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2011 DIGILAW 909 (CAL)

Gunadhar Mallick v. Shashank Singhania

2011-07-11

HARISH TANDAN

body2011
JUDGMENT 1. THIS revisional application is directed against judgment and order dated 31st August 2004 passed by the learned Judge, 7th Bench, City Civil Court in Misc. Appeal No. 38 of 2002 affirming Order No. 12 dated 10th June 2002 passed by learned 4th Judge, Presidency Small Causes Court at Calcutta, in ejectment Suit No. 1471 of 2001. 2. ADMITTEDLY the petitioner instituted the suit for eviction, under the West Bengal Premises Tenancy Act, 1997, on 17th August 2001. Objection was taken by the defendant/opposite party as to the jurisdiction of the Court to entertain a proceeding under the West Bengal Premises Tenancy Act, 1997. The Trial Court found that the Court had no jurisdiction to entertain the suit as the power to adjudicate dispute under sections 6 and 7 of the West Bengal Premises Tenancy Act, 1997, is conferred upon the Rent Controller. It is further held that in view of section 6 sub section (5) of the said Act, the suit could not be instituted within two years from the date of coming into force of the said Act and directed the plaint to be returned to the plaintiff/petitioner. Assailing the said order an appeal was filed before the City Civil Court at Calcutta. The Appellate Court also, held that the Court has no jurisdiction to entertain a suit of such nature and dismissed the said appeal. 3. THE order of the Appellate Court is impugned in this revisional application by the plaintiff/petitioner. 4. DURING pendency of the instant revisional application, section 12A was introduced by the West Bengal Premises Tenancy (Amendment) Act, 2009 which reads as under : "12A. Special provisions regarding jurisdiction of Courts for trial of suits for possession - (1) Notwithstanding anything contained in any other law, a suit or proceeding by a landlord against a tenant in which recovery of possession of any premises to which this Act applies is claimed shall He to the Courts, as set out in the Schedule IV and no other Court shall be competent to entertain or try such suit or proceeding. (2) The provisions of the Code of Civil Procedure, 1908 (5 of 1908),shall, mutatis mutandis, apply to all suits and proceedings referred to in sub-section (1) except suits or proceedings which lie to the High Court at Calcutta. (2) The provisions of the Code of Civil Procedure, 1908 (5 of 1908),shall, mutatis mutandis, apply to all suits and proceedings referred to in sub-section (1) except suits or proceedings which lie to the High Court at Calcutta. Schedule IV which was added by the said Amendment Act of 2009 postulates that the suit valued upto rupees sixty thousand shall be tried by the Court of Small Causes as the Court of first instance. It would be profitable to quote the said schedule which reads as under : "Where the premises are situated on land wholly within the ordinary original civil jurisdiction of the High Court at Calcutta, - (a) in case the value of the suit exceeds ten lakh rupees, to the High Court at Calcutta; (b) in case the value of the suit does not exceed ten lakh rupees but exceeds sixty thousand rupees, the City Civil Court established under section 3 of the City Civil Courts Act, 1953 (West Ben. Act 21 of 1953); (c) in any other suit, to the Chief Judge of the Court of Small Causes constituted under the Presidency Small Causes Courts Act, 1882 (15 of 1882), in the town of Kolkata, who may try the suit himself or may transfer the suit for trial to any other Judge of the said Court who shall try the suit as a Court of first instance." 5. THE legislature, by inserting the validation clause, saved all the actions taken in a proceeding initiated after 10th of July 2001. Section 4 of the said West Bengal Premises Tenancy (Amendment) Act, 2009 reads thus: "4. Validation. - THE amendments made in the principal Act by section 2 and section 3 shall be deemed to have been made with effect from the 10th day of July, 2001 and accordingly anything done or any action taken after the said date and before the commencement of this Act, shall, notwithstanding anything contrary contained in any judgment, decree or order of any Court, Tribunal or other authority, be deemed to be, and to have always been, for all purposes, as validly and effectively taken or done as if the said amendments had been in force at all material time." 6. THUS, by reading the provisions, which have been inserted by virtue of the said Amendment Act of 2009, there is no impediment in holding that the Court of Small Causes, constituted under the Presidency Small Causes Courts Act, 1882, is competent to try and decide suits under sections 6 and 7 of the West Bengal Premises Tenancy Act, 1997. Furthermore, the moratorium period enshrined under section 6 sub section (5) of the West Bengal Premises Tenancy Act, 1997 is also over. Thus, this Court finds that the said suit is saved by the validation clause inserted in the West Bengal Premises Tenancy (Amendment) Act, 2009 and can be tried by the Small Causes Court, Calcutta as a Court of first instance. 7. IN view of the above, the order impugned herein is set aside. The Trial Court is directed to proceed with the hearing of the said suit from the stage of passing the impugned order and shall make all endeavours to dispose of the same as expeditiously as possible. 8. THE revisional application is disposed of. However, there will be no order as to costs. Urgent photostat certified copy be supplied to the parties, if applied for, on priority basis.