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2017 DIGILAW 966 (CAL)

Jiten Joyder v. Urmila Jaiswal

2017-12-11

SANJIB BANERJEE

body2017
JUDGMENT : The grievance of the petitioning defendant in an eviction suit is that his defence has been struck out merely on the ground that he did not apply under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 prior to the plaintiff invoking Section 7(3) thereof. 2. The key to the issue is in the choice of the relevant expressions by the legislature. Sections 7(1) and 7(2) do not refer to a plaintiff or a defendant but refer to a landlord and a tenant. The obligation to do whatever is required to be done under such provision is of a tenant. If a defendant in an eviction suit is not a tenant, the obligation may not fasten to such defendant. Likewise, if the plaintiff is not the landlord, the provisions may not be applicable in the strictest sense. 3. Section 7(1)(a) of the Act obliges a tenant, subject to the provision of sub-section (2), to pay to the landlord or deposit with the court (Civil Judge) “all arrears of rent, calculated at the rate at which it was last paid and upto the end of the month previous to that in which the payment is made together with interest at the rate of ten per cent per annum.” Clause (b) of Section 7(1) of the Act requires such payment or deposit to be made within one month of the service of the summons “on the tenant” or within one month of his appearance. Clause (c) obliges the “tenant” to thereafter continue to pay to the “landlord” or deposit with the court month by month by the 15th of each succeeding month, a sum equivalent to the rent at that rate. The rate, as is obvious, is relatable to clause (a). 4. In its opening limb, Section 7(2) of the Act mandates that “If in any suit referred to in sub-section (1), there is any dispute as to the amount of the rent payable by the tenant, the tenant shall, within the time specified in that sub-section, deposit with the Civil Judge the amount admitted by him to be due from him together with an application for determination of the rent payable”. Again, the word “tenant” has been used in preference to “defendant”; and, the application that a tenant is obliged to file is if there is “any dispute as to the amount of rent payable”. 5. Again, the word “tenant” has been used in preference to “defendant”; and, the application that a tenant is obliged to file is if there is “any dispute as to the amount of rent payable”. 5. There may be a dispute between the landlord-plaintiff and the defendant-tenant as to the rate of rent or as to the quantum of unpaid rent. There may also be a dispute as to whether the plaintiff is the landlord qua the suit premises or the defendant is the tenant in respect of such premises or even whether the defendant is a tenant under the plaintiff. 6. If the plaintiff is the landlord of the suit premises and the defendant is the tenant in respect thereof, any dispute that the tenant may perceive as to the rate of rent or quantum of rent due to the landlord has to be made the subject-matter of an application under Section 7(2) of the Act and an adjudication in such regard invited. It is also possible that the plaintiff is not the landlord, or the defendant does not accept that the plaintiff is the landlord of the suit premises; or the defendant is not a tenant in respect of the suit premises. In such a situation the defendant may apply under Section 7(2) of the Act inviting an adjudication on the status of the parties qua the suit premises or, in other words, on the legal relationship between the parties. However, a defendant in an eviction suit filed under the said Act who does not perceive himself to be a tenant is not obliged under Section 7(2) of the Act to carry an application to the court in seisin of the suit for an adjudication on the status of the parties to the suit or the legal relationship between the plaintiff and the defendant. Merely because a person files a suit for eviction citing some of the grounds available under Section 6 of the Act, it does not imply that the plaintiff has to be presumed to be the landlord in respect of the suit premises or that the defendant is undeniably the tenant under the plaintiff. 7. On the face of it, Section 7(2) of the Act does not speak of an adjudication on the status of the parties to the eviction suit or an ascertainment of the legal relationship between the plaintiff and the defendant. 