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2018 DIGILAW 200 (CAL)

Lal Bahadur Singh v. Amit Kumar Chamaria

2018-01-31

HARISH TANDON

body2018
JUDGMENT : Harish Tandon, J. 1. This revisional application is directed against order No. 44 dated 25th October 2017 passed by the learned Civil Judge (Junior Division), 1st Court, Howrah in Title Suit No. 578 of 2015, by which an application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as 'said Act') is rejected and simultaneously the defence of the defendant/petitioner was struck off. It is a suit by the plaintiffs/opposite parties seeking eviction of the defendant/petitioner solely on the ground of default. In paragraph 1 of the plaint, the plaintiffs/opposite parties have categorically averred that they are the joint owners of the suit property and the defendant is a tenant at the rent of Rs. 22/- per month payable according to English calendar. It is alleged that the defendant/petitioner is a defaulter in payment of rent since the month of January 1986 and despite having served with the notice under section 20 of the said Act for enhancement of rent, he failed and neglected to pay the same. 2. After entering appearance, the petitioner filed an application under section 7(2) of the said Act raising a dispute not only on the period of default but on the rate of rent as well as the relationship of the landlord and tenant. It is alleged in the said application that the petitioner was inducted as a monthly tenant of one Ram Gopal Chamaria, the husband of Smt. Tribeni Devi Chamaaria and the rent was being collected through the Rent Controller. Subsequently, one Raghu Nath Prasad Boobna claiming himself to be the Receiver appointed by the Court collected rent up to the month of December 2014 and the rent receipt was granted up to the month of December 1985. 3. There appears to be a fallacy in the aforesaid statement but one can reasonably proceed on such averments that the petitioner not only challenged the period of default and the rate of rent but a serious doubt was also raised upon the existence of the relationship of landlord and tenant between him and the plaintiffs/opposite parties. 3. There appears to be a fallacy in the aforesaid statement but one can reasonably proceed on such averments that the petitioner not only challenged the period of default and the rate of rent but a serious doubt was also raised upon the existence of the relationship of landlord and tenant between him and the plaintiffs/opposite parties. The Trial Court proceeded to reject the said application solely on the ground that once the defendant/petitioner has admitted default in payment of rent from the month of January 2015 till April 2015 and having not deposited the same, as required under section 7(1) of the said Act, the defence is liable to be struck down under section 7(3) of the said Act. 4. My endeavour has failed to find out any expressions or whisper in the impugned order where the Court has determined and/or adjudicated the dispute as to the existence of relationship of landlord and tenant. The first and foremost point, which struck in my mind, is whether it is obligatory on the part of the tenant to deposit the rent under section 7(1) of the said Act if a serious dispute is raised on the existence of relationship of landlord and tenant between the parties. The answer can be traced from a judgment of this Court rendered in case of Sri Manik Lal Sett & Anr. vs. Smt. Hira Basu @ Surali Basu & Ors., reported in 2008 (2) Calcutta Law Journal (Cal) 675, wherein it is held that once a dispute is raised by the tenant on the relationship of landlord and tenant, it is obligatory and mandatory on the part of the court to determine the same along with the issue. 5. The reason underlining the aforesaid observation can be reasonably ascertained from the fact that such dispute strikes at the root of the maintainability of the proceeding. If an issue of relationship of landlord and tenant is decided along with an application under section 7(2) of the said Act in favour of the tenant/defendant, it may invite the dismissal of the suit instantly and the Court would not have to make further exercise in deciding the other issues in the said suit. Another reason behind the aforesaid concept is that the West Bengal Premises Tenancy Act, 1997 can only apply when there exist a relationship of landlord and tenant between the parties. 6. Another reason behind the aforesaid concept is that the West Bengal Premises Tenancy Act, 1997 can only apply when there exist a relationship of landlord and tenant between the parties. 6. Once the suit is filed on any or more grounds enumerated under section 6 of the said Act, it logically infers that the plaintiff being the owner/landlord admits the defendant to be a tenant and protected under the said Act and the provisions of the said Act would immediately become applicable to and/or govern the relationship of the parties. 