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2007 DIGILAW 380 (CAL)

NIRMALA SAWOO v. PRADIP CHATTERJEE

2007-05-17

PRABUDDHA SANKAR BANERJEE

body2007
( 1 ) THIS revisional application is one under Article 227 of the Constitution of india and is directed against order No. 7 dated 28. 03. 2005 passed by the learned Additional Civil Judge, Junior Division, (being Additional Controller, sealdah) Sealdah in ejectment case No. 265 of 2004. ( 2 ) THE said suit was brought by the present Opposite Parties against the present petitioners for eviction of tenant from the property in question. ( 3 ) IN the said case the plaintiffs/petitioners filed one application under section 39 (6) of West Bengal Premises Tenancy Act, 1997 with prayer for temporary injunction against the Opposite Parties. In that application grounds were duly mentioned so that the Court can pass appropriate order on the basis of the said application. ( 4 ) THE present Opposite Parties contested the said application by filing written objection. ( 5 ) BY the order impugned, the learned Additional Rent Controller allowed the application and restrained the present petitioners from using the entrance door on the North excepting at the time of using the meter box if required that too with prior permission of the petitioners. ( 6 ) BEING aggrieved and dissatisfied with the said order of the learned additional Rent Controller, the instant revisional application has been preferred by the present petitioners. ( 7 ) MR. Asish Bagcht, learned Counsel for the petitioners challenged the order on the following grounds : - i) That the order in question is nullity as the officer, who passed the order impugned was not vested with power as per provision of the West Bengal Premises Tenancy Act, 1997. ii) That in Section 39 (6) of the said Act no specific provision has been made regarding granting of temporary injunction as the grounds were not specified there. iii) That the notification dated 30. 4. 2004 will go to show that Mohitosh dutta was empowered under the Act to try the cases and before that one Sutapa Saha was empowered as per notification dated 11. 3. 2003. iv) That the door in question can never be treated as "property" and the Court committed error in passing order of injunction with respect to using of the said door by the present petitioners. ( 8 ) THE said pleas were strongly opposed by Mr. 3. 2003. iv) That the door in question can never be treated as "property" and the Court committed error in passing order of injunction with respect to using of the said door by the present petitioners. ( 8 ) THE said pleas were strongly opposed by Mr. Aniruddha Chatterjee, learned Counsel for the Opposite Parties, who contended that the present revisional application is not maintainable as the grounds of jurisdiction was not taken before the Court below. It was the further contention of Mr. Chatterjee that the present petitioners accepted the jurisdiction of the Court at the time of hearing before the Court below and as such he cannot challenge the same before this revisional Court. ( 9 ) IT was the further contention of Mr. Chatterjee that the officer concerned. e. M. Das was vested with power and the report of the learned registrar, Judicial Service will corroborate the same. ( 10 ) LET us now consider the pleas as raised by the learned lawyer for the parties. ( 11 ) MR. Bagchi, relied upon the notification dated 30. 04. 2004 and on the basis of the same he contended that one Mohitosh Dutta, Civil Judge, junior Division was empowered to deal with Rent Control cases and his name appears against. No. 6. ( 12 ) MR. Bagchi, further contended that before that one Sutapa Saha was entrusted to deal with Rent Control cases vide order dated 11. 3. 2003. Accordingly, it was the contention of Mr. Bagchi that the order impugned was passed by an officer who was not entrusted with the power as per the said Act. ( 13 ) IT should be stated here that on the basis of submission of the parties, a report was called for from the Registrar General and the report of the registrar, Judicial Service dated 5. 5. 2007 goes to show that Sri Mahananda das (M. Das) was posted as Civil Judge, Junior Division, Additional Court, sealdah on 28. 3. 2005. e. on the date when the impugned order was passed and he was authorized by notification dated 21. 1. 2004 to deal with Rent Control cases. 5. 2007 goes to show that Sri Mahananda das (M. Das) was posted as Civil Judge, Junior Division, Additional Court, sealdah on 28. 3. 2005. e. on the date when the impugned order was passed and he was authorized by notification dated 21. 1. 2004 to deal with Rent Control cases. ( 14 ) THE said notification goes to show that the Governor was pleased to appoint Judicial Officer proceeding as Civil Judge, Junior Division at additional Court, Sealdah as Additional Controller in respect of area comprised in the Police Station as shown in 'b' below for the purpose of Chapter-Ill of the said Act. ( 15 ) IT is, therefore, clear from the said notification that the Officer who was posted in the Additional Court of Civil Judge, Junior Division was authorized to deal with the Rent Control cases. It is also clear that the said authorization was not with respect to name of a particular officer but with the officer who was occupying the said post at the relevant time. ( 16 ) THE subsequent notification which was referred by Mr. Bagchi is with respect to Court No. 3 and not with respect to Additional Court. ( 17 ) IN the instant case the order impugned was passed by the learned additional Court. ( 18 ) IT is therefore, clear that the Officer. e. M. Das had the requisite power of Additional Rent Controller when the order impugned was passed. ( 19 ) AT the same time, it is to be mentioned that the said plea was never