7. On the face of it, Section 7(2) of the Act does not speak of an adjudication on the status of the parties to the eviction suit or an ascertainment of the legal relationship between the plaintiff and the defendant. However, the expression “any dispute as to the amount of rent payable by the tenant” will accommodate within its fold a dispute as to whether rent is payable at all by the defendant; and, if so, whether such rent is payable to the plaintiff. If the defendant in an eviction suit pertaining to a tenancy covered by the said Act contends that the plaintiff is not the landlord in respect of the suit premises or the defendant is not a tenant thereat or under the plaintiff, the resultant dispute that is raised is whether rent is payable at all by the defendant to the plaintiff. Such a dispute falls within the expression “any dispute as to the amount of rent payable by the tenant" in Section 7(2) of the Act. 8. The view that such a dispute is covered by the relevant expression is supported by a single bench judgment reported at AIR 1972 Cal 443 (Baidyanath Kundu v. Jyotsna Rani Karmakar) which, in turn, relies on another single bench decision reported at 65 CWN 149 (Biswanath Roy v. Annapurna Roy). Those were judgments rendered on the similar expression “any dispute as to the amount of rent” in Section 17(2) of the West Bengal Premises Tenancy Act, 1956, the statute which was replaced by the 1997 Act in the State. Such view has been echoed in subsequent decisions under the 1956 Act and even under the 1997 Act. 9. In the present case, the petitioner claims that it is the petitioner’s mother who is the tenant under the plaintiff-landlord and the mother had even applied under Order I Rule 10 of the Code to be added as a party to the suit, but the application was dismissed at the resistance of the plaintiff. The petitioner does not accept that he is the tenant or, at any rate, that he is the tenant under the plaintiff-landlord in respect of the suit premises. 10. In such a scenario, the petitioner should, ideally, have applied under Section 7(2) of the Act and questioned his impleadment as the tenant at the suit premises, which would have called for an appropriate adjudication in such regard. 10. In such a scenario, the petitioner should, ideally, have applied under Section 7(2) of the Act and questioned his impleadment as the tenant at the suit premises, which would have called for an appropriate adjudication in such regard. But it is possible to excuse the failure of a defendant in an eviction suit to not invoke Section 7(2) of the Act or apply thereunder on the ground that the defendant in the suit is not obliged to invoke such provision but only a tenant is. If the legislature chose to use the word “tenant” instead of “defendant”, a defendant who does not accept that he is the tenant should not suffer therefor. 11. Section 7(3) of the Act provides as follows: “If the tenant fails to deposit or pay any amount referred to in subsection (1) or sub-section (2) within the time specified therein or within such extended time as may be granted, the Civil Judge shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit.” 12. Though Section 7(3) of the Act also refers to a tenant in its initial part, the operative part of the provision is the consequence of the noncompliance. Such consequence is that the court “shall order the defence against delivery of possession to be struck out”. The consequence affects a defendant who is admittedly a tenant or a defendant who has been adjudged as such. Even though such consequence, strictly speaking, may not befall a defendant who contends that he is not a tenant qua the suit premises or under the plaintiff and the legal relationship has not been ascertained, the defendant may choose to urge the challenge to the legal relationship at this stage and it is imperative that he must be afforded a chance to do so. A defendant has a right to be served a notice on an application under Section 7(3) of the Act and also a right to be heard thereon, particularly if an adjudication on the legal relationship between the parties has not preceded the application under Section 7(3) of the Act. 13. A defendant has a right to be served a notice on an application under Section 7(3) of the Act and also a right to be heard thereon, particularly if an adjudication on the legal relationship between the parties has not preceded the application under Section 7(3) of the Act. 13. Thus, it was open to this petitioner to contend at the stage of Section 7(3) of the Act that he was not a tenant in respect of the suit premises and, as such, he was under no obligation to pay any rent to the plaintiff. 