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2016 DIGILAW 942 (CAL)

Rubi Ghosh v. Saraswati Gupta

2016-11-29

HARISH TANDON

body2016
JUDGMENT : 1. This revisional application was entertained on 29th September, 2016 on a question of law whether the Civil Court has jurisdiction to entertain a suit for eviction filed by the thika tenant against his bharatia in view of Section 8 (3) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001. 2. An inspiration was drawn from the suit number, being Title Suit No. 2 of 2006, that the same was instituted after coming in force of the said Act and the repealed Act does not contain any provision like Section 8 (3) of the present Act partly taking away the jurisdiction of the Civil Court to entertain such issues. 3. The attention of this Court is drawn to the fact that the suit was instituted on 11th October, 2001 and was registered as Title Suit No. 336 of 2001 in the 2nd Court of learned Civil Judge (Junior Division), Alipore. The suit was subsequently transferred to the 3rd Court of Additional Civil Judge (Junior Division), Alipore and was renumbered as Title Suit No. 2 of 2006. 4. The learned advocate for the petitioners is still banking upon the provisions contained under Section 8 (3) of the Act of 2001 to contend that the case of eviction of a bharatia is entertainable by the Thika Controller in such a manner as may be prescribed by the competent authority. 5. Before proceeding with the points so urged, it is profitable to quote Section 8 in the Act of 2001, which runs thus :- “8 (1) – The monthly and other periodical tenancies of the Bharatias in respect of the structures occupied by them on payment of rents to the thika tenants shall, with effect from the date of coming into force to this Act, be governed by the provisions of [the West Bengal Premises Tenancy Act, 1997 (West Ben. Act XXXVII of 1997)], in matters relating to the payment of rent by the Bharatias and their eviction by the thika tenants, the owners of the structures shall be deemed to be landlords and the Bharatias shall be deemed to be tenants under the said Act. Act XXXVII of 1997)], in matters relating to the payment of rent by the Bharatias and their eviction by the thika tenants, the owners of the structures shall be deemed to be landlords and the Bharatias shall be deemed to be tenants under the said Act. (2) – If any question arises as to whether a person is a Bharatia under a particular thika tenant, the Controller, either on his own motion or upon receiving any information, may, after giving the persons interested an opportunity of being heard and after examining all such documents and particulars as may be considered necessary, enquire upon and decide such question. (3) – Any dispute regarding payment of rent by the thika tenant to the State Government or by a Bharatia to a thika tenant, or any case of eviction of Bharatia, shall be disposed of by the Controller in such manner as may be prescribed. (4) – A thika tenant may, in default of payment of rent to the State Government, be evicted or otherwise penalised by the Controller in such manner as may be prescribed. (5) – An order passed by the Controller under the provisions of this Act shall be executable by the Controller as a decree of a Civil Court and for this purpose, the Controller shall have all the powers of a Civil Court. (6) – Notwithstanding anything contained in this Act or in the West Bengal Premises Tenancy Act, 1997 a Bharatia under a thika tenant shall be entitled to take separate electrical connection from the electricity supplying agency and separate water supply connection from the appropriate agency for his own use. (7) – A Bharatia shall be liable to pay rent to the thika tenant at such rate as may be prescribed. (8) – Where there is no thika tenant or the thika tenant is not traceable for any reason whatsoever, a Bharatia shall be liable to deposit rent with the Controller in respect of the area of the structure as is occupied by him at such rate, and in such manner, as may be prescribed. (8) – Where there is no thika tenant or the thika tenant is not traceable for any reason whatsoever, a Bharatia shall be liable to deposit rent with the Controller in respect of the area of the structure as is occupied by him at such rate, and in such manner, as may be prescribed. (9) – Notwithstanding anything contrary contained in the Act, the State Government shall not be deemed to be a landlord as defined in clause (c) of section 2 of the West Bengal Premises Tenancy Act, 1997, but be a licensor and the Bharatia shall be a licensee under the State, where there is no thika tenant.” 6. It is apparent from the bare reading of the provision as set out hereinbefore that the relationship between the thika tenant and bharatia is governed by the provisions contained under the West Bengal Premises Tenancy Act, 1997 so far as the matter relates to the payment of rent by the bharatias and their eviction by thika tenants. 