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Calcutta High Court · body

2008 DIGILAW 436 (CAL)

Ashim Kumar Das v. Pratyush Majumdar

2008-04-24

B.Bhattacharya, Rudrendra Nath Banerjee

body2008
JUDGMENT 1. THIS first appeal is at the instance of the defendants in a suit for eviction on the ground of default in payment of rent and is preferred against the judgment and decree dated January 31, 1997 passed by the learned Judge, Eighth Bench, city Civil Court at Calcutta, in Ejectment Suit No. 726 of 1978 thereby giving protection to the appellants under Sections 17 (4) of the West Bengal Premises tenancy Act and awarding costs against them as provided therein. 2. THE suit, out of which the present appeal arises, was filed on the ground of default in payment of rent and reasonable requirement. The specific case made out by the plaintiffs/respondents was that their predecessor purchased the suit property from the then owner of the property by virtue of a registered sale-deed and after his death, they had become the owners of the property. One Baidyanath das, the predecessor-in-interest of the defendants, was a tenant under the predecessor-in-interest of the plaintiffs in respect of the property and after his death, the present defendants have now become tenants under the plaintiffs. According to the plaintiffs, they reasonably required the suit property for their own occupation and apart from the said ground, they also prayed for eviction of the defendants on the ground of default in payment of rent. The defendants entered appearance and filed written statement thereby denying the material allegations made in the plaint and the specific defence of the defendants was that they were the owners of the property and there existed no relationship of landlord and tenant between the parties. The defendants also filed an application under Section 17 (2) of the West Bengal Premises Tenancy Act thereby disputed the relationship of landlord and tenant between the parties. 3. AT the time of hearing of the application under Section 17 (2) of the Act, the issue as to the relationship of landlord and tenant between the parties was also taken up and the learned Trial Judge, after taking into consideration the evidence adduced at that stage, arrived at the conclusion that there existed relationship of landlord and tenant between the parties. 4. THE defendants complied with the direction given on the application under section 17 (2) of the Act by making the payment of the amount and the plaintiffs at the time of hearing did not press the ground of reasonable requirement. 4. THE defendants complied with the direction given on the application under section 17 (2) of the Act by making the payment of the amount and the plaintiffs at the time of hearing did not press the ground of reasonable requirement. Ultimately, the learned Trial Judge concluded that the defendants having complied with the provision contained in Section 17 (2) of the Act were entitled to get protection under Section 17 (4) of the Act being the defaulter for the first time but awarded costs in favour of the plaintiffs as provided in Section 17 (4) of the act. 5. BEING dissatisfied, two of the defendants have come up with the present first appeal. 6. MR Chatterjee, the learned advocate appearing on behalf of the appellants, strenuously contended before us that the learned Trial Judge erred in law in passing a decree for costs, inasmuch as, the plaintiffs did not press for eviction, as it appears from the judgment impugned. Mr Chatterjee further contends that the plaintiffs not having pressed the ground of reasonable requirement, the ownership of the property was not proved and at the same time, it is a case where the learned Trial Judge ought to have held that there existed no relationship of landlord and tenant between the parties. Mr Chatterjee sought to attack the finding arrived at the time of hearing of the issue relationship of landlord and tenant between the parties by taking aid of Section 105 of the Code of Civil Procedure. 7. AFTER hearing the learned counsel for the parties and after going through the materials on record, we find that the specific defence taken by the defendants was that they are the owners of the property but no document was produced in support of the ownership; on the other hand, the plaintiffs proved the deed of purchase by their predecessor and also proved counterfoil of the rent receipt. 8. IT is, therefore, apparent that from the materials on record, the relationship of landlord and tenant between the parties has been established and the defendants having complied with the provision contained in Section 17 (2) of the Act by making payment of the arrears, the learned Trial Judge rightly gave protection under Section 17 (4) of the Act and awarded costs in favour of the plaintiffs. We are unable to accept the contention of Mr Chatterjee that the ground of eviction was not pressed. It is clear that the ground of reasonable requirement was not pressed and the ground of default was very much pressed, as it appears from the fact that the appellants complied with the provision contained in Section 17 (2) of the Act. 9. WE, therefore, find no merit in this appeal and the same is accordingly dismissed. In the facts and circumstances, there will be, however, no order as to costs.