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1997 DIGILAW 111 (CAL)

Messers Encon v. Swati Devi

1997-02-28

B.M.Mitra

body1997
JUDGMENT B.M. Mitra, J. The instant revisional application is taken up at the stage of motion on a contested hearing being directed against order No. 71 dated 18.1.97 passed by the 1st Court of Assistant District Judge at Alipore in Title Suit No. 24 of 1994. This revisional application is directed against the impugned order dismissing an application under s. 17(2) of the West Bengal Premises Tenancy Act. It appears from a perusal of the connected petition under s. 17 (2) of the relevant Act that the prayers contained therein have not been couched properly but the substance of the petition rotates round the determination of the question of arrear of rent and also on further determination about the question of abatement. It appears from the objection filed to the connected application under s. 17 (2) of the West Bengal Premises Tenancy Act by the landlord opposite party and, in paragraph 14 thereof, there has been a specific averment to the effect that the defendant has defaulted in payment of rent since July, 1994. Therefore, the said defendant has come within the meaning of the controversy and, in that view of the matter, it is incumbent upon the court concerned to arrive at either of the alternative findings where the defendant is guilty of payment with regard to the arrear rent. If the defendant is found to have paid the upto date rent the same may have one dimension but if the defendant is found to be in default, it is incumbent upon the court concerned to quantify the amount of arrear rent together with interest payable thereon and, in absence of such recording the order remains incomplete and becomes laconic in character. 2. There is another facet of controversy as to whether the tenant is entitled to abatement of rent on the ground of non-supply of essential services. It appears that the Court has dwelt on the singular point whether a caretaker can be categorised as a security guard and deployment of a caretaker will serve the purpose of a security guard. It does not appear that the court has considered the other aspect of the matter, namely, the alleged non-supply of other services which have also been the material allegations in the connected petition. It does not appear that the court has considered the other aspect of the matter, namely, the alleged non-supply of other services which have also been the material allegations in the connected petition. The approach on the question of abatement seems to be a lopsided one but the same is required to be perceived in its comprehensive aspect with regard to all the allegations contained in the petition on which a finding is required to be arrived at. Some other controversy has emerged as to whether a caretaker can be equated with a security guard. In the impugned order reliance has been placed on the dictionary meaning of the word ‘caretaker’ and the learned Judge of the court below has opined that caretaker and security guard have similar things to be done and they render similar sent of duties. Caretaker is one who is to be in charge of looking after a building but so far as security of the building and its inmates are concerned, it is not clear whether the same can be performed by rendition of function by a caretaker. The word “security guard” connotes the element of renditions of protection by the person employed by way of security to the building itself and to the inmates of the building. The caretaker only is to be in charge of the building to see that regular and essential services are rendered by the caretaker that he will have the expertise in affording security to the inmates of the house. This Court has its doubts as to the formation of opinion of the learned Trial Judge as to whether the words ‘caretaker’ and ‘security guard’ are synonymous expressions. There may be some qualitative distinction with regard to service to be rendered by a caretaker and by a security guard. Simple deployment of a caretaker may not absolve the person saddle with the liability of the security guard if it is a service benefit attached to the enjoyment of easement of necessities to the tenancy. 3. There may be some qualitative distinction with regard to service to be rendered by a caretaker and by a security guard. Simple deployment of a caretaker may not absolve the person saddle with the liability of the security guard if it is a service benefit attached to the enjoyment of easement of necessities to the tenancy. 3. In the light of the observations made hereinabove, the learned court below being the 1st Court of Assistant District Judge at Alipore is hereby directed to reconsider and re-apprise the petition under s. 17 (2) of the West Bengal Premises Tenancy Act on available materials in Title Suit No. 24 of 1994 as early as possible, preferably within a period of six weeks from the date of communication of this order. In the view of the matter, the order impugned is set aside because of misdirection of the learned Judge in exercise of jurisdiction while disposing of the petition under s. 17 (2) of the West Bengal Premises Tenancy Act. Accordingly, the impugned order is set aside subject to the above directions and the revisional application stands allowed. Application stands allowed.