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2010 DIGILAW 976 (CAL)

Basudeb Dey v. Purna Chandra Das

2010-08-13

PRASENJIT MANDAL

body2010
JUDGMENT Prasenjit Mandal, J. 1. THIS application is at the instance of the defendants and is directed against the order no.81 dated November 23, 2009 passed by the learned Civil Judge (Junior Division), First Court, Katwa in Title Suit No.103 of 2005 thereby disposing an application under Section 7 (2) of the West Bengal Premises Tenancy Act by directing the defendant to deposit arrears of rent for 96 months @ Rs.80 per month along with 10% interest thereon by two instalments. 2. THE plaintiff/opposite party filed a suit for eviction of the defendants/petitioners from the suit property as described in the schedule of the plaint on the ground of default and reasonable requirement. In that suit, the defendants/petitioners appeared and filed an application under Section 7 (2) of the West Bengal Premises Tenancy Act, 1997 contending, inter alia, that they are tenants in respect of the suit property at a rental of Rs.80 per month payable to Bengali calendar month. They have paid the rents to the landlord directly and after appearance in the suit, they have been depositing the current rent in the suit. However, they have contended that they are not defaulters in payment of rent. They have also expressed that if there is any arrears of rent, they may be permitted to deposit the arrears of rent by instalments. Both the parties adduced evidence over such application and its objection, and thereafter on the basis of the evidence adduced by the parties and on hearing argument thereon, the learned Civil Judge (Junior Division) has passed the impugned order in the manner as indicated above. Being aggrieved by the impugned order, the defendants/petitioners have preferred this application. Ms. T. Chanda, learned Advocate appearing on behalf of the petitioners, submits that in fact there is no arrears of rent as per evidence on record. The original tenant died and after death of the original tenant, the plaintiff/opposite party accepted the brother of the original tenant as their tenant and the present petitioners are now in possession of the suit property and so they are the tenants in respect of the suit property. There is no dispute on that. The original tenant died and after death of the original tenant, the plaintiff/opposite party accepted the brother of the original tenant as their tenant and the present petitioners are now in possession of the suit property and so they are the tenants in respect of the suit property. There is no dispute on that. He contends that as per evidence on record there is no arrear of rent at all but the learned Trial Judge has come to a wrong conclusion that since no rent receipt has been filed, it shall be deemed that the defendants/petitioners are defaulters in payment of rent since Magh 1404 B.S., i.e., for 96 months. Thereafter, the current rents are being deposited in the Court. Such findings are contrary to the evidence on record. 3. ON the other hand, Mr. Mukherjee, learned Advocate appearing on behalf of the landlord/opposite party, submits that since the defendants/petitioners have failed to file any rent receipt in support of their contention as per Section 21 of the West Bengal Premises Tenancy Act, the learned Trial Judge has rightly held that the defendants/tenants are defaulters in payment of rent for the above period. So there is nothing to interfere with impugned order. So the application should be dismissed. Therefore, the point that has emerged for decision is whether the impugned order could be sustained. After hearing the learned Advocate for the defendants/petitioners and for the plaintiff/opposite party and on perusal of the materials on record, I find that admittedly the defendants/petitioners are now tenants under the plaintiff/opposite party at a monthly rental of Rs.80 per month as per Bengali calendar month. The plaintiff/landlord has claimed that the defendants/petitioners are defaulters in payment of rent since Magh, 1404 B.S. The learned Civil Judge (Junior Division) has disposed of the application under Section 7 (2) of the Act of 1997 upon recording evidence on behalf of both the sides. During cross-examination of the plaintiff/opposite party, he has admitted that Santipada Dey, i.e., the original defendant, paid all the rents up to the filing of the suit. But on scrutiny of the impugned order, I find that such admission of the plaintiff/landlord has not been considered by the learned Civil Judge (Junior Division). During cross-examination of the plaintiff/opposite party, he has admitted that Santipada Dey, i.e., the original defendant, paid all the rents up to the filing of the suit. But on scrutiny of the impugned order, I find that such admission of the plaintiff/landlord has not been considered by the learned Civil Judge (Junior Division). If such admission is taken into consideration, the defendants/petitioners could not be held defaulters in payment of arrears of rent since Magh 1404 B.S. Therefore, I am of the view that the findings of the learned Civil Judge (Junior Division) is perverse and it cannot be supported. All the materials placed for disposal of the application under Section 7 (2) of the Act of 1997 are not before this Bench and so this Court is not in a position to decide what are the materials in support of the respective contentions of the parties. 4. THEREFORE, without going into details about the default, etc., I am of the view that it would be fit an proper to remand the matter before the learned Civil Judge (Junior Division) for decision afresh after taking the entire materials on record as well as the admission of the plaintiff/landlord in his deposition. Therefore, the impugned order cannot be sustained. It should be set aside. The application, therefore, succeeds. It is allowed. The impugned order is hereby set aside. The learned Civil Judge (Junior Division) is directed to dispose of the application under Section 7 (2) of the Act of 1997 afresh within a period of 30 days from the date of communication of this order in the manner as indicated above. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocate for the parties on their usual undertaking.