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2005 DIGILAW 358 (CAL)

SHYAM NARAYAN SINGH v. ARUP RATAN PAUL

2005-06-07

SUBHRO KAMAL MUKHERJEE

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SUBHRO KAMAL MUKHERJEE, J. ( 1 ) THIS is an application under Article 227 of the Constitution of India against judgment and order dated November 25, 2004 passed by the learned Judge, Eleventh Bench, City Civil Court at Calcutta in civil Revision Case No. 37 of 2004 reversing Order No. 119 dated July 26, 2004 passed by the learned Judge, Fourth Bench, Presidency Small Causes Court, calcutta in Ejectment Suit No. 672 of 2000. ( 2 ) THE defendant is the petitioner in this application. The predecessor-in-interest of the substituted plaintiffs, the opposite parties in this application instituted, an ejectment suit being No. 641 of 1992 in the City Civil Court at calcutta, which was eventually transferred to the Presidency Small Causes court, Calcutta and has been renumbered as Ejectment Suit No. 672 of 2000. ( 3 ) THE learned Trial Judge by order dated July 26, 2004 disposed of an application under section 151 of the Code of Civil Procedure filed by the defendant/petitioner holding, inter alia, that the said application became redundant inasmuch as already the Court accepted the rents deposited by the defendant. The application under section 17 (3) of the West Bengal Premises tenancy Act, 1956 filed by the plaintiffs was rejected holding, inter alia, the defendant has complied with the provisions of sub-section (1) of section 17 of the West Bengal Premises Tenancy Act, 1956. ( 4 ) THE substituted plaintiffs, the opposite parties in this application, moved an application under section 115a of the Code of Civil Procedure against the said order dated July 26, 2004 passed in Ejectment Suit No. 672 of 2000, in the city Civil Court at Calcutta, which was eventually transferred to the Court of the learned Judge, Eleventh Bench, City Civil Court at Calcutta. By the order impugned dated November 25, 2004 the learned Judge allowed the revisional application on contest and the order impugned in the said revisional application was set aside. The application filed by the plaintiffs under sub-section (3) of section 17 of the West Bengal Premises Tenancy Act, 1956 was allowed on contest holding, inter alia, that the current rents were not deposited month by month in accordance with the provisions of sub-section (1) of section 17 of the west Bengal Premises Tenancy Act, 1956. ( 5 ) MR. The application filed by the plaintiffs under sub-section (3) of section 17 of the West Bengal Premises Tenancy Act, 1956 was allowed on contest holding, inter alia, that the current rents were not deposited month by month in accordance with the provisions of sub-section (1) of section 17 of the west Bengal Premises Tenancy Act, 1956. ( 5 ) MR. Jiban Ratan Chatterjee, learned Advocate, appearing for the petitioner, submits that the learned Judge in the Revisional Court exceeded his jurisdiction in entertaining the revisional application under section 115a of the Code of Civil Procedure after the amendment of the Code of Civil procedure. ( 6 ) MR. Adhip Chandra Kar, learned Advocate, appearing for the opposite parties, on the contrary, submits that in view of the provisions of section 8a of the City Civil Court Act, 1953 the revisional application was perfectly maintainable before the City Civil Court challenging an order arising out of a suit for recovery of possession of a premises under West Bengal Premises tenancy Act, 1956. ( 7 ) THE provisions of section 115 of the Code of Civil Procedure has been amended by the Code of Civil Procedure (Amendment) Act, 1999. After such amendment of Code of Civil Procedure, which came into effect from July 1, 2002, a revisional application under section 115 of the Code of Civil Procedure is maintainable when the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding. ( 8 ) MY reading of section 8a of the City Civil Court Act, 1953, which has been inserted by City Civil Court (Amendment) Act of 1999, is that the City civil Court has been authorised to entertain a revisional application as the district Court. In view of insertion of the said section 8a, the City Civil Court is entitled to receive a revisional application against an order arising out of a suit or proceeding for the recovery of possession of any premises under the west Bengal Premises Tenancy Act, 1956 and for such purpose the City Civil court shall be deemed to be a District Court within the meaning of section 115a of the Code of Civil Procedure. According to section 8a of the said Act, the city ; 'jvil Court can entertain a revisional application against an order arising out of a suit for recovery of possession filed under the West Bengal Premises tenancy Act, 1956, but section 8a does not vest the City Civil Court with the power to entertain revisional application independent of the Code of Civil procedure. ( 9 ) IN fact the substituted plaintiffs filed their revisional application in the city Civil Court under section 115a of the Code of Civil Procedure. ( 10 ) IN my view, the City Civil Court is entitled to entertain a revisional application under section 115a of the Code of Civil Procedure as the District court against any order passed by the learned Judges. Presidency Small Cause court, Calcutta in any ejectment suit filed under the West Bengal Premises tenancy Act, 1956 subject, however, to the limitations imposed under the proviso to section 115 (1) of the Code of Civil Procedure. ( 11 ) THEREFORE, the learned Judge in the City Civil Court at Calcutta exceeded his jurisdiction in entertaining the revisional application under section 115a of the Code of Civil Procedure. The order impugned has been passed without jurisdiction. The judgment and order dated November 25, 2004 passed by the learned Judge, Eleventh Bench, City Civil Court at Calcutta in Civil Revision case No. 37 of 2004 in set aside and the order No. 119 dated July 26, 2004 passed by the learned Judge, Fourth Bench, Presidency Small Causes Court, calcutta in Ejectment Suit No. 672 of 2000 is restored. ( 12 ) I direct the parties to bear their respective costs in this application. ( 13 ) LET a xerox plain copy of this order be supplied, if applied for, to the learned Advocate for both the parties on their usual undertakings.