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2010 DIGILAW 952 (CAL)

Sk. Abdul Sukur v. Basra Khatun

2010-08-10

PRASENJIT MANDAL

body2010
JUDGMENT Prasenjit Mandal, J. 1. THESE two applications have been filed by the plaintiff and the defendant separately against the order no.59 dated August 26, 2009 passed by the learned Civil Judge (Junior Division), Fourth Court, Howrah in Title Suit No.260 of 2005 thereby disposing of an application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997. 2. SINCE both the parties are aggrieved by the said common order, these two applications are disposed of by this common judgment. The opposite party instituted a suit for eviction, khas possession and mesne profits against the petitioner. According to the plaint case, the defendant was inducted as a tenant under the plaintiff in respect of one shop room at Mouza Bankra, Dag No.336 under P.S. Domjur, District : Howrah at a rental of Rs.150/- per month according to English calendar month. The defendant defaulted in making payment of rent since October, 1992. Moreover, he has been using the said tenanted premises for commercial purposes. The plaintiff requires the suit premises for her use and occupation. The defendant appeared in the suit and filed a written statement. He also filed an application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 raising the dispute of landlady and tenant between the parties and contended that his wife Jamila Khatoon was the tenant in the suit premises and she was inducted by one, Sk. Faruk, husband of the plaintiff, more than 40 years ago at a monthly rental of Rs.30/- per month. That application was disposed of by the impugned order. Being aggrieved, the defendant has preferred this application. 3. IT is the specific case of the defendant/petitioner that Jamila Khatoon was the tenant with regard to the suit premises and such tenancy has not been determined by any notice and as such the suit is not maintainable. Alternatively, it can be said that question of relationship of landlord and tenant has been raised by the defendant. In this regard, the observation of the learned Trial Judge is that the husband and the wife form one unit and since the wife has no independent income, as per evidence on record, she could not be treated as a tenant at all. Such finding of the learned Trial Judge, I am of the view, cannot be supported at all. In this regard, the observation of the learned Trial Judge is that the husband and the wife form one unit and since the wife has no independent income, as per evidence on record, she could not be treated as a tenant at all. Such finding of the learned Trial Judge, I am of the view, cannot be supported at all. Therefore, I am of the view that the findings arrived at by the learned Trial Judge cannot be supported. Instead of discussing into details, I am of the view that the matter should be remanded back to the learned Trial Judge for decision afresh upon giving the parties an opportunity of adducing evidence in support of their respective contentions. 4. ACCORDINGLY, the order impugned is hereby set aside. The learned Trial Judge is directed to dispose of the application under Section 7(2) of the West Bengal Premises Tenancy Act afresh after giving opportunities to the parties to adduce evidence in support of their respective contentions. Such exercise must be done by the learned Trial Judge within two months from the date of communication of the order. Thereafter, he shall proceed with the suit in accordance with law. 5. SUCH findings are for the purpose of disposal of the application. The learned Trial Judge shall arrive at a conclusion independently without being influenced by above orders. Considering the circumstances, there will be no order as to costs.