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2013 DIGILAW 653 (CAL)

Robin Roy Chowdhury v. Anil Mukherjee

2013-09-09

ASIM KUMAR MONDAL

body2013
JUDGMENT Asim Kumar Mondal, J. This is an application under Article 227 of the Constitution of India. The petitioner is defendant in a suit being No. Title Suit – 87 of 2008 which is pending before the learned Civil Judge (Junior Division), 3rd Court, Burdwan. The opposite party is the plaintiff. A suit has been instituted at the instance of opposite party for recovery of khas possession upon evicting the defendant petitioner. The petitioner after having entered appearance and filed application under Section 7(i) of the West Bengal Premises Tenancy Act, 1997 along with a petition under Section 7(ii) of West Bengal Premises Tenancy Act and for permission to deposit monthly current rent as well as for determination of the relationship of the landlord and tenant between the parties. The petitioner in her written statement has denied the right, title and interest of the plaintiff in the suit property as landlord. It is the positive case of the petitioner that he is the tenant under one Amarnath Mukherjee and plaintiff who claimed to have purchased the said property could not establish his ownership in respect of the said property. The petitioner filed one application under Article 227 of the Constitution of India challenging the order No. 25 dated 20th January, 2011 passed by learned Trial Court disposing of the petition filed by the petitioner under Section 7(i) and 7(ii) of the West Bengal Premises Tenancy Act. In the said revisional application being C.O. No. 644 of 2011 this Court directed the learned Trial Court to rehear the matter on submissions of petition afresh by the petitioner and pass necessary order in view of the observations made in the body of the judgement. Accordingly the petitioner filed a petition before learned Court below for rectification in respect of calculation of the arrear rent. Upon hearing the said application learned Trial Judge by order dated 25.07.2012 passed an order directing the defendant / present petitioner to pay a sum of Rs. 35,387.50 as to the rent of Rs. 28,500.00 for fifty seven months and interest thereto amounting to Rs. 6,887.50. The petitioner alleged that in view of the order of the Hon’ble Court petitioner deposited a sum of Rs. 10,663/- on 11th August, 2011 and thereafter he is going on paying rent month by month. The learned Court below has not calculated the arrear rent by deducting the said amount of Rs. 6,887.50. The petitioner alleged that in view of the order of the Hon’ble Court petitioner deposited a sum of Rs. 10,663/- on 11th August, 2011 and thereafter he is going on paying rent month by month. The learned Court below has not calculated the arrear rent by deducting the said amount of Rs. 10,663/- which was paid at a time and furthermore the learned Court below has not considered that the plaintiff became the owner of the property from the date of execution of the deed which has been executed and registered on 28th May, 2007 and prior to the entitlement of the title the plaintiff cannot claim the arrear rent. Being aggrieved by and dissatisfied with the order impugned dated 25.07.2012 the defendant / petitioner has preferred the present revisional application on the grounds that learned Court below failed to appreciate that a question disputing the relationship of landlord and tenant was raised in the petitions under the provision of Section 7(ii) of the West Bengal Premises Tenancy Act and same has not been considered and as such the order impugned is illegal and suffers from material irregularity. Mr. Rwitendra Banerjee with Mr. Sougata Mitra appears on behalf of the petitioner / defendant. Mr. Banerjee submits that the learned Trial Court has not considered the submissions as well as contention of the petition under Section 152 read with Section 151 of the Civil Procedure Code moved before him. There is nothing transferred in the order impugned as to the consideration of directions / observations of Hon’ble Court passed in C.O. No. 644 of 2011. It is contended that the term “landlord” would include such person who had been the landlord of the premises at earlier point of time. If such landlord accept rent in default which is due to him the legal effect of such acceptance will not merely be extinction of the liability of tenant for the arrear rent in default, it will operate as a waiver of such defaults under provisions of Section 24 of the Act. The incident of tenancy always remains with the landlord of the premises at any point of time in respect of rent due to him. The incident of tenancy always remains with the landlord of the premises at any point of time in respect of rent due to him. By transfer of the premises by such landlord to the present landlord, there will not be with it an assignment of rent or a transfer of benefit of default or of the cause of action