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2002 DIGILAW 457 (CAL)

Panchanan Pal v. Kamal Kr. Nath

2002-07-12

ALOKE CHAKRABARTI, Joytosh Banerjee

body2002
JUDGMENT Joytosh Banerjee, J. This is an application for review under section 114 of the Code of Civil Procedure and it is directed against the judgement dt. 9.8.2000 passed in S.A. No. 176/2000 by me sitting with Justice Y.R. Meena (as His Lordship then was). 2. The second appeal in question was against the judgement and decree of dismissal of the first appeal by the 1st Court of Civil Judge (Sr. Division) at Alipore in the district of 24-Parganas (S) affirming the judgement and decree of dismissal passed by the trial court. Plaintiff brought the suit as the owner of premises No. 253-A, B.B. Chatterjee Road, P.S. Kasba alleging that the predecessor-in-interest of the defendant Ganesh Chandra Pal was a tenant in respect of the suit room, situated in the said premises at a rental of Rs. 40/- per month. Previously plaintiff had the occasion to bring the suit for ejectment against the said predecessor-in-interest Ganesh Ch. Pal claiming his eviction from the suit room on the ground of default and the same was registered as Suit No. 455 of 1980. That suit was dismissed on the basis of a solenama on 7.4.84 wherein the defendant original tenant was adjudged as a defaulter in payment of rent but he was given protection against the eviction under section 17(4) of the West Bengal Premises Tenancy Act. It was the specific allegation that the said Ganesh Ch. Pal paid rent to the landlord/ plaintiff upto October, 1985 and thereafter he defaulted in payment of rent during his life time. The original tenant died on 22.5.86. The defendants were the successor-in-interest of the said Ganesh Ch. Pal and they also defaulted in payment of rent since November, 1985 after they stepped into the shoes of the original defendant. In that background, the plaintiff filed the suit for eviction of the defendant after terminating the tenancy by serving a combined notice under section 13(6) of the Premises Tenancy Act and 106 of the T.P. Act. The defendant No. 3 contested the suit by filing a written statement contending, inter alia, that the plaintiff was a thika tenant, though he was the owner of the structure in question. The original tenant Ganesh Ch. Pal and after his death, the contesting defendant paid rent upto May, 1986 without any rent receipt and thereafter the defendant started depositing the rent in the office of the Rent Controller. The original tenant Ganesh Ch. Pal and after his death, the contesting defendant paid rent upto May, 1986 without any rent receipt and thereafter the defendant started depositing the rent in the office of the Rent Controller. Both the courts below found that the defendant/tenants under the plaintiff, defaulted in payment of rent and before them their predecessor-in-interest, the original tenant also defaulted in payment of rent from November, 1985 to May, 1986. Since the original defendant got protection from the decree of the decree of eviction the present defendants as a successor was not entitled to get any protection under section 17(4) of the West Bengal Premises Tenancy Act and with this findings the court below decreed the suit directing the eviction of the house tenants and dismissed the appeal affirming the decree of eviction. 3. In the judgement impugned, we considered the question whether in view of the concurrent findings of both the courts below that the original defendants and after him, the defendants defaulted in payment of rent, there was any substantial question of law involved in the present appeal. It was noted in the judgement impugned, that both the courts below reached at a concurrent finding that since the original defendant got the protection from the eviction under sub-section (4) of section 17 of the West Bengal Premises Tenancy Act, the defendants of the suit one of whom was the appellant before the court were not entitled to get any protection from eviction in view of proviso to sub-section (4) of section 17 of the West Bengal Premises Tenancy Act. It was further noted that such decision had been challenged in the second appeal on the ground that since earlier suit had been disposed of on the basis of the compromise application, there was no question of compliance with the provisions of sub-section (1) or sub-section (2) or sub-section (2a) of section 17 of the West Bengal Premises Tenancy Act and therefore such protection which was given in the compromise petition was not a protection under section 17(4) of the West Bengal Premises Tenancy Act. In the judgement impugned, we held, considering the provisions contained in section 17(4) with its proviso, that sub-section (4) laid down in substance that if in an earlier suit on the ground of default the tenant