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2008 DIGILAW 693 (CAL)

Manik Lal Sett v. Hira Basu @ Surali Basu

2008-07-15

PARTHA SAKHA DATTA

body2008
JUDGMENT The order No. 127 dated 18.03.2008 of the learned Judge, 4th Bench of Presidency Small Causes Court, Calcutta in Ejectment Suit No. 106 of 1999 disposing of the applications under Section 17(2) and Section 17(2A)(b) of the West Bengal Premises Tenancy Act, 1956 whereby the plea of the defendant against existence of relationship of landlord and tenant under that Act was negatived is under challenge. 2. The plaintiff/opposite party No. 1 sought ejectment against the petitioners and also others under the West Bengal Premises Tenancy Act, 1956 on the ground of default in payment of rent and of subletting the suit premises to the defendant Nos. 3 to 9 without consent in writing of the plaintiff. 3. The defendant upon appearance sometime in April, 1995 claimed to be thika tenant under the erstwhile landlord and now under the Government of West Bengal after the promulgation of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, and accordingly under the law as it now stands there was no relationship of landlord and tenant between the parties. Another petition under Section 17 (2A)(b) of the Act was also put in raising the same plea with the prayer that in the event of the Court holding otherwise then the defendants/petitioners may be permitted to deposit the arrears rent in easy monthly instalments. It was also prayed that they may be permitted to deposit the arrears rent, if any, in instalments of Rs. 275/- per month. 4. A written statement was also put in sometime in June 1995 denying the relationship of landlord and tenant. It has been contended therein that one Putiram Kabi and Ors. were the thika tenants under the Zemindars Jatindra Nath Basu and Ors. in respect of the land. They raised construction on the suit plot and would pay the ground rent to the Zemindars. Putiram Kabi & Ors. having failed to pay the ground rent the landlord Jatindra Nath Basu and Ors. had instituted a suit against them in this Hon'ble Court. Then with the knowledge and consent of the said Zemindar Putiram Kabi and Ors. by registered deed of conveyance dated 04.01.1929 sold the construction on the land in favour of Manmatha Nath Kundu and Jatindra Mohan Seth. had instituted a suit against them in this Hon'ble Court. Then with the knowledge and consent of the said Zemindar Putiram Kabi and Ors. by registered deed of conveyance dated 04.01.1929 sold the construction on the land in favour of Manmatha Nath Kundu and Jatindra Mohan Seth. Thus, Manmatha Nath Kundu and Jatindra Mohan Seth became the joint thika tenants under the same landlords and then inducted bharatias under them in the said property and would collect rent from the bharatiyas to the knowledge of the zemindars and would pay ground rent to them who accepted the same by granting rent receipts therefor without raising objection. The defendant Nos. 1 and 2 are claimed to be the heirs of the said Manmatha Nath Kundu and Jatindra Mohan Seth whom the structure was sold by Putiram Kabi and Ors. on 04.01.1929. Thus, after the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 1981 came into force the defendant Nos. 1 and 2 are the thika tenants under the State of West Bengal. The plaintiffs allegation of default in payment of rent and of subletting had been denied. 5. Learned Judge, 4th Bench of the Presidency Small Causes Court at Calcutta heard the 17(2) and 17(2A)(b) petitions on the basis of evidence both oral and documentary, and passed an order holding that the defendant Nos. 1 and 2 who are the petitioners are tenants under the plaintiff/opposite party No. 1 in terms of the West Bengal Premises Tenancy Act, 1956 and holding so the petitioners were directed to deposit amount of rents found in arrears within a certain period of time. 6. Mr. J.R. Chatterjee, learned Senior Advocate appearing for the petitioners assailed the order on two-fold grounds, firstly, the learned Trial Court erroneously held that the petitioners are tenants under the plaintiff under the West Bengal Premises Tenancy Act, 1956, as evidence was adduced oral and documentary to the contrary. It has been argued that the petitioners filed original certified copy of the deed of conveyance dated 04.01.1929 executed by Putiram Kabi and Ors. in favour of Manmatha Nath Kundu and Jatindra Mohan Seth (Exbt. 1) and rent receipts (Exbt. 2 series) showing payment of ground rent for the months of Jaishtra and Ashar, 1336 B.S., of Aghrayan, Pous and Magh, 1374 B.S. granted by Ranjit Kumar Basu. in favour of Manmatha Nath Kundu and Jatindra Mohan Seth (Exbt. 1) and rent receipts (Exbt. 2 series) showing payment of ground rent for the months of Jaishtra and Ashar, 1336 B.S., of Aghrayan, Pous and Magh, 1374 B.S. granted by Ranjit Kumar Basu. Secondly; it has been contended that where consistently in the 17(2) and 17(2A) (b) petitions and also in the written statement a clear and specific plea has been taken denying the existence of relationship of landlord and tenant it was but incumbent on the part of the learned Trial Court to frame an issue i.e. "whether there exists relationship of landlord and tenant between the parties