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2007 DIGILAW 302 (CAL)

Monisha Roy v. Biplab Sengupta

2007-04-20

S.P.TALUKDAR

body2007
Judgment :- (1.) This application under Article 227 of the Constitution is directed against the order No.43 dated 7th August, 2006 passed by learned 2nd Court of Civil Judge, Junior Division, Alipore in Title Suit No.34 of 2004. (2.) The present petitioner, as defendant, filed an application dated 24.3.2005 before the learned Trial Court praying for allowing him to make certain repairs in respect of the disputed premises. (3.) The petitioners claiming to be tenants in respect of the first floor of premises No.56, Ballygunge Gardens, Kolkata-700.019 since 1966 alleged that the said premises urgently requires repairs. It was claimed that the opposite parties/plaintiffs were repeatedly requested to take steps for necessary repairs but to no avail (4.) By letter dated 9.10.2002, the petitioners intimated the opposite parties of the intention to carry out the repairs. (5.) On 10.2.2004, the Kolkata Municipal Corporation issued a notice under Section 411 (1) of the Kolkata Municipal Corporation Act calling upon the petitioners to repair the premises in consultation with the Structural Engineer of the said Corporation without changing the nature and character and the dimension of the concerned building. (6.) Subsequently opinion was obtained from the Structural Engineer and the petitioners were advised to take immediate steps for such repairs to prevent accident. (7.) Immediately thereafter, the opposite parties filed a suit being Title Suit No.34 of 2004 before the learned Civil Judge, Junior Division, 2nd Court, Alipore, praying for a decree of permanent injunction restraining the present petitioners from making any work of construction or changing the nature and character of the suit premises as well as for other reliefs. (8.) The opposite parties filed an application under Order 39 Rules 1 and 2 read with Section 151 of the Civil Procedure Code praying for an order of temporary injunction restraining the petitioner from causing any repairs or changing the nature and character of the premises. (9.) Learned trial Court by order dated 4.3.2004 directed the parties to maintain status quo. Such order was thereafter extended from time to time. The petitioners preferred an appeal and prayed for setting aside of such order as well as for stay of operation of the order dated 4.3.2004. (10) The Kolkata Municipal Corporation issued a further notice dated 29th November, 2004 thereby extending the time to make repairs to the said premises. Such order was thereafter extended from time to time. The petitioners preferred an appeal and prayed for setting aside of such order as well as for stay of operation of the order dated 4.3.2004. (10) The Kolkata Municipal Corporation issued a further notice dated 29th November, 2004 thereby extending the time to make repairs to the said premises. (11.) By order dated 16.3.2006, the teamed District Judge dismissed the appeal and confirmed the said order dated 4.3.2004. The petitioners were compelled to approach the High Court with an application under Article 227 of the Constitution being C.O. No.2109 of 2005 and prayed for permission to make repairs to the said premises. (12.) By order dated 14.9.2005, the Honbie Court directed the Court below to dispose of the application of the petitioners for causing repairs by 15.11.2005. The learned trial Court by order No.37 dated 26.10.2005 disposed of the application filed by the petitioners by directing the parties to maintain status quo. The petitioners being left with no choice approached this Court with a further application under Article 227 of the Constitution being C.O.No.4507 of 2005. The said application was also disposed of by this Court by order dated 20.6.2006 by directing the learned trial Court to dispose of the pending application of the petitioners for leave to cause repairs as expeditiously as possible preferably within a month from the date of communication of the order. (13.) Learned trial Court thereafter by order dated 7.8.2006 dismissed the application on the ground that the Civil Court did not have any jurisdiction to entertain such application in view of Section 44 of the West Bengal Premises Tenancy Act, 1997. (14.) Being aggrieved by such order dated 7.8.2006, the petitioners again approached this Court with a further application under Article 227 of the Constitution. (15.) Mr. Bachwat, appearing as learned Counsel for the petitioners, submitted that there had been a failure of the part of the learned Trial Court to appreciate the matter in its proper perspective. (16.) It was specifically claimed that Section 44 of the West Bengal Premises Tenancy Act, 1997 does not really stand in the way of the present petitioners approaching the learned Court with an application for repair of the tenanted premises. (16.) It was specifically claimed that Section 44 of the West Bengal Premises Tenancy Act, 1997 does not really stand in the way of the present petitioners approaching the learned Court with an application for repair of the tenanted premises. (17.) It was further submitted that in absence of repairs, there is every possibility of a major accident and repeated notices received from the Kolkata Municipal Corporation under Section 441(1) of the Kolkata Municipal Corporation Act should not have been lost sight of. (18.) Mr. Bachwat further claimed that in absence of immediate repair, without, of