arising from default, as even after transfer of the premises. The transferor landlord will be entitled to the rent in default due to him under Section 109 of the Transfer of Property Act and acceptance thereof will also operate as waiver of such default under Section 24 of the West Bengal Premises Tenancy Act. It is contended by Mr. Banerjee that the present landlord is not entitled to claim any arrear rent for the period when he did not acquire right, title and interest. Mr. Banerjee relied upon a decision of this Court reported in 75 CWN at page 478. Mr. Tamnoy Chowdhury appears on behalf of the opposite party to support the landlord that the tenancy remains same and is continuing since the period of previous landlord and as such the arrear rent prior to transfer should be payable to the present landlord. On careful perusal of the order impugned it appears that learned Trial Court in the impugned order being No. 37 dated 25.07.2012 recorded the case of both the parties and reproduced order passed by the said Court vide order No. 25 dated 20th January, 2011 and observed that the defendant is a monthly tenant in the suit premises at the rent of Rs. 5,000/- per month and defendant is a defaulter since May, 2006 and as such according to the petitioner the principal amount of the aforesaid arrear rent come to the tune of Rs. 28,500/- for fifty seven months and interest comes to the tune of Rs. 6,887.50 as per provision of West Bengal Premises Tenancy Act and total amount due is Rs. 35,387.50. The learned Trial Court also recorded that in written objection it has been alleged that plaintiff is only entitled to get Rs. 22,000/- with interest since June, 2007 and out of which the defendant has already paid Rs. 10,662/-through challan. 6,887.50 as per provision of West Bengal Premises Tenancy Act and total amount due is Rs. 35,387.50. The learned Trial Court also recorded that in written objection it has been alleged that plaintiff is only entitled to get Rs. 22,000/- with interest since June, 2007 and out of which the defendant has already paid Rs. 10,662/-through challan. It is also recorded that against the order No. 25 dated 20th June, 2011 a Civil Revision was preferred and the said revision was disposed of by the High Court with an observation that the learned Trial Court made a wrong calculation of rent and if any application is filed for such rectification, Court shall decide such application on merit. Learned Trial Court concluded in the impugned order being No. 37 dated 25.07.2012 that in the facts and circumstances as above and after the careful perusal of the entire materials on record he inclined to allow the petition and as such the petition under Section 152 read with Section 151 of the Code of Civil Procedure was allowed on contest. The defendant was directed to pay an amount of Rs. 35,387.50 in total (rent of Rs. 28,500/- and interest Rs. 6,887.50) to the plaintiff. The learned Trial Court by passing order No. 37 dated 25.07.2012 modified the order dated 20.01.2011 in view of the observations of this Court in a judgment passed in civil revision under Article 227 of the Constitution of India being No. C.O. 644 of 21011. The said order impugned being No. 37 dated 25.07.2012 appears very cryptive in nature and has not expressed any views / reasons whatsoever to come to the conclusion. There is nothing noted in the said impugned order as to the submissions and reliance of laws placed by learned Advocates for the parties during hearing of the petition. This Court fails to understand how the learned Trial Court calculate the arrear dues as there is no expressed reason assigned in the order impugned. There is nothing recorded in the order impugned to ascertain as to whether learned Trial Court considered the submissions placed by the learned advocates of the parties or learned Trial Court examined the documents placed on behalf of the parties. As such there is scope to direct the learned Trial Court to consider the submissions of petitioner / defendant afresh as per procedure and lawand pass a reasoned order accordingly. As such there is scope to direct the learned Trial Court to consider the submissions of petitioner / defendant afresh as per procedure and lawand pass a reasoned order accordingly. Under the circumstances the revisional application is disposed of with the following directions ; The matter is remitted to learned Civil Judge, (Junior Division), 3rd Court at Burdwan with the reference to Title Suit No. 87 of 2008 pending before her Court for consideration in the event of filing a fresh application relating to calculation of arrear rent. The petitioner / defendant is at liberty to file application afresh if so advised within a period of two months from the date of this order before learned Trial Court and learned Trial Court will dispose of the same within one month thereafter after giving opportunity to the plaintiff / opposite party to file objection, if any.