14. It must not be lost sight of that the consequence of non-deposit or non-payment in terms of Section 7(1) or Section 7(2) of the Act is the striking out of the defence against delivery of possession and not the striking out of the defence altogether. The mandate in Section 7(3) of the Act is that even after the defence against delivery of possession is struck out, the court “shall proceed with the hearing of the suit”. If the provision implied that the consequence of a default in payment or deposit under Section 7(1) or Section 7(2) of the Act would result in the suit being decreed, the statute would have so provided. Therefore, there is even a third chance that a defendant in an eviction suit who questions the legal relationship between the parties has, to assert his objection: at the hearing of the suit. If a defendant in an eviction suit pertaining to a tenancy governed by the Act of 1997 chooses not to stay back and contest the suit after the defence against delivery of possession has been struck out, the court may invoke the principle embodied in Order VIII Rule 5 of the Code and decree the suit without calling for any formal proof. If, however, such a defendant stays back to contest the suit on the ground that the plaintiff is not the landlord of the suit premises or that the defendant is not a tenant under the plaintiff or in respect of the suit premises, such issue will fall for consideration. But that is the last chance of the defendant to question the legal relationship between the parties, even if he has not chosen to urge the ground by way of an application under Section 7(2) of the Act or press it at the Section 7(3) stage. But that is the last chance of the defendant to question the legal relationship between the parties, even if he has not chosen to urge the ground by way of an application under Section 7(2) of the Act or press it at the Section 7(3) stage. Such a defendant cannot allow a decree to be passed and then question the same in proceedings under Section 47 of the Code or under Order XXI Rule 99 or 101 thereof. 15. If the legal relationship between the parties is questioned by a defendant in such a suit at the Section 7(3) stage, the court may answer the issue conclusively at such stage itself if it does not call for oral evidence; or the court may defer the consideration till the trial in the suit if the issue involves protracted evidence. If the court chooses to answer the issue conclusively in favour of the plaintiff at such stage, it would imply that the best arguable case of the defendant is not good enough. If the court answers the issue conclusively in favour of the defendant at the Section 7(3) stage, it has to be on the basis of the averments in the plaint or on an interpretation of admitted documents produced by the parties that may leave no room for any oral evidence to be received in such regard. 16. When an issue as to the legal relationship between the parties is raised by a defendant in an eviction suit governed by the provisions of the said Act, it is really the jurisdiction of the court to pass a decree in such action that is questioned. And, it is elementary that when the very authority of the court to decide the lis is challenged, the same has to be answered at some stage before the court can proceed to assess the merits of the grounds for eviction or pass a decree on such consideration. 17. Again, the view expressed here finds support in the interpretation of the similar provisions in the 1956 Act in the judgment of Baidyanath Kundu, particularly that the time prescribed for raising the dispute by the defendant under Section 7(2) of the Act has no nexus with the plea taken by the defendant that he is not the tenant or that the plaintiff is not his landlord by way of an objection at the Section 7(3) stage. Indeed, on such aspect of the matter, the judgment in Baidyanath Kundu referred to a Division Bench decision reported at ILR 1967 1 (Cal) 449 (Tirthapati Sen v. Paresh Nath Sen) and concurred therewith. There are several subsequent judgments to the same effect. 18. In the light of the above, the trial court in this case erred in not adjudicating on the relationship between the plaintiff and the defendant in this case and exploring whether the petitioner herein was, indeed, the tenant in respect of the suit premises or a tenant under the plaintiff. The trial court ought to have afforded the petitioner herein a chance to contest the plaintiff’s application under Section 7(3) of the Act. An application to strike out the defence under Section 7(3) of the Act cannot be allowed without reference to the defendant unless the question as to the legal relationship between the parties has already been decided under Section 7(2) of the Act. 19. Accordingly, CO 2448 of 2016 is allowed by setting aside the order impugned dated April 21, 2016 and by restoring the plaintiff’s application under Section 7(3) of the Act of 1997 to the board of the trial Judge with a request to the trial Judge to adjudicate on the relationship between the parties and the status of the defendant qua the suit premises. Only if the defendant is regarded as the tenant in respect of the suit premises, will the defence be struck out. If the defendant cannot be regarded as the tenant in respect of the suit premises, the suit has to immediately fail. However, whether such issue is decided on summary basis or in a more protracted trial, it will be for the trial court to take an appropriate call. 20. There will be no order as to costs. 21. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.