under the West Bengal Premises Tenancy Act, 1956?" and decide the issue along with the 17(2) and 17(2A)(b) petitions filed under the Act, 1956, and this having not been done, the finding made on the petitions under Section 17(2) and 17(2A)(b) are not binding on the defendant/petitioners on the ground that the said finding so arrived at without framing any issue cannot be said to be final finding for the purpose of trial of the suit; and even though the learned Trial Court has directed, upon holding the existence of the relationship between the parties, to deposit the arrears of rent the defendant cannot be said to be obligated upon to comply with the order only on the ground that the order failed to be final order and the defendants would be within their right to agitate the issue at the trial. According to Mr. Chatterjee, the order impugned suffers from illegality and causes prejudice to the petitioners because in the event of the defendants petitioners deciding not to comply with the order on the ground that it could not be a final order the learned Trial Court may be inclined at the instance of the plaintiff/opposite party No. 1 make an order striking out the defence against delivery of possession. Therefore, the order to be effective must have been one which could have dealt with the issue as a preliminary issue together with the pending 17(2) and 17(2A)(b) petitions under the Act, 1956. In support of the submission Mr. Chatterjee referred to the decisions in Synthetic Plywood Industries (P) Ltd. v. Smt. Manjulika Bhaduri & Ors., reported in 1998(1) CHN 387 , Mantu Naik v. Bankim Chandra Maity & Anr., 1997(1) CHN 1 and Ram Prasad Bajaj & Ors. In support of the submission Mr. Chatterjee referred to the decisions in Synthetic Plywood Industries (P) Ltd. v. Smt. Manjulika Bhaduri & Ors., reported in 1998(1) CHN 387 , Mantu Naik v. Bankim Chandra Maity & Anr., 1997(1) CHN 1 and Ram Prasad Bajaj & Ors. v. Development Builders (P) Ltd. & Ors., 1991 (1) CHN 443 . 7. Mr. Bidyut Kumar Banerjee, learned Senior Advocate appearing for the plaintiff/ opposite party No. 1 submitted that there cannot be any question of interfering with the order of the learned Judge in the Court below deciding the point of relationship of landlord and tenant through 17(2) and 17(2A)(b) petitions because firstly, the order has been passed upon consideration of the pleadings of the parties and of taking oral and documentary evidence and secondly, the mere fact that an issue was not framed which could have been an issue at the trial does not render the order impugned ineffective or infirm. According to Mr. Banerjee, a reading of Section 17(1), 17(2) and 17(2A)(b) of the Act, 1956 implies that when a dispute is raised whatever may be the nature of the dispute be it of relationship of landlord and tenant, or of abatement of rent or of determination of rent the Court has to decide such dispute in connection with 17(2) and 17(2A)(b) petitions and the law does not mandate that such dispute cannot be decided in isolation of the adjudication upon framing issue. Secondly, with the aid of the decision in Sri Satyanarayan and Ors. v. S.C. Chunder as reported in 2001 (1) CHN 641 (DB) it has to be said that as the learned Trial Court has found that the structure in question being evidently a pucca structure the invocation of the Calcutta Thika Tenancy Act (Acquisition and Regulation) Act, 1981 does not arise. Therefore, in the face of the deed of partition (Exbt. E), probate granted by the appropriate Court (Exbt. F), bills issued by the Corporation of Calcutta (Exbt. 8 series), the notice issued by the CMC (Exbt. C series) and the oral evidence clearly pointing out the plaintiff/opposite party No. 1's ownership to the property and that too the property being of the character of a pucca structure, it cannot be held that the Calcutta Thika Tenancy Act had any manner of application to the suit property in question. 8. C series) and the oral evidence clearly pointing out the plaintiff/opposite party No. 1's ownership to the property and that too the property being of the character of a pucca structure, it cannot be held that the Calcutta Thika Tenancy Act had any manner of application to the suit property in question. 8. The question as to whether the order impugned is bad in law because of it not deciding the relevant issue along with the 17(2) and 17(2A)(b) petitions under the Act, 1956 has to be decided first. The question was raised before this Court in a number of cases and the decision in Ram Prasad Bajaj & Ors. (supra) is to the effect that a decision as to the dispute relating to existence of relationship of landlord and tenant render under Section 17(2) is a decision for the purpose of disposal of the said application and cannot form the foundation of the final decision in the suit. In this decision the decisions in Aloka Ghosh v. Inspector General, 66 CWN 302, Union of India v. N.K. Chowdhury, 78 CWN 371, Parul Banerjee v. Ananda Kumar Agarwala, 1979 (2) CLJ 297 , Nanda Gopal Das v. Rabindra Nath Dey, 1987 (1) CHN 362 , Biswabhusan Bose v. Kusum Agarwala, 1981 (1) CLJ 1 were referred to and surveyed. This was a decision by an Hon'ble Single Judge holding as above. In Biswabhusan Bose v. Kusum Agarwala (supra) the