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2012 DIGILAW 332 (CAL)

Bisweswar Ghosh v. Rajat Kumar Sinha

2012-04-19

JOYMALYA BAGCHI

body2012
Judgment :- Joymalya Bagchi, J. This application under Article 227 of the Constitution of India has been filed against the order dated 30th June, 2004 passed by the learned Additional District Judge, 2nd Court, Paschim Medinipur in Civil Revision Case No. 68 of 2001 modifying the order No. 115 dated 14th December, 2000 passed by the learned Civil Judge, Junior Division, 2nd Court, Midnapore in O.S. No. 151 of 1994. The petitioners being the landlords of the premises filed the suit against the opposite party herein being O.S. No. 151 of 1994 before the Court of the learned Civil Judge, Junior Division, 2nd Court, Midnapore, inter alia, praying for a decree of eviction. The opposite party has filed the written statement in the said suit denying all the allegations. The opposite party filed three applications under Sections 17(1), 17(2) and 17 (2A) of the West Bengal Premises Tenancy Act, 1956 for determination of rate of rent, deposit of arrear rent in Court and also payment of such rent by way of instalments. The petitioners filed an objection to the said applications. The parties led oral evidence in support of their versions. The trial Court by order dated 14th December, 2000 held the opposite party be a monthly tenant under the petitioners in the suit premises at a rental of Rs. 250/-(Rupees Two Hundred and Fifty) per month and further held that the opposite party had not paid rent from July 1984 to December 1993 and further directed the opposite party to pay the arrear rent at a rent of Rs. 250/-(Rupees Two Hundred and Fifty) per month from July, 1984 to December, 1993 with interest @ 8.33 per cent per annum in 30 consecutive easy instalment and the fraction, if any, payable as 31st instalment, first of which is to be paid by 2nd January, 2001. The said order was challenged by the opposite party by filing a revisional application under Section 115A of the Civil Procedure Code being Civil Revision No. 68 of 2001 before the learned Additional District Judge, 2nd Court, Paschim Medinipur, Mednipore. Upon hearing the parties, the learned Additional District Judge, 2ndCourt, Paschim Medinipur, by impugned order dated 30th June, 2002, modified the order dated 14th December, 2000 passed by the trial Court and held that the opposite party was not a defaulter for the period from July, 1984 to December, 1993. Mr. Upon hearing the parties, the learned Additional District Judge, 2ndCourt, Paschim Medinipur, by impugned order dated 30th June, 2002, modified the order dated 14th December, 2000 passed by the trial Court and held that the opposite party was not a defaulter for the period from July, 1984 to December, 1993. Mr. Shyamal Sur, learned lawyer appearing for the petitioners submitted that although the revisional application was filed under Section 115A of the Civil Procedure Code in 2001, the said matter came up for hearing in 2004 when the power of revision of the Court under Section 115 of the Civil Procedure Code was restricted by the Code of Civil Procedure Amendment Act, 2002 (hereinafter referred to as the Amending Act). In view of such amendment, the revisional Court had no jurisdiction to interfere with an order unless such order, if passed in favour of the revisionist, would have finally disposed of a suit or other proceeding. In support of his contention he relied upon a case reported in AIR 2002, Karnataka 407 (K.R. Subbaraju V. M/s. Vasavi Trading Co. & Ors.). He further submitted that an order dismissing of an application under Section 17 of the West Bengal Tenancy Act, 1956 does not finally dispose of any suit or other proceeding and, therefore, was not amenable to Section 115 of the Civil Procedure Code, as amended by the Amending Act. Mrs. Usha Maiti, appearing for the opposite party submitted that this issue had not been canvassed before the learned court below at the time of disposal of the revisional application and hence the petitioner was precluded from raising the same for the first time before this Court. In support of her contention she relied upon a decision in the case of Santosh Hazari V. Purushottam Tiwari(Deceased) by Lrs. Reported in 2001 (3) SCC 179 . She further submitted that in the event this Court held that the revisional court did not have jurisdiction to pass the impugned order, her client should not be rendered remediless and she ought to be permitted to assail the order of the trial Court under Article 227 of the Constitution of India before this Hon’ble Court. I have heard the submissions of the parties and perused the materials on record. I have heard the submissions of the parties and perused the materials on record. The issue which falls for decision is whether the revisional Court had jurisdiction to pass the impugned order in the light of the amendment to Section 115 of the Civil Procedure Code by the Amending Act. The Amending Act restricted the power of revision of High Court by adding the following proviso : “Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.” Such amendment came into effect on 02.07.2002 and restricted the revisional jurisdiction of the Court only to those orders, which if passed in favour of the revisionist, would finally dispose of a suit or other proceeding. The question whether such amendment will apply to revisional proceeding which were pending before the Court on the date on which the amendment came into force fell for decision before the Supreme Court in the case of Shiv Shakti Coop. Housing Society, Nagpur V. Swaraj Developers and others reported in 2003 (6) SCC 659 wherein the Apex Court held that the power of revision, unlike the right to appeal, is not a vested right in a litigant and the same can be altered retrospectively and would apply to pending proceeding. In paragraph 32 of the said decision the Apex Court held as follows : “…………….The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered, the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation.” In view of such ratio of the Apex Court the issue is no longer res integra and it is clear that the amended law would apply to pending revisional proceedings. In the instant case the revisional application was pending before the Additional District Judge when the said amendment came into force. In the instant case the revisional application was pending before the Additional District Judge when the said amendment came into force. Since the District Court under Section 115A of the Civil Procedure Code exercises the