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2011 DIGILAW 813 (CAL)

Gajadhar Prosad Shau v. Sambhunath Ram

2011-06-21

PRASENJIT MANDAL

body2011
Judgment :- Prasenjit Mandal, J. This application is at the instance of the plaintiffs and is directed against the Order No.43 dated September 26, 2007 passed by the learned Civil Judge (Junior Division), 2nd Court, Burdwan in Title Suit No.112 of 2006. The short fact is that the petitioners instituted an application under Section 6(1)(b) and (d) of the West Bengal Premises Tenancy Act, 1997 for recovery of possession of the suit premises as described in the Schedule of the application against the opposite party and the said application was treated as Title Suit No.112 of 2006 subsequently. The plaintiffs have contended that they became the owners of the property as described in Schedule ‘A’ and the property as described in Schedule ‘B’ which is part of the Schedule ‘A’ property was let out in favour of the defendant / opposite party at a monthly rent of Rs.43/- payable according to English Calendar Month. The plaintiffs have also contended that they got the property absolutely in view of a partition amongst the co-sharers and such fact was duly intimated to the defendant in the prior suit being Title Suit No.61 of 1983. The earlier suit was decreed by the learned Trial Judge and the first appeal preferred by the defendant was allowed setting aside the decree. Then, the second appeal was preferred which was dismissed on August 14, 2011 on the ground that the benefit of Section 17(4) of the West Bengal Premises Tenancy Act, 1956 was given to the tenant. Subsequently, the petitioners filed the said suit being Title Suit No.112 of 2006 on the ground of second default and for own use and occupation of the landlords. In that suit, the defendant / opposite party entered an appearance and filed an application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 contending inter alia, that he has been depositing the rent with the Trial Court where the Title Suit No.61 of 1983 was instituted up to Poush of 1411 B.S. to the credit of the petitioner no.1 and his brother and he prayed for allowing deposit of rent before the Court where the present suit has been instituted. While disposing of the said application, the learned Trial Judge has recorded that on perusal of the application under Section 17(2) and the copy of the plaint objection, it revealed that the plaintiff did not mention the particular date when the defendant became a defaulter. The defendant has contended that he is not a defaulter in paying rent in the absence of mentioning a specific date of default. But the relevant provisions, according to the 1997 Act, are quite different from the one as was in the previous suit. In the instant case, the petitioners filed the suit for recovery of possession on the ground stated therein. The defendant has clearly admitted or at least partially admitted that the petitioner no.1 is the landlord of the premises in suit. This is being the position, whenever any suit is instituted by the landlord for eviction on any of the grounds referred to in Section 6, the tenant is bound to pay to the landlord or deposit with the court, an amount of arrears of rent calculated at the rate at which it was paid and up to the end of the month previous to that in which the payment was made together with interest at the rate of 10 per cent per annum. If any dispute, as to the amount of rent payable by the tenant, is raised by the tenant, that dispute could be solved when the tenant filed an application under Section 7(2) of the said 1997 Act. Then, the question of getting benefit of protection against eviction arises and such an application under Section 7(2) of the 1997 Act shall be disposed of clearly indicating the period of default, if any, and if there is any default, such amount is to be paid within the time as per Section 7 of the said Act. On perusal of the impugned order, the learned Trial Judge has committed a mistake that the defendant has filed an application under Section 17(2) of the West Bengal Premises Tenancy Act, 1956. But, it can not be possible. It was a type of mistake and the application was filed under Section 7(2) of the 1997 Act. There is no clear indication as to the finding that in the earlier suit, the petitioners informed that they became the owner of the premises in suit by amicable partition amongst brothers. But, it can not be possible. It was a type of mistake and the application was filed under Section 7(2) of the 1997 Act. There is no clear indication as to the finding that in the earlier suit, the petitioners informed that they became the owner of the premises in suit by amicable partition amongst brothers. If it is so, if it deposit is made in the name of all the plaintiffs in the earlier suit, the same cannot be taken as consideration in the present suit at all. The findings of the learned Trial Judge are not clear at all. The learned Trial Judge has simply recorded that in absence of mentioning specific date of default, he has held that the tenant is not a defaulter in paying rent. There is no clear indication that what was the contention of the defendant in his application under Section 7(2), if any, instead of Section 17(2) as recorded by the learned Trial Judge and also what was the objection filed by the landlord against that application under Section 7(2) of the 1997 Act. The impugned order is, therefore, totally misleading and it will not help anything as to the findings about default. As recorded above, the petitioners have filed the suit not only on the ground of reasonable requirement but also for default. This being the position, the learned Trial Judge is required to come to a clear finding as to the application filed by the tenant under Section 7(2) of the 1997 Act [and not on 17(2) application]. The learned Trial Judge has, therefore, committed errors of law in passing the impugned order and the said order also suffers from vagueness and ambiguity. I am of the opinion that I have no other option but to set aside the impugned order directing the learned Trial Judge to dispose of the application under Section 7(2) filed by the tenant afresh. Accordingly, the revisional application is allowed. The impugned order is hereby set aside. The learned Trial Judge is directed to dispose of the application under Section 7 (2) filed by the tenant in the suit afresh within a period of two months from the date of communication of this order to him. If necessary, he shall take up the matter on day-to-day basis hearing in order to ensure the disposal of the matter within the aforesaid period. If necessary, he shall take up the matter on day-to-day basis hearing in order to ensure the disposal of the matter within the aforesaid period. 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 Advocates for the parties on their usual undertaking.