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2018 DIGILAW 572 (CAL)

Probodh Chakraborty v. Ambika Banerjee

2018-08-16

SABYASACHI BHATTACHARYYA

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JUDGMENT : Sabyasachi Bhattacharyya, J. The defendants in an eviction suit, filed by the opposite parties under the West Bengal Premises Tenancy Act, 1997 have preferred the instant revisional application. By the impugned order, the Trial Court allowed an application filed by the plaintiffs/opposite parties under Section 7(3) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as “the 1997 Act”), thereby striking out the defence against delivery of possession of the petitioners and fixing the suit for peremptory hearing. 2. The basis on which the Trial Court proceeded was that the defendants/petitioners had neither filed any application under Section 7(2) of the 1997 Act, nor made any deposit either the said provision or under Section 7(1) of the 1997 Act. It was further held by the Court below that a previous suit, bearing Title Suit No. 371 of 2002, filed by the defendants had been dismissed for default on February 14, 2011. Such suit was apparently filed on the ground of adverse possession, as per the finding of the Trial Court. 3. Learned counsel for the petitioners contended that the petitioners categorically disputed the landlord-tenant relationship between the parties. Learned counsel places various portions of the defendants’ written objection to the application under Section 7(3) in support of the contention that the defendants/petitioners had clearly denied the title as well as land-lordship of the opposite parties in respect of the suit premises in several places of such objection. 4. Learned counsel also places certain portions of the written statement filed by the petitioners in the eviction suit to show that the petitioners had categorically denied the landlord-tenant relationship between the parties and had claimed title to the suit premises by way of adverse possession as against the plaintiffs and/plaintiffs’ predecessor. 5. In the said written statement, the defendants/petitioners had also mentioned that the petitioners had filed Title Suit No. 371 of 2002 against the opposite party no. 1 and one Ratna Banerjee. It was mentioned in the written statement that the said suit was still pending. However, it was admitted that subsequently the previous suit had been dismissed for default. 6. Learned counsel for the petitioners argues that, in view of such specific challenge as to landlord-tenant relationship, the Trial Court, even while adjudicating an application under Section 7(3) of the 1997 Act, ought to have adjudicated upon such dispute as to landlord tenant relationship. However, it was admitted that subsequently the previous suit had been dismissed for default. 6. Learned counsel for the petitioners argues that, in view of such specific challenge as to landlord-tenant relationship, the Trial Court, even while adjudicating an application under Section 7(3) of the 1997 Act, ought to have adjudicated upon such dispute as to landlord tenant relationship. Since no deposit had been made by the petitioners under Section 7(1) or Section 7(2) of the 1997 Act, on the premise that the petitioners denied the land-lordship of the opposite parties, the hearing of the application under Section 7(3) was the first occasion where the petitioners had a scope to urge such dispute. 7. As such, it was the incumbent duty of the Trial Court to decide such issue first, at least prima facie, before proceeding to strike out the defence of the petitioners. 8. Learned counsel for the petitioners cites, in this context, a judgment reported at 2018 (1) CHN (Cal) 705 [Jiten Joyder vs. Urmila Jaiswal], where a co-ordinate bench of this Court held as follows:- “11. 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. 12. 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. 12. Thus, it was open to this petitioners 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.” 9. Learned counsel further cites a judgment reported at 2008(2) CLJ (Cal) 675 [Sri Manik Lal Sett & Anr. Vs. Smt. Hira Basu @ Surali Basu & Ors], where another co-ordinate bench of this Court held that the Court, while deciding the question of landlord-tenant relationship in connection with an application under Section 17(2) or Section 17(2A)(b) of the West Bengal Premises Tenancy Act, 1956, had to frame an issue thereon and then decide such application. 