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2007 DIGILAW 597 (CAL)

MOHD. AMIN v. KAUSAR ALI

2007-08-06

JYOTIRMAY BHATTACHARYA

body2007
( 1 ) THE plaintiff/petitioner has filed this application under Article 227 of the Constitution of India for challenging the propriety of the order passed by the learned Additional District Judge, 1 st Court, Howrah, in Misc. Appeal no. 35 of 2007 affirming order being No. 24 dated 9th Feburary, 2007 passed by the learned Civil Judge (Junior Division),. 2nd Court at Howrah 'in Title Suit No. 234 of 2005. ( 2 ) THE plaintiff/petitioner filed a suit for declaration and permanent injunction claiming the following reliefs: - " (a) A decree of declaration that the plaintiff is a tenant and have exclusive right, title and interest over the suit property; (b) A decree of mandatory injunction for restraining the defendants and their men and agent for making disturbances/ inconveniences in enjoying the suit property; (c) Such other relief which the plaintiff is entitled under the law of equity. " ( 3 ) IN such a suit, the plaintiff/petitioner filed an application for interim injunction for restraining the defendant/opposite party from making any interference in the construction and/or repair of the suit premises to be carried out by the petitioner. ( 4 ) IN connection with the said application for injunction, the petitioner also filed an application under Order 39 Rule 7 of the Code of Civil procedure for appointment of an Advocate Commissioner for ascertaining the nature and extent of the repairs which are necessary to be carried out in the suit premises. Such application for local inspection was allowed by the learned Trial Judge and an Advocate Commissioner was appointed for the purpose of ascertaining the nature and extent of repair which is necessary to be carried out in the said premises. ( 5 ) AN inspection was held by the learned Advocate Commissioner and a report was also submitted in the said suit. ( 6 ) THE learned Trial Judge, however, ultimately rejected the petitioner's application for interim injunction on 9th February, 2007 by holding, inter alia, that the relief which is prayed for by the petitioner, cannot be granted by the Civil Court as grant of such relief is barred under the provision of Section 44 of the West Bengal Premises Tenancy Act, 1997, inasmuch as, the Controller has the exclusive jurisdiction to consider such prayer of the defendant under Section 35 of the said Act. ( 7 ) BEING aggrieved by and dissatisfied with the said order, the plaintiff/petitioner preferred an appeal before the learned Additional District judge, 2nd Court at Howrah. In connection with the said appeal which was registered as Misc. Appeal No. 35 of 2007, a further application for local inspection was filed by the plaintiff/petitioner for ascertaining the nature of repair which is required to be carried out in the suit premises. Such application was filed before the learned Appellate Court as, according to the plaintiff/petitioner, the report which was submitted by the learned advocate Commissioner before the learned Trial Judge was not an appropriate and/or complete report from which the nature and extent of necessary repair can be ascertained. ( 8 ) THOUGH such prayer was allowed and an Advocate Commissioner was appointed for the said purpose but the inspection could not be completed, as the plaintiff/petitioner did not allow the Advocate commissioner to complete such inspection. ( 9 ) THE learned Appellate Court ultimately dismissed the said miscellaneous appeal by expressing the same view as was expressed by the learned Trial Judge with regard to the maintainability of such an application in view of the bar created under Section 44 of the West Bengal premises Tenancy Act, 1997. The learned Appellate Court also recorded in the order impugned that the learned Advocate Commissioner could not complete the inspection as he was obstructed by the plaintiff/appellant in completing such inspection. ( 10 ) THUS, admittedly there is no material before the Court till date, from which the Court can ascertain the nature and extent of the repair which is required to be carried out in the suit premises. Of course, such ascertainment is absolutely immaterial unless this Court finds that relief which is prayed for, can be granted by the Civil Court notwithstanding the bar created under the provision of Section 44 of the present Act. If the jurisdiction of the Civil Court to grant the relief which is sought for in this application is barred under Section 44 of the said Act, then of course no useful purpose will be served by appointing another Advocate commissioner for the purpose of carrying out further inspection for ascertaining the nature of repair which is necessary to be carried out in the said premises. ( 11 ) AS such, this Court instead of sending the question regarding the maintainability of such application to the learned Trial Judge for his consideration, feels it necessary to consider the submission of the respective parties to resolve the dispute regarding maintainability of such application before the Civil Court. ( 12 ) SECTION 44 of the present Act provides that save as otherwise 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 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 the Act shall be granted by any Civil Court. ( 13 ) THE relief which the petitioner has claimed in the said suit has already been indicated above. In the said suit, the petitioner claimed a decree for declaration of his tenancy right in the suit premises and permanent injunction. Such relief cannot be granted by the Controller under any of the provision of the West Bengal Premises Tenancy Act. If such relief cannot be granted by the Controller under any of the provisions of the said Act, then the grant of such relief which is claimed by the petitioner in the suit, by the Civil Court, cannot be held to be barred under Section 44 of the said Act. If the suit is not barred under the provision of the said act, then the Civil Court's jurisdiction to grant the interim reliefs, cannot be held to be barred under Section 44 of the present Act. ( 14 ) LET me consider the impact of the bar created in Section 44 of the said Act from another angle. ( 15 ) THE function and/or jurisdiction of the Controller to adjudicate the disputes between the landlord and tenant are specified in the Act itself restriction on the Civil Court's jurisdiction is imposed, so that the Civil court cannot encroach upon the jurisdiction of the Controller on those specified fields which are exclusively within the domain of the Controller. ( 15 ) THE function and/or jurisdiction of the Controller to adjudicate the disputes between the landlord and tenant are specified in the Act itself restriction on the Civil Court's jurisdiction is imposed, so that the Civil court cannot encroach upon the jurisdiction of the Controller on those specified fields which are exclusively within the domain of the Controller. ( 16 ) THE Division Bench of this Court also considered similar provisions under the Old Act in the case of Oil and Natural Gas Commission v. Kanak Investment Pvt. Ltd. , reported in 90 CWN page 1076 and held that this type of relief can be granted by the Civil Court of competent, jurisdiction in a competent civil suit notwithstanding the provision contained in Section 34 of the West Bengal Premises Tenancy Act, 1956 which does not fetter and/or put any restriction on the Civil Court's jurisdiction to give such Interim relief in a pending suit. ( 17 ) UNDER such circumstances, this Court holds that the Civil Court's jurisdiction to grant such relief which is claimed by the petitioner in this application for interim injunction, is not barred under the provision of section 44 of the Present Act. As such, the learned Court below is required to consider the said application afresh on its own merit. ( 18 ) HOWEVER, considering the prayer made by the petitioner in his application for repair, this Court also feels that a complete report from the advocate Commissioner is necessary for ascertaining the nature and/o extent of repair which is required to be carried out in the said premises. ( 19 ) AS such, the learned Trial Judge is directed to appoint ai advocate Commissioner for the purpose of ascertaining the nature and or extent of repair which is required to be carried out in the suit premise within two weeks from the date of communication of this order. ( 20 ) THE learned Trial Judge is also directed to consider th application for interim injunction filed by the plaintiff/petitioner afresh o its own merit, after obtaining the report from the Advocate Commissione ( 21 ) IT is, however, made clear that the findings and/or observatio and/or decision which is made hereinabove regarding the maintainable of such application before the Civil Court, is conclusive. ( 22 ) HOWEVER, this Court has not considered other points regarding the petitioner's prayer for interim injunction on merit and as such, the learned Trial Judge is absolutely free to take his own decision on the said application on its merit in accordance with law. The impugned order is, thus, set aside.