Research › Browse › Judgment

Calcutta High Court · body

1992 DIGILAW 62 (CAL)

Khagendra Nath Das v. Banku Behari Mondal

1992-02-06

MAHITOSH MAJUMDAR

body1992
JUDGMENT This Revision is directed against the order No. 65 dated 5th January, 1985. Banku Behari Mondal the defendant/opposite party herein filed an application under Section 47 of the Code of Civil Procedure. It is claimed by the said Banku Behari that the landlord himself is a Thika Tenant under one Amalendu Nath Ganguly of 1, Kalicharan Sett Lane and Banku Behari Mondal is a Bharatia under the revisionist. It is further claimed that the plea is not maintainable in view of the provisions of Section 19 of Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981 and the execution proceeding should be treated to be ineffective. This aspect was dealt with by the revisionist in paragraph 5 and 6 of the answer which reads thus:- "5. The statement of para 2 of the petition under reply is denied. The execution case is quite maintainable and the judgment debtor is not entitled to any notice as alleged. 6. The statements of para 3 of the petition under reply is denied. The purport of Section 19 of Calcutta Thika Tenancy Regulations Act has been misinterpreted and even by implication the present execution case cannot abate." 2. Mr. N.C. Saha, learned Advocate appearing for the revisionist placed reliance on the decision of this Court in the Appeal from Appellate Decree No. 1948 of 1968. The appeal was filed by Banku Behari Mondal against the judgment delivered by the Subordinate Judge, Fourth Court, Alipore in Title Appeal No. 1194 of 1967 reversing the decree of the learned Munsif, Third Court, Sealdah dated 22nd June, 1967. The relevant portion of the aforesaid decision is quoted below : “It is also to be seen that the defendant did not take recourse to the provisions of Section 17(1) and (2) of West Bengal Premises Tenancy Act although it had been alleged in the plaint that he was a defaulter in the payment of rent since Sravan 1370 B.S. Sometime in September 1964 he filed an application before the Court for permission to adjust certain amount of arrear rent and also current rent. The Court allowed his application at his own risk. After failing to prove his story of agreement and adjustment from rent the defendant can be said to be a defaulter in payment of rent since Sravan 1370 B.S. The suit was instituted on 25.5.64. The Court allowed his application at his own risk. After failing to prove his story of agreement and adjustment from rent the defendant can be said to be a defaulter in payment of rent since Sravan 1370 B.S. The suit was instituted on 25.5.64. The above discussion would go to indicate that it was brought after legal and valid termination of the tenancy of the defendant/appellant who was a defaulter in payment of rent within the meaning of Clause (i) of Section 13(1) and also guilty of acts as contemplated in Clause (b) of Section 13(1) of West Bengal Tenancy Act, 1956. I, therefore, find that the lower appellate court rightly decreed the suit brought by the plaintiff/respondents. In the result the appeal is dismissed with costs. The defendant/ appellant do vacate the disputed premises within four months from this date, failing which the plaintiff/respondent would be entitled to evict him therefrom in execution of the decree.” 3. I have considered the basic grievances of the defendant/opposite party as would appear from the petition under Section 47 of the Code of Civil Procedure. The defendant/ opposite party set up a new plea under the provision of Section 19 of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981. Objection was filed to the said petition. By the said object on the revisionist made it clear that the execution case is quite maintainable and the defendant is not entitled to invoke Section 19 of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981 which has been misinterpreted in this case and by implication the present execution case cannot abate. 4. The service of the Rule was effected but no one was present before this Court on last thursday when the matter was taken up for hearing. Accordingly the matter was passed over and again the matter is taken up today. No one is present on behalf of the opposite party also today. Mr. Saha referred to the decision of this Court in the case of (1) Sukha Devi Jain v. Nanda Lal Das reported in 1987(1) CLJ 253 . The learned Judges of this Court while dealing with the scope and ambit of Section 19 of the Act held in the manner following :- “Section 19 of the Act was not applicable to the present proceeding for execution of the civil courts decree, pending in the court below. The learned Judges of this Court while dealing with the scope and ambit of Section 19 of the Act held in the manner following :- “Section 19 of the Act was not applicable to the present proceeding