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2010 DIGILAW 959 (CAL)

Ram Pratap Barasia v. Sanjoy Kumar Chowdhury

2010-08-11

TAPAN KUMAR DUTT

body2010
JUDGMENT 1. THIS Court has heard the learned Advocates for the respective parties. 2. IN CO. No.2812 of 2007 the petitioner has challenged an order whereby the learned Small Causes Court at Calcutta concerned has rejected the petitioner's application under Section 151 C.P.C in which the petitioner prayed for transfer of the application under Section 26(3) of the West Bengal Premises Tenancy Act, 1997 pending before the learned Rent Controller, Calcutta to the said learned Small Causes Court at Calcutta. IN the learned Small Causes Court at Calcutta concerned the Ejectment Suit No. 181 of 2003-C is pending and such Ejectment Suit has been filed by the landlord-Sanjay Kumar Chowdhury. It appears that the Ejectment Suit has been filed on various grounds including the ground of subletting. IN the application under Section 26(3) of the said Act of 1997 the petitioner has prayed for an order declaring that the interest of the tenant in the shop room concerned shall cease and that the petitioner shall become a tenant in respect of the said shop room strictly under the landlord/opposite party. The petitioner has also prayed for an order for fixation of the rents payable by the petitioner to the landlords. It appears that the petitioner made a prayer before the learned Small Causes Court at Calcutta that the said application under Section 26(3) of the said Act of 1997 which is pending before the Rent Controller concerned should be transferred to the Court of the Small Causes Court at Calcutta concerned where the eviction suit is pending and the two proceedings should be consolidated. The learned Third Bench, Small Causes Court at Calcutta was of the view that it does not have the supervisory power over the Rent Controller, Calcutta and as such the application should be dismissed. Accordingly, the said learned Court dismissed the said application. The petitioner has filed CO. No.2812 of 2007 against the said order of the . learned Judge, Third Bench, Small Causes Court at Calcutta. The petitioner has also filed an application under Section 24 C.P.C (CO.No.3090 of 2007) before this Court for transfer of the said application under Section 26(3) of the said Act of 1997 which is pending before the Rent Controller, Calcutta to the Court of the learned Judge, Third Bench, Small Causes Court at Calcutta and both the proceedings should be tagged together. 3. 3. THE learned Advocates for the respective parties submit that the said Ejectment Suit is now pending before the learned Chief Judge, Presidency Small Causes Court, Calcutta and therefore the learned Advocate for the petitioner prays that the application under Section 26(3) of the said Act of 1997 should be now transferred to the Court of the learned Chief Judge, Presidency Small Causes Court at Calcutta. THE learned Advocate for the petitioner submitted that in order to avoid conflict of decisions and multiplicity of proceedings the proposed transfer should be made. He has cited a decision reported at AIR 1956 Supreme Court 66 and referred to Paragraph 18 of the said decision wherein it has been stated that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trapping of a judicial tribunal, power to give decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement. He has referred to Section 26(3) of the said Act and submitted that in the said application also the Rent Controller is required to deliver a definitive judgment which has the finality and authoritativeness and as such it is a judicial pronouncement and therefore, according to him the Rent Controller comes very much within the ambit of Section 24 of the Civil Procedure Code. THE functions and duties which are required to be discharged for the Rent Controller as envisaged under Section 26 of the said Act of 1997 is just like that of a Court. He cited another decision reported at AIR 1982 Calcutta 134 and referred to Paragraph 5 of the said reports where the Hon'ble Court held that where the Rent Controller was required to fix fair rent on evidence the Rent Controller was required to pronounce a judgment too and, therefore, it should not be laid down that the Rent Controller is not a Court. 4. HE referred to another judgment reported at 59 Calcutta Weekly Notes 481 and referred to a passage appearing at page 490 where the Hon'ble Supreme Court held that the Rent Controller is at least a quasi judicial tribunal having strong affinities to a Court strictly so called and in proceedings before him, the rule requiring leave to proceed against a Receiver will apply. The said learned Advocate submitted that thus it will appear that the Rent Controller has all the trappings of a Court. The said learned Advocate cited another decision reported at 1979(4) SCC 358 wherein the Hon'ble Supreme Court was pleased to hold that where two suits raising common questions of facts and laws between parties common to both the suits are pending in two different Courts, it is generally in the interests of justice to transfer one of those suits to other forum to be tried by the same Court, with consequent avoidance of multiplicity in the trial of the same issues and the risk of conflicting decisions. HE, therefore, argued that the transfer of the application under Section 26(8) of the said Act of 1997 and consolidation of the two proceedings as prayed for by the petitioner should be granted. The learned Advocate appearing on behalf of the landlord/opposite party submitted that the Rent Controller is not a Court and that it is only personal designate and it has only some of the powers granted by the Civil Court. He referred to Section 39 of the said Act of 1997. He further argued that in view of Section 44 of the said Act of 1997 the application under Section 26(3) of the said Act cannot be transferred to the Small Causes Court at Calcutta. He cited a judgment reported at AIR 2003 Supreme Court 4591, in support of his contention that mere fact that the Rent Controller