7. There is no quarrel to the settled proposition of law that the word "dispute" appearing in section 7(2) of the said Act is of wide amplitude and imbibe within itself all conceivable disputes including the dispute relating to the relationship of landlord and tenant. The word "determine" incorporated in the aforesaid provision conveys a clear legislative intent that it is obligatory on the part of the Court to decide the dispute raised in the application under section 7(2) of the said Act even in absence of the defendant on the date when the said application was taken up for final disposal. In other words, once a dispute is raised by a tenant/defendant under section 7(2) of the said Act, the court cannot dismiss the said application in default as the defendant did not take any steps but must proceed to determine the dispute on the basis of the materials available on record, more particularly, the statements made by the plaintiff either in the plaint or in the written objection filed to the said application. 8. It is axiomatic to record that the determination of dispute is sine qua non under the aforesaid provision and non-adherence may lead to an absurdity and rendering the entire decision infirm and/or illegal. There is another aspect, which this Court feels to highlight, so far as it relates to a statutory obligation of the tenant/defendant under sub-section (1) of section 7 of the said Act. It would not be wrong to say that if a serious dispute on the existence of relationship of landlord and tenant is raised, the tenant cannot be compelled to comply the provisions contained under sub-section (1) of section 7 of the said Act, unless such dispute is determined by the Court. 9. It would not be wrong to say that if a serious dispute on the existence of relationship of landlord and tenant is raised, the tenant cannot be compelled to comply the provisions contained under sub-section (1) of section 7 of the said Act, unless such dispute is determined by the Court. 9. The definition of a landlord appearing under section 2(c) of the said Act envisage that any person who, for the time being, is receiving, or is entitled to receive, the rent for any premises, whether on his own account or on account of, or on behalf of, or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant. 10. The expression "the person, who is receiving or entitled to receive the rent" is of great importance and unless such right is determined by the Court and if a dispute is raised on the relationship of landlord and tenant, it is not obligatory on the part of a tenant to comply the conditions enshrined under sub-section (1) of section 7 of the said Act. 11. However, my attention is drawn to the fact that the Court after rejecting the application for adjournment filed by the defendant/petitioner proceeded to pass an order under section 7(2) of the said Act. As indicated herein above, even if the defendant does not appear before the Court, it is a statutory obligation on the Court to determine the dispute under the aforesaid provision and one cannot find any fault into it but it would be a different when the Court did not decide the core issue, which strikes at the root of the jurisdiction rendering the entire judgment unsustainable and beyond the periphery of the said provision. 12. Since this Court finds that the Trial Court has acted illegally and with material irregularity in disposing of the application under section 7(2) of the said Act filed by the petitioner, the impugned order cannot be sustained. The impugned order is, thus, set aside. 13. 12. Since this Court finds that the Trial Court has acted illegally and with material irregularity in disposing of the application under section 7(2) of the said Act filed by the petitioner, the impugned order cannot be sustained. The impugned order is, thus, set aside. 13. The Trial Court is directed to permit the parties to lead evidence on all the disputes raised in the said application after framing a specific issue as to the relationship of landlord and tenant and shall dispose of the same within two months from the date of communication of this order by recording proper reasons. 14. It goes without saying that in order to adhere the time limit indicated herein above, the Trial Court, if necessary, shall fix the matter on day to day basis and shall decline all unnecessary adjournments to either of the parties except under unforeseen and unavoidable circumstances. 15. The learned advocates representing the respective parties have assured this Court that their counterparts in the Trial Court shall cooperate and assist the learned Judge to dispose of the said application within the time limit, as indicated above and shall not indulge themselves into any act, which would frustrate and defeat the same. 16. With these observations, the revisional application is disposed of. There shall, however, be no order as to costs.