order will not stand in its way of raising such plea. This order is made, for the purpose of disposing of the present revisional application only. I also make it clear that the payment of rent by the petitioner during the pendency of the suit at the agreed rate, will be without prejudice to the rights and contentions of the parties to the suit and the petitioner is at liberty to raise the question of abatement of rent including excess payment and/or adjustment against future rent subsequently, if ultimately the question whether the garage space forms part of its tenancy as alleged by the tenant and whether it was deprived of such space or dispossessed therefrom, is decided in favour of the tenant in the suit. 11. Regarding payment of current rent for January 1989, in the facts and circumstances of the case, the time for depositing the same is extended by a period of ten days from date. Let this order go down immediately. Application rejected.