7. Sub-section 3 categorically provides that any dispute pertaining to the payment of rent by the thika tenant to the State Government or by a bharatia to a thika tenant or any case of eviction of bharatia shall be disposed of by the thika Controller. 8. This Court do not venture to delve upon the nuances of law pertaining to the interpretation of such provision, vis-à-vis the provisions contained under the West Bengal Premises Tenancy Act, 1997 because of the special fact involved in the instant proceeding. 9. As indicated above the suit was instituted on 11th October, 2001 and the Act of 2001 was notified in the Calcutta Gazette Extraordinary on 22nd November, 2002 and in view of Sub-section 3 of Section 1 it has come into force from the said date. 10. Section 21 of the Act of 2001 excludes the jurisdiction of the Civil Court in relation to any matter, which is required to be decided or dealt with by the Controller or the Appellate or other Authorities specified in various provisions of the said Act. 11. Section 27 contains repeal and savings provisions, wherefrom it would evident that the proceeding, which was pending at the time of coming in force of the said Act, remained unaffected and to be decided as if the said Act has not come into force. 11. Section 27 contains repeal and savings provisions, wherefrom it would evident that the proceeding, which was pending at the time of coming in force of the said Act, remained unaffected and to be decided as if the said Act has not come into force. There is no provision like Section 8(3) of the Act of 2001 incorporated in the Act of 1981, which was repealed because of the said Act. 12. In view of the repeal and savings clause, the proceeding instituted prior in time is unaffected and cannot be controlled, guided and regulated by a provision of the new enactment. 13. Apart from the same, this Court further finds that several fruitless attempts were made in course of the same proceeding to have the suit nipped in the bud or to be plucked from the docket of the Court with an avowed object to thwart the proceeding for eviction instituted against the petitioner. An application by way of demurrer under Order VII Rule 11 (d) of the Code of Civil Procedure was rejected on contest and such order was affirmed by this Court in revisional jurisdiction. 14. An application raising jurisdictional issue under inherent power of the Court was also rejected by the Trial Court and such order was again affirmed by this Court. 15. The learned advocate for the petitioners contends that the observations recorded therein would manifestly reflect the mind of the Judge that such plea can only be decided after the evidence of the parties and the moment the plaintiff/opposite party tenders the deed of lease to be received in evidence and marked as exhibit, an application is maintainable in view of such observations. 16. I am unable to accept such stand upon meaningful reading of the observations recorded by the Trial Court as well as this Court. It was categorically observed therein that the plea of jurisdiction is not a pure question of law and is required to be decided after recording evidence of both the parties and the issues framed in the said suit. 17. The inspiration appears to have been drawn immediately upon jumping to the conclusion that once the plaintiff’s witness is examined and the document of title is produced to the Court, the application raising plea as to the jurisdiction of the Court is required to be activated immediately. 18. 17. The inspiration appears to have been drawn immediately upon jumping to the conclusion that once the plaintiff’s witness is examined and the document of title is produced to the Court, the application raising plea as to the jurisdiction of the Court is required to be activated immediately. 18. Order XIV Rule 2 of the Code of Civil Procedure clearly provides that the Court is required to answer all the issues except when one of the issues relating to the jurisdiction if decided against the plaintiff, it would be a mere formality to embark the journey in deciding the other issues. 19. The depositions of all the witnesses produced or to be produced on behalf of the parties are not complete and, therefore, it would be premature at this stage to entertain such application in sheer wastage of valuable time of the Court in deciding such issue. The Trial Court is in seisin of the matter, where all the issues are at large and shall be decided upon taking into consideration the pleadings, evidence and the documents produced by the respective parties. 20. Though this Court may not wholeheartedly support the observations recorded by the Trial Court, yet the ultimate decision cannot be faulted with in view of my findings recorded hereinabove. 21. This revisional application is thus dismissed. 22. There will be no order as to costs.