raised before the Court below when the matter was heard. It is therefore, clear that the present petitioners accepted the jurisdiction of the Court at that time. ( 20 ) LET us now come to the other points as raised by learned Counsel for the petitioners. ( 21 ) MR. Bagchi, took the specific plea that Section 39 (6) does not provide the grounds in which order of injunction can be passed. ( 22 ) IN other words, it was his contention that in the absence of any specific provision in the Act itself, the Court cannot pass any order of injunction. ( 21 ) MR. Bagchi, took the specific plea that Section 39 (6) does not provide the grounds in which order of injunction can be passed. ( 22 ) IN other words, it was his contention that in the absence of any specific provision in the Act itself, the Court cannot pass any order of injunction. ( 23 ) THE said plea was opposed by learned Counsel for the petitioners who drew the attention of the Court to Rule 16 of the said Act which clearly provides that Controller has power to pass order of temporary injunction which can be allowed as per provision of Order 39 Rule 1 and 2 of Civil Procedure code. ( 24 ) IN view of the said position, the plea as taken by Mr. Bagchi cannot be accepted. ( 25 ) LASTLY, it was contended on behalf of the petitioners that order of injunction can be passed only with respect to property and the door in question does not come within the purview "property". ( 26 ) I cannot accept the said plea. ( 27 ) IN this case the door in question is the subject matter of the application and the said door is fixed in the suit holding. ( 28 ) THE present petitioners did not take the plea that the door in question or the passage is part of the tenancy. The petitioners before the Court below took the specific plea that the present petitioners are using the said door forcibly though there is alternative door which is part of the tenancy and is being used by them. ( 29 ) IN view of the said position, I also cannot accept the said plea as raised by Mr. Bagch. ( 30 ) IT should be stated here that the petitioners relied upon the following cases : - i) Mamata Ghosh and Ors. v. Mrs. Charu Chandra Mandal and Anr. reported in 60 Cal WN 1032. ii) Sudhir Kumar Bhattacharjee v. Bibhuti Bhusan Majumdar and Anr. reported in 60 Cal WN 222 iii) Surya Dev Raiv. Ram Chander Rai and Ors. reported in AIR 2003 sc 3044 iv) Utlam Das and Anr. v. State of West Bengal and Ors. reported in (2004)2 Cal HN 171 : (2003)2 C Cr LR (SC) 614 ( 31 ) ON the other hand Mr. Chatterjee relied upon the case in between n. Jayaram Reddy and Anr. Ram Chander Rai and Ors. reported in AIR 2003 sc 3044 iv) Utlam Das and Anr. v. State of West Bengal and Ors. reported in (2004)2 Cal HN 171 : (2003)2 C Cr LR (SC) 614 ( 31 ) ON the other hand Mr. Chatterjee relied upon the case in between n. Jayaram Reddy and Anr. v. Revenue Divisional Officer and Land Acquisition officer, Kurnool, reported in (1979)3 SCC 578. ( 32 ) LET me now deal with the said cases. ( 33 ) IN the case in between Mamala Ghosh and Ors. v. Mrs. Charu chandra Mandal and Anr, case (supra) the Court dealt with the power of a Court and persona designata. ( 34 ) ON perusal of the said case specially page 1034 which was relied upon by Mr. Bagchi, I am of clear opinion that the said case law will not help mr. Bagchi's client. ( 35 ) IN the case in between Sudhir Kumar Bhattacharjee v. Bibhuti bhusan Majumdar and Anr. case (supra), the Court discussed about the relationship of the parties and the defence that can be taken. I quote the following lines : - "for that purpose, it may be necessary for him to consider defences or objections, founded upon a certain claim of status, or pleas of absence of relationship of landlord and tenant or denial of the landlord's title to the property. He is certainly entitled to, in my opinion, to consider these questions, so far as they are necessary for the purpose of his duties under the statute which include passing of orders for ejectment. " ( 36 ) I failed to understand how that case will help Mr. Bagchi's client. ( 37 ) IN the case in between Surya Dev Rai v. Ram Chander Rai and Ors. case (supra), the apex Court dealt with power under Article 227 of the constitution. The said case also will not help Mr. Bagchi's client ( 38 ) IN the case in between Uttam Das and Anr. v. State of West Bengal and Ors. case (supra), the Learned Single Judge came to the conclusion that the Court was lacking jurisdiction and as such, the learned Single Judge opined that frivolous proceeding should be nipped in the bud. Bagchi's client ( 38 ) IN the case in between Uttam Das and Anr. v. State of West Bengal and Ors. case (supra), the Learned Single Judge came to the conclusion that the Court was lacking jurisdiction and as such, the learned Single Judge opined that frivolous proceeding should be nipped in the bud. ( 39 ) IN the instant case I have already held that the Court had the requisite power under the West Bengal Premises Tenancy Act, 1997 when the order impugned was passed. As such, the said case law is not attracted in the instant case. ( 40 ) IN the case in between N. Jayararn Reddy and Anr. v. Revenue divisional Officer and Land Acquisition Officer, Kurnool, reported in (1979) 3 scc 578 the Hon'ble Supreme Court came to the conclusion that a plea willfully abandoned by a party at the relevant time cannot be allowed to be raised at the time of convenience of that party to the prejudice of the other party. ( 41 ) ON the basis of materials on record, I am of clear opinion that there was no error on the part of the learned Trial Judge in passing the order and as such there is no need to interfere with the said finding of the learned Trial judge. Accordingly, the revisional application is dismissed on contest but without any cost. .