Division Bench of this Court held that an order adjudicating a dispute under Section 17(2) is not always tentative in nature and it may involve adjudication of an issue overlapping one of the issues involved in the suit itself when the statute contemplates that such a dispute has to be finally adjudicated, and when the statute further provides consequences that are to follow such adjudication. In Biswanath Roy v. Annapurna Roy, 65 CWN 149 this Court held that an appropriate order under Section 17(2) of the Act cannot be passed without determination of the dispute as to the existence of relationship of landlord and tenant. In this case plea was taken by the defendant that his grand sons and not he who were the tenants in the suit premises. In this case plea was taken by the defendant that his grand sons and not he who were the tenants in the suit premises. In Aloka Ghosh v. Inspector General (supra) the Division Bench of this Court held that the Court may take up a material issue along with the application under Section 17(3) of the Act and decide the two together so that the decision on that issue will be final for the purpose of the suit. The same was also the decision in Nandagopal Das v. Rabindra Nath Dey (supra). In Union of India v. N.K. Chowdhury (supra) the Division Bench of this Court opined that the Court has to decide an issue as to relationship of landlord and tenant before it passes an order under Section 17(2) or 17(3) of the Act. Their Lordships held as follows:- "It has been already stated that the principal defence of the petitioner in the written statement is absence of relationship of landlord' and tenant between the parties. It is unfortunate that the learned Chief Judge did not think it proper to decide the dispute as to the relationship of landlord and tenant between the parties. When a tenant takes the plea of absence of relationship of landlord and tenant between the parties, such plea must be decided before any order is passed directing the tenant to pay or deposit rent. The proper course for the Court is to frame an issue in regard to that plea and decide the same before it passes any order under Sections 17(2) or 17(3) of the Act. The petitioner also took the plea of the absence of relationship in the application under Section 17(2) and thereby raised a dispute as to the amount of rent. It appears that an issue has been framed by the learned Chief Judge in that regard and he could have decided that issue simultaneously with the hearing of the application under Section 17(2)." 9. And the same view was reiterated by a later Division Bench decision in Parul Banerjee v. Ananda Kumar Agarwal, 1979 (2) CLJ 297 where it was held that the issue as to relationship of landlord and tenant might be decided as an issue in the suit along with the application of the tenant under Section 17(2) of the Act. 10. And the same view was reiterated by a later Division Bench decision in Parul Banerjee v. Ananda Kumar Agarwal, 1979 (2) CLJ 297 where it was held that the issue as to relationship of landlord and tenant might be decided as an issue in the suit along with the application of the tenant under Section 17(2) of the Act. 10. The question is what would be the effect if the trial Court decides and disposes of the 17(2) and 17(2A)(b) petitions involving the relationship of landlord and tenant without framing issue thereon, or whether such a decision upon 17(2) and 17(2A)(b) without framing issue can be recorded as infirm or without jurisdiction. An Hon'ble Single Judge in the Mantu Naik v. Bankim & Anr. (supra) held that under the amended provisions of Order 14 Rules 1 and 2 of the C.P.C. it is permissible and justified for the Court to take up and decide an issue of fact along with an interlocutory application in isolation of other issues framed in the suit and thereafter to pronounce judgment on all the issues. The previous decisions of this Court as referred to above were also considered in this decision. The question has been given a fresh look in a later Division Bench Judgment in Synthetic Plywood Industries Ltd. (supra) where it was held that it was permissible for the Court, rather desirable that the issue should be taken up relating to such relationship and the trial Court having taken up the issue in question did not run counter to the policy of Order 14 Rule 2 of the C.P.C. Their Lordships of the Division Bench held as follows:- "Defence of a defendant cannot be struck out under the provision of Section 17(3) of the Act if he raises a dispute as to relationship of landlord and tenant between the parties unless issue as to relationship of landlord and tenant between the parties is decided against the defendant. Otherwise, if without deciding the aforesaid issue, the defence is struck out, in that case the defendant will not be able to lead evidence in support of his plea that he is not a tenant under the plaintiff even at the time of trial. Otherwise, if without deciding the aforesaid issue, the defence is struck out, in that case the defendant will not be able to lead evidence in support of his plea that he is not a tenant under the plaintiff even at the time of trial. Therefore, the consistent view of this Court for about last 40 years is that if any dispute is raised by a defendant to the aforesaid effect even without filling an application under Section 17(2) of the Act, before striking out his defence on the ground of non-compliance of 17(1) of the Act, the Court must decide that issue." 