course, changing the nature and character of the tenanted premises, the future of the tenancy itself will be in peril. (19.) On the other hand, Mr. Bhattacherjee, appearing as learned Counsel for the opposite parties/plaintiffs, submitted that Section 44 of the West Bengal Premises Tenancy Act, 1997 does not permit the defendants/tenants from approaching a Civil Court with a prayer for allowing them to make repairs and it is open for the tenants to approach the Rent Controller with such an application. According to learned Counsel for the opposite parties/plaintiffs, the application seeking repair is an indirect attempt on the part of the tenants to cause extensive changes in the nature of the tenanted premises. (20.) Section 44 of the said Act reads as follows: - "Jurisdiction of Civil Courts barred in respect of certain matters save as otherwise expressly provided in the Act.- No Civil Court shall entertain any suit or proceeding in so far as it relates to fixation of fair rent in relation to any premises to which this Act applies or to eviction of any tenant therefrom or to any other matter which the Controller is empowered by or under this Act to decide and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any Civil Court." (21.) In this context of the jurisdiction of the Civil Court, Mr. Bachwat referred to the decision in the case of Loken Bose v. Sm. Ashima Dev and Anr., reported in AIR 1977 Calcutta 318 and submitted that there could be nothing in the Act of 1997 which bars either expressly or by necessary implications the jurisdiction of the Civil Court to grant the same or similar relief to a tenant who is a defendant in a suit for ejectment. Ashima Dev and Anr., reported in AIR 1977 Calcutta 318 and submitted that there could be nothing in the Act of 1997 which bars either expressly or by necessary implications the jurisdiction of the Civil Court to grant the same or similar relief to a tenant who is a defendant in a suit for ejectment. (22.) Relying upon the decision in the case of Industrial Credit and Investment Corporation of India Ltd. v. Grapco Industries Ltd. and Ors., reported in AIR 1999 SC 1975 , it was submitted on behalf of the petitioners that this Court in exercise of its power under Article 227 of the Constitution can very well interfere with an interim order passed by the Court or Tribunal. (23.) Mr. Bachwat invited attention of the Court to the observations made by the Apex Court in the case of Shiv Kumar Chadha v. Municipal Corporation of Delhi and Ors., reported in 1993 (3) SCC 161 and submitted that ouster of jurisdiction of the Civil Court should not be readily inferred unless it is expressly excluded or impliedly barred. (24.) Relying upon the said decision, it was submitted by Mr. Bachwat that where a statute purports to curb and curtail a pre-existing common law right and purports to oust the jurisdiction of the Court so far remedy against the orders passed under such statute is concerned, the Courts have to be more vigilant. It is more so, while examining the question as to whether an adequate redressal machinery has been provided before which the person aggrieved may agitate his grievance. (25.) The Apex Court in connection with the case of Shiv Kumar Chadha (supra) observed as follows: - "In the case of Katikara Chintamni Dora v. Guntreddi Annamanaidu this Court after referring to the case of Addanki Tiruvenkata Thata Desika Charyulu v. State of A.P. observed: - (SCC P.579, para 35) It was pertinently added that this exclusion of the jurisdiction of the Civil Court would be subject to two limitations. First, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. The second is as regards the exact extent to which the powers of statutory tribunals are exclusive. First, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. The second is as regards the exact extent to which the powers of statutory tribunals are exclusive. The question as to whether any particular case falls under the first or the second of the above categories would depend on the purpose of the statute and its general scheme, taken in conjunction with the scope of the enquiry entrusted to the tribunal set up and other relevant factors." (26.) The Apex Court in connection with the said case referred to the decision in the case of Anisminic Ltd. v. Foreign Compensation Commission, reported in 1969 (1) AIR 208 in support of the contention that there is need for giving a wide interpretation to the word jurisdiction. (27.) In order to justify filing of an application under Article 227, Mr. Bachwat relied upon the decision in the case of Sadhana Lodh v. National Insurance Co. Ltd. and Anr, reported in 2003 (3) SCC 524 . Mr. Bachwat further submitted that though in exercising the supervisory power under Article 227 of the Constitution, this Court does not act as an appellate Court but it is required to examine whether an inferior Court or tribunal has proceeded within its parameters or not. (28.) On the other hand, learned Counsel for the opposite parties/ plaintiffs consistently and categorically asserted that the Civil Court does not have any jurisdiction to entertain an application praying for repair of the tenanted premises in view of Section 44 of the Act of 1997. (29.) Mr. Bachwat also derived support from the decision in the case of Shiv Kumar Chadha (supra) wherein reference was made to the decision in the case of Dhulabhai v. State of M.P., as reported in AIR 1969 SC 78 . (30.) The Constitution Bench of the Apex