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2008 DIGILAW 115 (CAL)

Kaushik Chatterjee v. Bimal Krishna Biswas

2008-01-25

TAPAS KUMAR GIRI

body2008
Judgment TAPAS KUMAR GIRI, J. The petitioner being the landlord filed an application under Section 6 of the West Bengal Premises Tenancy Act, 1997 against the Opposite Party / tenant for eviction on the ground of default and reasonable requirement before the Court of Learned Civil Judge (Junior Division) 3rd Court at Sealdah being ejectment case No. 54 of 2005. The petitioner filed an application under Order 39 Rule 7 of the Code of Civil Procedure and Learned Court below allowed the said application on 24.3.06 and directed the Commissioner to submit the report. On 17.05.06 the Opposite Party / tenant filed an application under Section 39 (d) of the West Bengal Premises Tenancy Act, 1997 with a prayer for appointment of advocate commissioner to note the number of rooms with bath and privy under the possession of the landlord by way of inspection of the premises situated at 23 Ramlal Dey Street, Kolkata-700028, and 90 S.P. Mukherjee road, Kolkata – 700028 at 4/11A Hari Mohan Dutta road, Kolkata –28 and at Italgacha Badra, North near Durga Nagar Railway Station, Kolkata-79. Learned Court allowed the said application on 3.4.07 and also appointed an advocate commissioner for holding local inspection. Being aggrieved and dissatisfied with the order dated 3.4.07 passed by Learned Civil Judge (Junior Division), 3rd Court at Sealdah in ejectment case No. 54 of 2005, the petitioner / landlord has filed the present application for setting aside the same. Learned Advocate Mr. Bhattacharya contended that Learned Trial Judge acted illegally with material irregularity by way of non-speaking order. Learned Advocate also contended that without any proof, no order for inspection of the said premises can be done and the appointment of the commissioner for making inquiry about the fact of possession of the property in dispute cannot be adjudicated by way of local investigation and it should be adjudicated after framing of issue and the evidence of the parties and for that reason assistance of commissioner is not justified. In support of his contention Learned Advocate has cited a case law reported in AIR 1998 Rajasthan-224 (Union of India and others vs. M/s. Kripal Industries). The present order dated 3.4.07 passed by the Learned Court below is liable to be set aside. Learned Advocate Mr. In support of his contention Learned Advocate has cited a case law reported in AIR 1998 Rajasthan-224 (Union of India and others vs. M/s. Kripal Industries). The present order dated 3.4.07 passed by the Learned Court below is liable to be set aside. Learned Advocate Mr. Mukherjee on behalf of the Opposite Party / tenant contended that the petitioner/landlord in his written objection against the application under Section 39 (d) of the W.B.P.T. Act, 1997 stated that he is not the owner of the premises but he admitted that he used to reside at the premises as mentioned in the petition as stated by the tenant and as a result there will be no harm for inspection by the commissioner appointed by the Learned Court below only to ascertain of the above premises of the number of rooms with bath and privy and other facilities under the possession of the landlord or his family members as per point of the local inspection. In support of his contention Learned Advocate has cited a case law reported in 1995 Kerala Page 386 (Y.K. Gupta vs. S.K. Mohammed Raqueeb). Learned Advocate also contended that there is no illegality in the order of the Learned Court below, and as such the present application is liable to be set aside. It is admitted that the Opposite Party is the tenant under the petitioner in the suit premises as described in the plaint. Only the question has come for consideration whether the order dated 3.4.07 passed by the Learned Court below is justified or not. It is needless to mention that the opposite party filed the application under Section 39(d) of the West Bengal Premises Tenancy Act, 1997. There is no such specific provision in the said act but it would be Section 39 (1) (d) of the W.B.P.T. Act, 1997. Section 39(2)(d) of the said Act empowers the power of the controller. Section 39 (2) (d) of the act states “The controller shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, for the purpose of … (d) issuing commission for local investigation.” Chapter X of the said act deals with the appointment of controller and the other officers. Section 39 (2) (d) of the act states “The controller shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, for the purpose of … (d) issuing commission for local investigation.” Chapter X of the said act deals with the appointment of controller and the other officers. In the present case the said application was filed before the Learned Court below under Section 39 (d) for local inspection for ascertaining the points as stated in the petition. The relevant Chapter-X does not empower the Learned Court below to deal with the provision of Section 39 of the said Act, 1997. The above point was not pointed out by the learned advocates of both sides. If any order under Order 39 Rule 7 of the C.P.C. was passed by Learned Court on 3.4.07, it may be considered by this Court. But Learned Court passed the order on the basis of the application under Section 39 (d) of the Act 1997. The said section of the relevant Chapter-X of the Act 1997 does not empower the Learned Court to deal such provision. Therefore, the Learned Court below has acted without going through the relevant provision of the said act. The order dated 3.4.07 has no effect in the suit pending before the learned Court below. The order dated 3.4.07 is hereby set aside. The revisional application is allowed on contest without cost. The present application is disposed of accordingly.