11. In view of the legal position obtaining under the given situation when a decision is rendered under Section 17(2) asking the defendant to deposit the arrears of rent affirming the existence of relationship of landlord and tenant without framing any issue thereon the question would arise what legal consequences would follow if the order under Section 17(2) or 17(2A)(b) of the Act is not complied with by the defendant. The order cannot be basically illegal; it being a tentative nature but in the event of non-compliance with the order defence under Section 17(3) of the Act cannot be struck out. It follows therefore, that such an order becomes infractuous because invocation of the provision of Section 17(3) does not necessarily follow from non-compliance with the order passed under Section 17(2). Thus, the position would be that the defendant will be at liberty to adduce evidence both oral and documentary to speak of absence of relationship at the trial with respect to an appropriate issue necessarily to be framed in view of the pleadings of the parties. If at the trial the issue is answered in favour of the defendant, it is one thing; but it is quite another if the issue is answered in favour of the landlord and in the event of the issue being answered in favour of the landlord then the defendant would be insisting on protection under Section 17(4) of the Act by an order to grant instalment to make the arrears of deposit. This would become a cumbersome situation. This would become a cumbersome situation. Thus, an order under Section 17(2) and 17(2A)(b) to be binding upon the defendant the consistent view of this Court has been that the issue must be decided along with the 17(2) application and the decision on that issue would be a final one and such a decision on a single issue would not, as has been held in Mantu Naik (supra), militate against the principle of Order 14 Rules 1 and 2 of the C.P.C. In that view of the matter it is but appropriate that the learned Trial Court decides the 17(2) and 17(2A)(b) application along with the issue to be framed, if not framed earlier. The order impugned does not show that the learned Trial Court has decided the issue after framing one such together with the application under Section 17(2) and 17(2A)(b) of the Act. If the order would have reflected that the issue has also been decided once for all after framing issues then the position would have been in order, regardless of whether the finding of the issue was legally correct or not. Therefore, I am not inclined to go into the merit of the finding in the above circumstance. But one thing that has been pointed out before me by the learned Advocates for the petitioner is that the learned Trial Court has recorded that the plaintiff filed the certified copy of the Deed of Conveyance dated 04.01.1929 executed by Putiram Kabi & Ors. in favour of Manmatha Nath Kundu and Jatindra Mohan Seth. According to Mr. Chatterjee, learned Advocate appearing for the petitioner it was not the deed filed by the plaintiff but by the defendant and it is the defendant's case that the defendant Nos. 1 and 2 are the legal heirs of Manmatha Nath Kundu and Jatindra Mohan Seth, the transferee from Putiram Kabi and Ors. by kobala dated 04.01.1929 in respect of the structure. It has been further pointed that the learned Trial Court referred to a Deed of Partition (Exbt. E) and a Certificate of Probate (Exbt. F) but without elaborating how by that Deed of Partition and the Probate the plaintiff could get title the property inclusive of land and structure. by kobala dated 04.01.1929 in respect of the structure. It has been further pointed that the learned Trial Court referred to a Deed of Partition (Exbt. E) and a Certificate of Probate (Exbt. F) but without elaborating how by that Deed of Partition and the Probate the plaintiff could get title the property inclusive of land and structure. It has been stated that the order impugned does not disclose the alleged devolution of title in favour of the plaintiff and the alleged documents of title of the plaintiff have not been considered, vis-a-vis Exbt. 1, the kobala dated 04.01.1929. The learned Trial Court will analyze the facts in details as the matter goes back on remand. 12. In the circumstance, the revisional application is allowed. The order impugned is set aside. The matter is remitted back to the learned Trial Court which will frame an issue as to the existence or otherwise of the relationship of the landlord and tenant between the parties, if not framed earlier, and decide that issue together with the application under Section 17(2) and 17(2A)(b) of the Act on the basis of evidence, oral and documentary, as are on record and as may be further adduced by the parties. 13. A copy of the judgment shall be sent to the learned Judge, 4th Bench, Presidency Small Causes Court, Calcutta for information and necessary action. Urgent xerox certified copies of this judgment, if applied for, be given to the parties as expeditiously as possible.