10. Learned counsel for the petitioners then cites another co-ordinate Bench judgment of this Court reported at 2018 SCC OnLine Cal 3057 [Lal Bahadur Singh vs. Sri Amit Kumar Chamaria and another], where it was held inter alia that it was not obligatory on the part of a tenant to comply the conditions enshrined under Section 7(1) of the 1997 Act if a serious dispute was raised as to landlord-tenant relationship. Such issue had to be adjudicated while disposing of an application under Section 7(2) of the 1997 Act. 11. Learned counsel for the petitioners next cites another co-ordinate Bench judgment of this Court reported at AIR 1972 Cal 443 [Baidyanath Kundu vs. Smt. Jyotshna Rani Karmakar], where it was held as follows: “11. In the instant case, the petitioners has denied the relationship of landlord and tenant and, as aforesaid, he has raised the defence both in the written statement as also in his petition of objection to the application under Section 17(3). From the pleadings of the parties an issue arises as to the existence of relationship of landlord and tenant between the parties. From the pleadings of the parties an issue arises as to the existence of relationship of landlord and tenant between the parties. The implied effect of this denial of relationship is, that according to the petitioners the provision of the Act does not apply to the facts and circumstances of the case and that the Court has no jurisdiction to pass a decree for eviction against the petitioners. In order to proceed further in the matter the Court must first of all decide whether there is relationship of landlord and tenant between the parties. In case the Court finds that there is no such relationship between the parties, the Court will not have any jurisdiction to pass a decree for ejectment. Therefore, in my opinion, it is incumbent upon the Court to first of all decide the issue as to the existence of relationship of landlord and tenant. The Court cannot either strike out the defence against delivery of possession or decree the suit without deciding the said issue as to the existence of relationship of landlord and tenant. 12. The view which I take finds support from a Bench decision of this Court in Tirthapati Sen v. Paresh Nath Sen, ILR (1967) 1 Cal 449. In that decision it has been held by A.C. Sen, J. that there is nothing in the Act which prevents the Court from first deciding the issue in the suit as to whether the defendant is the tenant of the plaintiff and thereafter, deciding the plaintiff’s application under Section 17(3) or from deciding both together; that in either case the Court cannot strike out the defence against delivery of possession on the ground that the defendant did not apply under Section 17(2) within the prescribed time, even if the said issue is decided in favour of the tenant, and that moreover, the time prescribed for raising the dispute by the defendant under Section 17(2) has no application to the plea taken by the defendant that he is not the tenant by way of objection to an application by the plaintiff under Section 17(3). Most respectfully I agree with the aforesaid Bench decision. The learned Munsif was not justified in not considering the contention of the petitioners regarding the dispute as to the existence of relationship of landlord and tenant even at the time of hearing of the application under Section 17(3). Most respectfully I agree with the aforesaid Bench decision. The learned Munsif was not justified in not considering the contention of the petitioners regarding the dispute as to the existence of relationship of landlord and tenant even at the time of hearing of the application under Section 17(3). Before passing an order under Section 17(3) the Court has to determine whether there is any such relationship, particularly in a case where such relationship has been denied. In my opinion, the learned Munsif acted illegally and with material irregularity in the exercise of his jurisdiction in not considering the contention of the petitioners and deciding the dispute before striking out the defence of the petitioners against delivery of possession.” 12. Lastly, learned counsel for the petitioners cites a judgment reported at (1981) 3 SCC 486 [Bimal Chand Jain vs. Sri Gopal Agarwal], where the Hon’ble Supreme Court held as follows:- “It seems to us on a comprehensive understanding of Rule 5 of Order XV that the true construction of the Rule should be thus. Sub-rule (1) obliges the defendant to deposit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and further, whether or not he admits any amount to be due, to deposit regularly throughout the continuation of the suit the monthly amount due within a week from the date of its accrual. In the event of any default in making any deposit, “the court may subject to the provisions of sub-rule (2) strike off his defence”. We shall presently come to what this means. Sub-rule (2) obliges the court, before making an order for striking off the defence to consider any representation made by the defendant in that behalf. In other words, the defendant has been vested with a statutory right to make a representation to the court against his defence being struck off. If a representation is made the court must consider it on its merits, and then decide whether the defence should or should not be struck off. This