is an authority which is deemed to be Court only for a limited and specific purposes, cannot make it a Court for all or any other purpose. Reference may be made to the decision reported at 2006(1) CLJ (Calcutta) 614. In Paragraph 22 of the said reports the Hon'ble Court held that it does not stand to reason that a Civil Judge having jurisdiction to entertain a matter relating to a dispute qua the landlord and tenant in respect of the tenanted premises would cease to have jurisdiction when the same tenant complains of disruption and/or curtailment of essential services in respect of the same premises. It was further observed in the said reports that such a position would be extremely disharmonious and will certainly give rise to multiplicity of proceedings between the same parties in respect of the same premises causing an additional prejudice to both the parties of having to undergo harassments in different forums when the same can be decided by the Civil Judge having jurisdiction to entertain a matter relating to recovery of possession. Another decision reported at 2007(2) CHN 636 may be looked into. In Paragraph 32 of the said reports the Hon'ble Court held "No doubt, Section 44 of the West Bengal Premises Tenancy Act, 1997 stands as a big hurdle to a tenant in respect of a premises in approaching the Civil Court with a prayer for making repairs. It cannot be denied that the said Act itself has specific provisions for redressal of such grievance. Nothing can stand in the way of a tenant approaching the Rent Controller with such grievance". In Paragraph 33 of the said reports the Hon'ble Court was pleased to observe. "It is not in dispute that the premises in question is in an extremely dilapidated condition and demands extensive repair. Having regard to the fact that the opposite parties/plaintiffs approached the learned Court with a prayer for injunction, it cannot, perhaps, be said that the petitioners tenants have any statutory restriction to raise their voice in the said pending suit and seek permission for repair. It cannot be denied that if such voice is not heard and the petitioners/tenants are directed towards the doors of the Rent Controller, there will always be a possibility of conflicting approach, if not decisions. There will be multiplicity of proceedings as well. Apprehension of the petitioners, as ventilated on their behalf, that the Rent Controller in view of the pending Civil Suit and the stand taken by the learned Court in connection with the same may be under painful compulsion to pause and then decide not to act, cannot be brushed aside." 5. IT will thus appear from the said reported cases that even though a restriction has been imposed under Section 44 of the said Act of 1997 the restriction so imposed is not an absolute bar in certain circumstances. In the present case the suit for eviction, inter alia, on the ground of subletting is pending before the learned Small Causes Court at Calcutta concerned. In the present case the suit for eviction, inter alia, on the ground of subletting is pending before the learned Small Causes Court at Calcutta concerned. In the application under Section 26(3) of the said Act of 1997 the question that is required to be decided is whether or not the petitioner has become a lawful tenant directly under the landlord when he was inducted as a subtenant initially in the suit premises. Therefore, at least the issue with regard to subletting is very much connected with the merits of the application under Section 26(3) of the said Act of 1997 and most probably there will be common question of facts which will be required to be decided by the Court concerned. 6. IN such circumstances, this Court is of the view that Section 44 of the said Act of 1997 cannot stand in the way of transferring the application under Section 26(3) to the learned Small Causes Court at Calcutta concerned so that the same Court will have the opportunity to decide the two proceedings namely, the suit for eviction, inter alia, on the ground of subletting and also the application under Section 26(3). It cannot be said in view of the decisions cited at the bar as indicated above that the Rent Controller does not come within the ambit of Section 24 C.P.C. In view of the discussions made above, the application under Section 26(3) of the said Act of 1997 which is pending before the learned Rent Controller, Calcutta shall now be transferred to the Court of the learned Chief Judge, Small Causes Court at Calcutta and the learned Chief Judge Small Causes Court at Calcutta shall decide the two matters together i.e. the suit for eviction and also the application under Section 26(3). The records of the said application under Section 26(3) of the said Act of 1997 should also be transferred from the learned Rent Controller, Calcutta to the Court of the learned Chief Judge, Small Causes Court at Calcutta to enable the said learned Chief Judge, Small Causes Court at Calcutta to try the suit being Ejectment Suit No. 181 of 2003 and also the application under Section 26(3) of the said Act of 1997 being R.C. Case No. 134 of 2003 together. 7. THE C.O. No.2812 of 2007 and C.O. No.3090 of 2007 stand disposed of. 7. THE C.O. No.2812 of 2007 and C.O. No.3090 of 2007 stand disposed of. In view of the order passed above the application being CAN. No. 3282 of 2010 also stands disposed of. 8. AFTER the above order is passed the learned Advocate appearing on behalf of the landlord/opposite party prays for stay of operation of this order for two months. The learned Advocate for the petitioner opposes such prayer and submits that in the event such stay is granted then the proceedings in the Ejectment Suit and the proceedings before the learned Rent Controller should also be stayed for two months. Having heard the learned Advocates for the respective parties, this Court grants stay of operation of this order for a period of two months and at the same time this Court directs that the proceedings in the said Ejectment Suit No. 181 of 2003 and R.C. Case No. 134 of 2003 shall also remain stayed for two months.