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2002 DIGILAW 684 (CAL)

DASSI v. ISWAR GIRIDHARI JEW

2002-10-10

HRISHIKESH BANERJI

body2002
HRISHIKESH BANERJI, J. ( 1 ) THIS Revisional Application is directed against the order dated November 30, 1998 passed by the learned judge, 5th Bench, Presidency Small Cause Court, Calcutta in SCC Suit no. 356 of 1995 in the file of the said court. ( 2 ) THE suit is one for eviction of a licensee from the suit premises under the provisions of Section 41 of the Presidency Small Cause Courts act, 1882 (the 1882 Act' for short ). The plaintiff No. 1, Sri Sri Iswar giridhari Jew is the absolute owner of the suit premises at 19/c/h/ 10, Goabagan Street, Calcutta-700 006 and the plaintiff No. 2. is the sole sebait and the next friend of the plaintiff-deity. Out of sympathy for (he defendant the plaintiff No. 2 granted leave and licence to Smt. Srimati dassi to reside in a room on the ground floor of the said premises free of charge. The defendant was performing seva to the deity by cleaning utensils and washing Thakur Ghar etc. Some time in the year 1994, the defendant refused to perform seva to the plaintiff deity and inspite of repeated requests of the plaintiff No. 2, refused to vacate suit room. On july 20, 1995 the leave and licence of the defendant was revoked by the plaintiff by a letter through his Advocate. Inspite of service of such notice the defendant failed to vacate the suit premises and hence the present suit for recovery of khas possession and of suit premises on eviction of defendant therefrom. ( 3 ) IT is the defendant's case that she has been staying in the suit room since 1973 paying a monthly rent of Rs. 20/-; that the plaintiffs did not issue any rent receipt to her inspite of requests and that ultimately when the plaintiff refused to issue rent receipt in her name inspite of tender of rent to the plaintiff, the defendant started depositing the monthly rent with the Rent Controller, Calcutta. It is the petitioner's further case that she has all along been residing there as a tenant paying rent regularly without rent receipt for the last 22 years and that in such circumstances, the present suit is liable to be dismissed. It is the petitioner's further case that she has all along been residing there as a tenant paying rent regularly without rent receipt for the last 22 years and that in such circumstances, the present suit is liable to be dismissed. ( 4 ) ON consideration of the evidence-on-record the learned Judge, 5th bench, Presidency Small Cause Court, Calcutta held that the defendant was not a tenant in the suit premises but was the licensee of the plaintiff and that she having failed to vacate the suit premises inspite of revocation of the licence granted to her, the plaintiff was entitled to a decree for recovery of possession and decreed the suit accordingly. ( 5 ) MR. Roy. appearing with Mr. Boral for the defendant/petitioner contends that the Presidency Small Cause Court at Calcutta has no jurisdiction to entertain a suit by a licenser against gratuitous licensee and that such a suit should be filed either before the City Civil Court or the High Court depending on the valuation of the suit. ( 6 ) MR. Roy cites the following decisions in support of his contention that the proceeding under Section 41 of the 1882 Act for eviction of a tenant is not entertainable by the Presidency Small Cause Court, calcutta:1. 8 Calwn 904 (Jotish Chandra Mukherji vs. Rama Nath Bhadra and Ors.), 2. AIR 2001 Bombay 470 (Ramesh Dwarkadas Mehra vs. Indravati dwarkadas Mehra), 3. 1999 (1) CLJ 1 (Ajit Kumar Moitra vs. Dilip Kumar Sen. @ Dilip sen and Anr.)4. 89 CWN 400 (Dipen Mukherjee us. Sandhyarani Chatterjee), 5. AIR 1953 SC 148 (Nalinakhaya Bysack vs. Shyam Sundar Haider and Ors. ). ( 7 ) IN AIR 2001 Bombay 470 (supra) it has been held that Section 41 of the 1882 Act invests jurisdiction in the Small Cause Courts to entertain proceedings between licensor and licensee only where the licence is not gratuitous i. e. it is for consideration other than material and that it was finally decided by the Apex Court that a suit against the gratuitous licensee is not tenable before the Presidency Small Cause Court under section 41 of the Presidency Small Cause Courts Act, 1882 and such a suit should be filed before the City Civil Court or the High Court depending on the valuation. ( 8 ) IN 89 CWN 400 (supra) a Division Bench of this Court comprising justice Anil Kumar Sen (as his lordship then was) and Justice Sudhir ranjan Roy also held that a proceeding under Section 41 of the Presidency small Cause Courts Act, 1882 is not a suit and does not end In a decree. It remains a proceeding and for that matter a summary proceeding which again is subject to a suit on the title as prescribed by Section 49 of the Act. ( 9 ) IN 1999 (1) CLJ 1 (supra) the appellant filed a suit under Section 41 of the 1882 Act for eviction from the suit premises against the respondent No. 2 and one other. The suit was decreed and execution proceeding was started. Following resistance by the respondent No. 2, police help was sanctioned by the court for delivery of possession. At that stage the respondent No. 1 filed a Title Suit in the City Civil Court, calcutta against the appellants for declaration that the respondent No. 1 was a bona fide tenant in the suit premises and that the decree of the small Causes Court, Calcutta was not executable. The respondent No. 1 also prayed for injunction restraining execution of the decree till the disposal of the City Civil Court suit. The prayer for interim injunction having been granted by the trial court, the appellants preferred the appeal before the High Court. Dismissing the appeal the Division Bench comprising Justice Nirendra Krishna Mitra (as his lordship then was) and justice Kalyan Jyoti Sengupta held that Chapter-VII covering Sections 41 to 49 of the 1882 Act provides for a summary procedure for eviction of tenants or licensees but a proceeding under Section 41 of the 1882 act is not a suit and the order for delivery of possession under Section 43 of the said Act is not a decree as has been held by the Supreme court in the case Nalinakhaya By sack vs. Shyam Sundar Haider and. Ors. , reported in AIR 1953 SC 148 . Ors. , reported in AIR 1953 SC 148 . ( 10 ) IN view of the above decisions it is now well settled that a proceeding under Section 41 of the Presidency Small Cause Courts Act, 1882, is not a suit and does not end in a decree and for necessary relief a suit is to be filed in the High Court or in the City Civil Court. ( 11 ) IN the result the Revisional Application is allowed and the impugned decree passed by the learned Judge, 5th Bench, Presidency Small Cause courts. Calcutta is set aside. No order as to costs. Revisional application allowed.