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2007 DIGILAW 540 (CAL)

MURSHED NAWAZ v. MUMTAZ BEGUM

2007-07-20

JYOTIRMAY BHATTACHARYA

body2007
( 1 ) THIS application under Article 227 of the Constitution of India is directed against an order dated 24th March, 2006 passed by the learned civil Judge (Junior Division), Additional Court at Sealdah in Ejectment Suit no. 360 of 2004 at the instance of the defendant/petitioner. ( 2 ) THE plaintiff/opposite party filed a suit for eviction against the defendant/petitioner on the ground of default in payment of rent, causing damages to the suit premises and also for reasonable requirement of the plaintiff and the members of the plaintiffs family. ( 3 ) IN such a suit, the petitioner filed an application under Section 7 (2) of the West Bengal Premises Tenancy Act, 1997 for determination of his arrear of rent and for allowing him to deposit the determined amount by instalments. ( 4 ) THE learned Trial Judge held in the order impugned that the petitioner defaulted in payment of rent since July, 1980 at the rate of rs. 100/- per month. Thus, the learned Trial Judge calculated the arrear rent payable by the petitioner at Rs. 30,900/- which is inclusive of the statutory interest. While disposing of the said application, the learned Trial judge also held that the deposits which were made by the tenant in favour of the plaintiff/opposite party before the Rent Controller are all invalid deposits, as those deposits were made by the defendant/petitioner along with the other heirs of the original tenant, though the petitioner failed to prove that the other heirs of the original tenant became tenants by inheritance as per Section 2 (g) of the said Act in respect of the suit premises under the plaintiff/opposite party. ( 5 ) THE learned Trial Judge also held that the petitioner could not prove payment of the rent to the Custodian of Enemy Property for the period prior to delivery of possession by the custodian of the enemy property to the plaintiff/opposite party. As such, default in payment of rent during the said period was also taken into account by the learned Trial Judge. ( 6 ) MR. Bhattacharya, learned Advocate, appearing for the petitioner challenges the said findings of the learned Trial Judge by contending that prior to the delivery of possession of the suit premises by the custodian of the enemy property to the plaintiff/opposite party, the plaintiff/opposite party had no right to realise rent from the petitioner. ( 6 ) MR. Bhattacharya, learned Advocate, appearing for the petitioner challenges the said findings of the learned Trial Judge by contending that prior to the delivery of possession of the suit premises by the custodian of the enemy property to the plaintiff/opposite party, the plaintiff/opposite party had no right to realise rent from the petitioner. As such the rent for the said period cannot be held to be due and/or recoverable from the petitioner by the plaintiff/opposite party. ( 7 ) M. Bhattacharya further submits that since the petitioner inherited the tenancy along with the other heirs of the original tenant and further since the rent was deposited for the subsequent period before the Rent controller by all the heirs of the original tenant, those deposits ought not to have been held as invalid deposits by the learned Court below. ( 8 ) MR. Bhattacharya, thus, submits that at least those deposits which were made before the Rent Controller by all the heirs of the original tenant should have been accepted as valid deposits and the learned Trial Judge should not have directed the petitioner to deposit the rent for the said period once again. ( 9 ) HEARD Mr. Bhattacharya and Mr. Golam Mustafa, learned advocate for the opposite party. ( 10 ) IT is settled law that the findings which are arrived at, while disposing of an application under Section 7 (2) of the West Bengal Premises tenancy Act, are conclusive only for the purpose of the said proceeding. Those findings are all tentative findings and as such cannot operate as res judicata at the time of consideration all the issues in the suit. ( 11 ) ADMITTEDLY, the application under Section 7 (2) of the said Act has not been taken up for consideration along with the issues either with regard to the existence of relationship of landlord and tenant between the parties or with regard to the default in payment of rent by the defendant/ petitioner in respect of the suit premises. ( 12 ) UNDER such circumstances, this Court does not feel it necessity to interfere with the findings excepting on the validity of the deposits before the Rent Controller which were arrived at by the learned Trial Judge while disposing of the application under Section 7 (2) of the said Act. ( 12 ) UNDER such circumstances, this Court does not feel it necessity to interfere with the findings excepting on the validity of the deposits before the Rent Controller which were arrived at by the learned Trial Judge while disposing of the application under Section 7 (2) of the said Act. ( 13 ) THIS Court, however, makes it clear that the learned Trial Judge at the time of hearing of the suit will consider the issues regarding relationship of landlord and tenant between the parties and the default in payment of rent afresh after recording of evidence of the parties on its own merit provided however such issues are raised in the suit. It is also made clear that while considering the said issues, the learned Trial Judge will take its own decision on those issues without being influenced by any of the observations made by the learned Trial Judge while disposing of the application under Section 7 (2) of the said Act. ( 14 ) I, however, find much substance in the submission of Mr. Bhattacharya that the deposits made by the defendant/petitioner along with the other heirs of the original tenant with the Rent Controller, cannot be held to be invalid deposits, as at least one of such depositors, viz. , the defendant/petitioner is an admitted tenant. That apart, the Court has not yet finally decided as to whether the other heirs of the original tenant inherited the tenancy along with the petitioner or not. ( 15 ) AS such, the learned Trial Judge is directed to take into account the deposits which were so made by the defendant along with the other heirs of the original tenant with the Rent Controller as valid deposits for the purpose of this proceeding and to re-calculate the arrear rent payable by the tenant/petitioner by giving cedit of those deposits in favour of the tenant/ petitioner. Such re-calculation will be made by the learned Trial Judge positively within a period of one month from the date of communication of this order and the tenant/petitioner is directed to deposit the rent so determined together with the statutory interest thereon positively within a period of one month thereafter. Such re-calculation will be made by the learned Trial Judge positively within a period of one month from the date of communication of this order and the tenant/petitioner is directed to deposit the rent so determined together with the statutory interest thereon positively within a period of one month thereafter. ( 16 ) IT is also made clear that rent deposited with the Rent Controller may be withdrawn by the plaintiff/opposite party without prejudice to his right and contention in the suit and also without waiving his right to agitate his challenge with regard to the validity of such deposits in the suit. Remaining part of the order impugned remains unaltered.