same revisional power as the High Court, the restriction upon such power by the Amending Act would affect the revisional proceeding before the District Court also, including the present one. The next question which therefore arises is, whether in view of the turncated revisional powers, the District Court could have interfered with the order of the trial Court disposing of an application under the provisions of Section 17 of the West Bengal Premises Tenancy Act. Or in the other words, whether a proceeding under the provision of Section 17 of the West Bengal Premises Tenancy Act can come within the ambit of “other proceeding” so as to bring the impugned order disposing such application within the proviso to section 115 of Civil Procedure Code as amended by the Amending Act. The word “other proceeding” in the said proviso to section 115 of the Civil Procedure Code fell for decision in the case of Mrityunjay Sen V. Shrimati Sikha Sen reported in 2003 (1) CLJ 263 wherein this Hon’ble Court held as follows : “Now, I proposed to consider the meaning of the expression ‘other proceeding’ referred to in the proviso to sub-section (1) of Section 115 of the Code. My reading of the statute is it was never the intention of the makers of the law that by inclusion of the expression ‘other proceeding’ they intended to vest the High Court with the power of revision even in respect of order that may be passed in interlocutory or supplemental proceeding to a suit. In my view, the expression in the course of a suit is sufficient to vest the High Court with the power of revision against the interlocutory orders passed by the Court subordinate to it provided, however, the requirements of the proviso are satisfied. My eading is that by insertion of the expression other proceeding the legislature intended to vest the High Court with the power of revision in respect of orders passed in the civil proceedings, which are registered other than suits. The expression ‘other’ indicates different and distinct proceedings from those, which are registered as suits. My eading is that by insertion of the expression other proceeding the legislature intended to vest the High Court with the power of revision in respect of orders passed in the civil proceedings, which are registered other than suits. The expression ‘other’ indicates different and distinct proceedings from those, which are registered as suits. A Full Bench of this Court in the case of Deb Narain Dutt v. Narendra Krishna and Another reported in ILR 16 Calcutta 267 held that “The word “proceeding” is a very general one, it is not limited to proceedings connected with civil suits; but includes, I suppose, proceedings other than civil proceedings, and civil proceedings other than suits.” It brooks no controversy that an application under the provisions of Section 17 of the West Bengal Premises Tenancy Act cannot be said a proceeding which is independent and distinct in its existence from the suit itself. In fact, such an application would have no existence independent of the suit. Judged from this angle in the light of the law declared in Mrityunjay Sen (Supra), an order disposing of an application under Section 17 of the West Bengal Premises Tenancy Act cannot be said to be one which finally disposes of any suit or other proceeding as envisaged in the first proviso to Section 115 of the Civil Procedure Code. Hence, I have no hesitation to hold that the Additional District Judge had no jurisdiction to pass the impugned order in exercise of its revisional power under Section 115A of the Civil Procedure Code after enforcement of the Amending Act and such order is wholly without jurisdiction and is liable to be set aside. The contention of Mrs. Maiti that the issue is raised for the first time before this Court is wholly without any merit. This is a case of inherent lack of jurisdiction of the Court to exercise its revisional power and the same goes to the very root of the matter. Mere acquiescence on failure on the part of a party to raise such issue cannot clothe the Court with the requisite jurisdiction which it does not otherwise have. The judgments cited by Mrs. Maiti reported in 2001 (3) SCC 179 (Santosh Hazari V. Purushottam Tiwari (Deceased) by Lrs. does not at all support her contention. I am, however, in agreement with the submission of Mrs. The judgments cited by Mrs. Maiti reported in 2001 (3) SCC 179 (Santosh Hazari V. Purushottam Tiwari (Deceased) by Lrs. does not at all support her contention. I am, however, in agreement with the submission of Mrs. Maiti that her client cannot be rendered remediless in view of the fact that the revisional Court did not have jurisdiction to pass the impugned order. In order to avoid prolixity, I have suo motu exercised my power under Article 227 of the Constitution to examine the order passed by the learned trial Court which was the subject matter of challenge before the revisional Court. On a perusal of the materials on record, I find that the learned trial Court had by a well reasoned order arrived at a conclusion that there was the tenant was a defaulter since he could not adduce any evidence by producing rent receipts or otherwise upon payment of rent. The stance of the tenant that due to good relation with the landlord rent receipts were not issued was rightly disbelieved by the trial Court as no circumstance probabilising such situation is proved in the facts of this case. The revisional Court had upset such well reasoned finding of the trial Court on a perverse reasoning that the onus was on the landlord to show that rent receipts were issued to the tenant upon payment of rent. The onus is on the tenant to produce the rent receipts to prove that rent had been paid and the revisional Court illegally upset the finding of the trial Court by holding that such onus had shifted onto the landlord. I, therefore, allow this application by setting aside the impugned order dated 30th June, 2004 passed by the learned Additional District Judge, 2nd Court, Paschim Medinipur. The order dated 14th December, 2000 passed by the learned Civil Judge, Junior Division, 2nd Court, Midnapore in O.S. No. 151 of 1994 stands revived with the modification that the opposite party shall deposit the first of the instalment of arrear rent by 7th of May, 2012 and shall go on making deposit of the subsequent instalments in the manner as provided in the said order of the trial Court. There shall be no order as to costs. Urgent certified photostat copy of this order be given to the parties, if applied for, subject to compliance with all necessary formalities.