Court observed: -"Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. (30.) The Constitution Bench of the Apex Court observed: -"Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not." (31.) In the case of Raja Ram Kumar Bhargava v. Union of India, reported in 1988 (1) SCC 681 , it was held as follows: - "Wherever a right, not pre-existing in common law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the Civil Courts jurisdiction is impliedly barred." (32.) No doubt, Section 44 of the West Bengal Premises Tenancy Act, 1997 stands as a big hurdle to a tenant respect of a premises in approaching the Civil Court with a prayer for making repairs. It cannot be denied that the said Act itself has specific provision for redressal of such grievance. Nothing can stand in the way of a tenant approaching the Rent Controller with such grievance. (33.) But the fact and circumstances of the present case give it a distinct identity. Here the tenants did not approach the Civil Court initially with an application for allowing them to make repairs.lt is not in dispute that the premises in question is in an extremely dilapidated condition and demands extensive repair. (33.) But the fact and circumstances of the present case give it a distinct identity. Here the tenants did not approach the Civil Court initially with an application for allowing them to make repairs.lt is not in dispute that the premises in question is in an extremely dilapidated condition and demands extensive repair. Having regard to the fact that the opposite parties/plaintiffs approached the learned Court with a prayer for injunction, it cannot, perhaps, be said that the petitioners/tenants have any statutory restriction to raise their voice in the said pending suit and seek permission for repair. It cannot be denied that if such voice is not heard and the petitioners/tenants are directed towards the doors of the Rent Controller, . there will always be a possibility of conflicting approach, if not decisions. There will be multiplicity of proceedings as well. Apprehension of the petitioners, as ventilated on their behalf, that the Rent Controller in view of the pending civil suit and the stand taken by the learned Court in connection with the same may be under painful compulsion to pause and then decide not to act, cannot be brushed aside. (34.) The present case is certainly not an instance where the tenants have gone to the Civil Court by filing a suit or initiating a proceeding. Here the tenants are rather on the defence and are only attempting to respond to the challenge. Section 44 of the Act of 1997 does not seem to suggest that in such backdrop, the petitioners/tenants cannot knock the door of the Civil Court and demand justice, since the dispute is already under consideration of the Civil Court. (35.) In fact, for better appreciation of materials as well as in the best interest of justice, the tenants may very well be permitted to seek relief before the learned Court where the civil suit is already pending. (36.) On behalf of the petitioners attention of the Court was invited to the decision of learned Single Bench of this Court in connection with C.O. No 4507 of 2005. It was submitted that the very fact that the revisional application under Article 227 of the Constitution was disposed of by the learned Single Bench of this Court vide order dated 20.6.2006 thereby directing the learned Trial Court to dispose of the application seeking repair as expeditiously as possible supports the stand of the petitioners. It was submitted that the very fact that the revisional application under Article 227 of the Constitution was disposed of by the learned Single Bench of this Court vide order dated 20.6.2006 thereby directing the learned Trial Court to dispose of the application seeking repair as expeditiously as possible supports the stand of the petitioners. It was then mentioned that the said order impliedly indicates that the Civil Court has the jurisdiction to entertain such an application. (37.) After careful consideration of the said order, I find it difficult to accept such contention. Mere fact that direction was given for expeditious disposal of an application does not load to the presumption that this Court thereby brought the controversy relating to jurisdiction to an end. (38.) But after giving due regard to the fact and circumstances, this Court is inclined to hold that the W.B.P.T. Act, 1997 certainly entitles the tenant to approach the Controller in order to make repair and take measures for maintenance of essential service. (39.) It also cannot be denied that Section 44 clearly bars jurisdiction of Civil Courts in respect of certain matters save as otherwise expressly provided in the Act. But as stated earlier, the position of the present petitioners/tenants is significantly different since they filed such application praying for permission to make repair in connection with a pending suit initiated by the opposite parties/plaintiffs. (40.) Section 44 of the said Act does not stand in the way in such backdrop. (41.) Learned Trial Court rejected the application on that score alone. The order impugned dated 7.8.2006 is accordingly set aside and learned Court is directed to consider the application filed by the present petitioners/ defendants afresh within a period of three weeks from the date of communication of this order and pass necessary order in accordance with law-of course, after giving opportunity of hearing to both parties. No order as to costs.