Research › Search › Judgment

Calcutta High Court · body

2003 DIGILAW 545 (CAL)

PADMA SIRKAR v. MANJULA GHOSH

2003-11-10

AMITAVA LALA

body2003
AMITAVA LALA, J. ( 1 ) THIS is an application under Section 115 of the Code of Civil procedure. The application was filed on 22nd May, 2002. A preliminary point was taken by the defendant-opp. party that the application is not maintainable in view of the order passed by the High Court reported in 2003 (1) C. L. J. 263 (Mrityunjay Sen v. Shrimati Sikha Sen ). However, the court was pleased to hold that the revisional application under Section 115 of the Code of Civil Procedure would be converted into an application under Article 227 of the Constitution of India by directing to pay the additional Court fees. This difficulty arose in view of certain amendment which had been directed to be caused by way of amendment of the Code of Civil Procedure, 1999 as well as in 2002. Under Section 32 (1) (i) of the code of Civil Procedure (Amendment) Act, 1999, the provision of Section 115 of the Code of Civil Procedure, 1908 as amended by Section 12 of this Act, should not apply to or affect any proceeding in revision which had been finally disposed of. Since the learned Counsel appearing for the defendant-opp. party contended that in view of such circumstances, this application under Section 115 of the Code of Civil Procedure against the final order passed by the first appellate Court could not be maintainable. ( 2 ) I do not agree with such proposition of law, since the very judgment as referred above itself opined that in such circumstances, the application under Section 115 of the Code of Civil Procedure could be converted into an application under Article 227 of the Constitution of India subject to payment of Court fees. ( 3 ) SO far as the merit is concerned, I have gone through the order impugned as well as the application filed by the defendant-opp. party in the Court below and also verious affidavits-in-connection with this application. Admittedly, the main application is made under sections 17 (2) and 2a of the West Bengal Premises Tenancy Act, 1956 read with Section 17 (1) of the same. The prayer made in such application is restricted only in respect of determination of the month of tenancy of the defendant-opp. party and rate of rent payable, arrears of rent and adjustment of excess etc. The prayer made in such application is restricted only in respect of determination of the month of tenancy of the defendant-opp. party and rate of rent payable, arrears of rent and adjustment of excess etc. The scope and ambit of Section 17 (2) is that if in any suit or proceeding is there any dispute as to the amount of rent payable by the tenant, the tenant shall deposit in Court the amount admitted by him to be due from him together with an application to the Court for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. On receipt of such application, the Court shall, having regard to the rate to which the rent was last paid and the period for which default may have been paid, by the tenant, make a preliminary order etc. ( 4 ) IN the body of the application it is stated that the last rent he has paid to the tune of Rs. 1007/ -. The break up as indicated therein is rs. 954/- as rent per month and Rs. 53/- per month on account of Municipal taxes. The verification made by the defendant-opp. party is true to the knowledge. If it is so, the Court has to proceed on the basis of the last rent paid because presumably such rate is the contractual rate, otherwise the court will be burdened with the duty of the Rent Controller for fixation of fair rent. Even to that extent, a Division Bench order of this Court has a binding effect upon the Court. Such judgment is reported in 1983 (1) C. L. J. 429 (Remington Rand of India Ltd. v. Sohan Lal Rajgharia and Ors. ). There it was held by the Division Bench relying upon the Supreme Court judgment reported in 1970 (1) SCC 14 (M. M. Chawla v. J. S. Sethi) that the provision of Section 17 (2) of the W. B. Premises Tenancy Act, 1956 has not either expressly or by necessary implication, authorised the determination by court fair rent of the suit premises, such determination, as stated, already, being within the exclusive jurisdiction of the Rent Controller. There can be no doubt that under Section 17 (2) the Court determines only the contractual rent. There can be no doubt that under Section 17 (2) the Court determines only the contractual rent. Although it is not expressed in the proceeding but by necessary implication it can safely construe that the determination of the quantum of fair rent has been sought for. Had there been a dispute in respect of the contractual rent, it would have been totally different but even in the affidavit filed before this Court, the defendant-opp. party is relying upon a dispute as incorrect receipt of the amount etc. for the period from December, 1994 to November, 1999 and December, 1999 to March, 2000. Such submission is contrary to his own submission by way of an application before the Court below. Therefore, in so many words a try has been made for the purpose of fixation of fair rent by the Court. Hence, I cannot allow the order of the 8th Civil Judge (Sr. Div.) at Alipore, to be sustained. Therefore, the same is set aside. The revisional application is disposed of. There will be no order as to costs. ( 5 ) HOWEVER, this order will not put an embargo upon the authority/ authorities to invoke the jurisdiction of the Rent Controller. In any event, such order will be effective subject to payment of Court fees within a period of two days from this date. ( 6 ) THE suit will be heard as expeditiously as possible, preferably within a period of three months from the date of communication of this order. ( 7 ) PETITIONER is permitted to take down the gist of the order and communicate the same to the authority concerned who will act upon such communication. Let urgent xerox certified copy of this order, if applied for, be given to the learned Counsel for the parties within a period of 7 days from the date of putting the requisites.