was given protection under that sub-section he would not be entitled to get any further protection in the subsequent suit brought by the landlord on the ground of default and therefore whether there was any recording that the defendant/tenant duly complied with the provisions of sections 17(1), 17(2) or 17(2a) of the Act was immaterial as those provisions were incorporated in the Act for the protection of the tenant and under the scheme of the Act if the tenant complied with the provision then in case of first default he would be given protection but not in case of subsequent defaults. Considering that background, we find that there was no substantive question of law involved and therefore the appeal was dismissed in limine. 4. The petitioner through the present application wants to get the aforesaid order reviewed alleging, inter alia, that this court erred in law in dismissing the appeal considering the proviso to section 17(4) of the West Bengal Premises Tenancy Act, as it failed to appreciate that the said provision could not be made applicable in the instant case, inasmuch as disposal of the previous suit was done on the basis of a compromise decree between the predecessor-in interest of the appellant/petitioner, and the landlord, that the court should have appreciated that the courts below erred in law in not deciding the specific contention of the appellant that the plaintiff/respondent No. 1 was a thika tenant in respect of the suit premises and he was not the owner of the suit premises. The learned Advocate for the petitioner at the time of advancing his argument has submitted, for the aforesaid reasons there was some mistake or error apparent on the face of the record, within the meaning of Rule 1 or Order 47 of the Act. Learned Advocate for the O.P. on the other hand submitted that there was no ground present here for the purpose of review of the order impugned. Learned Advocate for the O.P. on the other hand submitted that there was no ground present here for the purpose of review of the order impugned. Before we proceed to decide the question, it should be noted that an error apparent on the face of the record must be such which is a patent mistake and not something which can be established by a long drawn process of reasoning on points of which there may conceivably be two opinions. If an elaborate process of reasoning is necessary to arrive at the conclusion that there is an error apparent on the face of the record, it cannot be said that there is an error apparent on the face of the record. In the instant case, the first grievance made by the petitioner is that since the previous suit for eviction between the landlord and the predecessor-in-interest of the tenant/petitioner was disposed of through compromise petition it cannot be said that the tenant got the protection from eviction. It transpires from the impugned order that it was recorded there that the previous suit was disposed of by a compromise decree wherein the original tenant admitted that he defaulted in payment of rent as contemplated under section 13(1) (i) of the West Bengal Premises Tenancy Act. Sub-section (4) of section 17 clearly lays down that if a tenant makes deposit or payment as required by sub-section (1), sub-section (2) or sub-section (2a) no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the court. Proviso to clause 4 of section 17 lays down that a tenant shall not be entitled to get any relief under sub-section (4), if having obtained such relief in respect of the premises, he has again made default in the payment for four months within a period of twelve months. Therefore, it is evident that proviso to sub-section (4) comes into play in the event of the second default and it has already been noted in the order impugned that through the compromise petition in the first suit for eviction, tenant admitted himself to be a defaulter. In that background, it can be said that there is no error apparent on the face of the record on this point. In that background, it can be said that there is no error apparent on the face of the record on this point. Regarding the second point, we do not find any reason to proceed further with the matter. In the impugned order it was recorded that the contesting defendant in his written statement contended that the plaintiff was a thika tenant though he was the owner of the structure in question. Therefore, the petitioner being a tenant in respect of the structure cannot now say that the landlord was only a thika tenant. In this way we find that there is no ground as incorporated under Order 47 Rule 1 C.P. Code to review the order impugned. Therefore, the instant proceeding must fail. It is accordingly dismissed. Hearing cost is assessed at Rs. 500/- to be paid to the opposite party. Aloke Chakraborty, J.: I agree. Appeal dismissed.