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2011 DIGILAW 845 (CAL)

Priyalal Nath v. Shefali Poddar

2011-06-28

RAGHUNATH BHATTACHARYA

body2011
Judgment :- Raghunath Bhattacharya, J. The hearing stems from an application under Article 227 of the Constitution of India filed by the defendant / petitioner praying for revision of the order dated 19.02.2008, 21.04.2009 and 08.09.2009 passed by Smt. Madhuchhanda Bose, Civil Judge (Senior Division), 5th Court at Alipore in T.S. No. 44 of 2007. Plaintiff Smt. Shefali Poddar filed a suit for eviction under West Bengal Premises Tenancy Ac. The petitioner / defendant filed an application under Section 17(2) of W.B.P.T. Act inter alia denying the relationship of landlord and tenant between the parties. Learned Court below vide her order dated 19.02.2008 dispose of the said application under Section 17(2) of the W.B.P.T. Act holding that petitioner was a defaulter in payment of rent. The learned Court below has not decided the question of relationship of landlord and tenant between the parties to the litigacy. Opposite party / landlord filed an application under Section 17(3) of the Act and said petition was disposed of. Petitioner / defendant came to know about the fate of his application under Section 17(2) of the Act filed an application under Section 151 C.P.C. for recalling the order dated 19.02.2008 which was rejected. Being aggrieved by and dissatisfied with the said order petitioner / defendant filed the instant revisional application. The instant revisional application was contested by the opposite party / plaintiff. It was pointed out by the learned Lawyer appearing for the plaintiff / opposite party that in paragraph 6 of the application defendant / tenant admitted that he was a tenant under the present plaintiff. I have gone through the paragraph 6. Though in my opinion the paragraph 6 was not drafted properly yet from the entire petition it appears that defendant / tenant used to pay rent to the earlier landlady Smt. Kaushalya Poddar and Smt. Kaushalya Poddar never informed the tenant that she has already sold away the property to the present plaintiff. Learned Lawyer for the opposite party/ plaintiff also referred to a decision reported in (1976) 4 SCC 1966 I have gone through the said reported decision of Hon’ble Apex Court and in my opinion the said decision is not applicable in the instant application. Learned Lawyer for the petitioner/tenant filed a decision reported in AIR 1985 Calcutta 83 I have gone through the said decision carefully. Learned Lawyer for the petitioner/tenant filed a decision reported in AIR 1985 Calcutta 83 I have gone through the said decision carefully. Admittedly tenant / petitioner has challenged the relationship of landlord or tenant. According to the petitioner he used to tender rent to the erstwhile landlord and she accepted the rent. Even rent was tendered to her by money order which she refused. Meanwhile present plaintiff after purchasing the property from Smt. Kaushalya Devi filed the instant suit for eviction. It was pointed out by Mr. Mukherjee appearing for the opposite party that defendant / tenant was a defaulter and he is not complied the order passed by the trial Court. This revision application has no legs to stand upon. While learned Counsel Mr. Saha appearing for the petitioner / tenant has pointed out that there was some inherent defects in the order passed by the learned Trial Court. Admittedly in my humble opinion learned Trial Court should have dispose of the application under 17(2) in proper perspective. Learned Trial Court must determine the relationship of landlord and tenant but she had kept the issue open and came to a finding that defendant was a defaulter. In my opinion there is an inherent defect in the said order and the order passed by the learned Court below is liable to be set aside. This civil revision being No. 335 of 2010 is hereby allowed on contest but without cost in the circumstances. Learned Court below is hereby directed to dispose of the application. The order passed by the learned Court below dated 19.02.2008 and onwards is hereby set aside. Learned Trial Court is hereby directed to hear the defendant application under 17(2) of W.B.P.T. Act afresh and passed a reasoned order within a month from the date of receipt of the order of this Court. Urgent photostat certified copy, if applied for, be handed over to the parties as early as possible.