for execution of the civil courts decree, pending in the court below. The executing Court committed an error apparent on the face of the record by overlooking that the said Section 19 of the Act had provided for abatement only of proceedings of a different nature proceedings under the Calcutta Thika Tenancy Act 1949. Section 19 of the Act did not refer at all to suits, appeals or proceedings for execution of Civil Court decree pending before the Civil Court. No doubt, along with the thika tenant, the expression Bharatia appears in Section 19 of the Act. But Section 19 of the Act expressly mentions all proceedings including appeals and all proceedings in execution of orders passed in proceedings including appeals under the Calcutta Thika Tenancy Act, 1949. Therefore, only in case the proceedings, were under the Calcutta Thika Tenancy Act, 1949. Orders passed in the said proceeding, for ejectment of the thika tenant and the Bharatia under the same Act would stand abated under Section 19 of the 1981 Act.” 5. This Court held that the defendant/opposite party was a defaulter in payment of rent within the meaning of clause (i) of Section 13(1) and also of the Act as contemplated under Section 13(b) of the West Bengal Tenancy Act, 1956. Accordingly the decision of the first lower appellate court was confirmed. 6. Let us now turn back to the order sought to be reviled. I have carefully considered the entire facts and circumstances of the case as also the order No. 65 dated 5th January, 1985. The learned Court, in my view, should have considered the entire matter namely, the judgment of the lower appellate court and the order passed by this Court in Appeal from Appellate Decree No. 1948 of 1968. All the aspect were completely ignored and thereby the court below acted with material irregularity in overlooking the basic aspect of the matter and the judgment and decree of this Court in S.A. No. 1948 of 1968. The order, therefore, is vitiated by material irregularity and the learned Court below failed to exercise jurisdiction vested in him. All the aspect were completely ignored and thereby the court below acted with material irregularity in overlooking the basic aspect of the matter and the judgment and decree of this Court in S.A. No. 1948 of 1968. The order, therefore, is vitiated by material irregularity and the learned Court below failed to exercise jurisdiction vested in him. It will be very appropriate for this Court to record the recourse to Section 19 of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981 ought not to have been considered but that was considered. The expression thika tenant and the expression Bharatia appearing in Section 19 of the said Act could not be otherwise be of any aid to the defendant opposite party inasmuch as Section 19 of the Act expressly mentioned proceedings including all appeals and passed in proceeding including the Calcutta Thika Tenancy Act, 1949. Therefore, the main question, if not the only question, which is required to be answered is whether the proceeding which ultimately culminated in the affirmation of the judgment and decree of the lower Appellate Court by this Court being S.A. No. 1948 of 1968 could be treated abated by recourse to Section 19 of the aforesaid Act. The judgment of this Court clearly spells out that the defendant opposite party was a defaulter in terms of clause (i) of Section 13(1) and the Court also found that the defendant opposite party was found guilty of the offence of Section 13(b) of the Welt Bengal Premises Tenancy Act. The main question is, therefore, answered in the manner that no proceeding under the Calcutta Thika Tenancy Act, 1949 is pending nor any order was passed in the said proceeding for ejectment of the Thika Tenant and the Bharatia under 'he aforesaid Act. The opposite party was found defaulter and further found guilty of the relevant provisions of the West Bengal Premises Tenancy Act as quoted above. Therefore, the order No. 65 dated 5th January, 1985, in my view, cannot be sustained nor the proceeding can be treated as abated. The learned Court, in my view, should have acted with proper application of mind to the materials on record and also the order paned by this Court in S.A. No. 1948 of 1968. In view of my foregoing findings I allow the revision by setting aside the order No. 65 dated 5th January, 1985. The learned Court, in my view, should have acted with proper application of mind to the materials on record and also the order paned by this Court in S.A. No. 1948 of 1968. In view of my foregoing findings I allow the revision by setting aside the order No. 65 dated 5th January, 1985. The Revision, therefore, succeeds and the Rule is made absolute with costs which is assessed at 20 G.Ms. to be paid by the defendant opposite party before the Executing Court at the time of hearing of the execution proceeding.