is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred there is good reason for it. This is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred there is good reason for it. Now, it is not impossible that the record may contain such material already. In that event, can it be said that sub-rule (1) obliges the court to strike off the defence? We must remember that an order under sub-rule (1) striking off the defence is in the nature of a penalty. A serious responsibility rests on the court in the matter and the power is not to be exercised mechanically. There is a reserve of discretion vested in the court entitling it not to strike off the defence if on the facts and circumstances already existing on the record it finds good reason for not doing so. It will always be a matter for the judgment of the court to decide whether on the material before it, notwithstanding the absence of a representation under sub-rule (2), the defence should or should not be struck off. The word “may” in sub-rule (1) merely vested power in the court to strike off the defence. It does not oblige it to do so in every case of default. To that extent, we are unable to agree with the view taken by the High Court in Puran Chand. We are of opinion that the High Court has placed an unduly narrow construction on the provisions of clause (1) of Rule 5 of Order XV.” 13. Upon placing reliance on those judgments, learned counsel for the petitioners submits that the Court had to decide the issue of landlord-tenant relationship prior to striking out the petitioners’ defence. 14. Learned counsel for the petitioners also argues that the dismissal for default of a previous title suit did not amount to any decision on merits and could not debar the petitioners from making out a defence on similar plea. Hence, the dismissal for default of the previous suit was irrelevant for deciding the landlord-tenant relationship of the parties. 15. In controverting such submission, learned counsel for the opposite parties argues that even if the defendants/petitioners disputed the landlord-tenant relationship, the petitioners had to file an application under Section 7(2) of the 1997 Act to raise such dispute. Hence, the dismissal for default of the previous suit was irrelevant for deciding the landlord-tenant relationship of the parties. 15. In controverting such submission, learned counsel for the opposite parties argues that even if the defendants/petitioners disputed the landlord-tenant relationship, the petitioners had to file an application under Section 7(2) of the 1997 Act to raise such dispute. Without taking such recourse, it did not lie in the mouth of the petitioners to say that the Trial Court committed a jurisdictional error in not deciding the issue. 16. It was further submitted on behalf of the opposite parties that the Trial Court had, in effect, decided the issue of landlord-tenant relationship by adverting to the dismissal of the previous suit, which was filed by the petitioners themselves for declaration of their title on the basis of adverse possession. Such dismissal debarred the petitioners from raising the same issue in the present suit, in view of the bar contemplated in Order IX Rule 9 of the Code of Civil Procedure. 17. Moreover, merely assertion of adverse possession without giving any details in support of such contention, in the written statement of the present suit, did not amount to raising any real controversy as to the landlord-tenant relationship between the parties. The plea of adverse possession made it implicit that the petitioners admitted that the opposite parties were true owners of the suit property and, as such, the consequential land-lordship of the opposite parties. As such, it could not be argued that the Trial Court did not decide the said issue while striking out the petitioners’ defence. 18. Learned counsel for the opposite parties cites a judgment reported at 82 CWN 515 [Sudhir Kumar Sarkar vs. P.C. Gupta], where it was held, in particular in paragraph no. 7 thereof, that a landlord-tenant dispute raised by the defendants in an eviction suit, had to be bona fide and not a sham dispute. 19. In the present case, it is argued, the dispute as to adverse possession, as purportedly raised by the petitioners, was absolutely flimsy and could not afford the petitioners any reason to deny the landlord-tenant relationship of the parties. In view of the admitted ownership of the opposite parties, landlord-tenant relationship between the parties was a necessary corollary. 20. As such, it was argued that the impugned order does not suffer from any illegality. 21. In view of the admitted ownership of the opposite parties, landlord-tenant relationship between the parties was a necessary corollary. 20. As such, it was argued that the impugned order does not suffer from any illegality. 21. Upon a consideration of the judgments cited by the petitioners, in particular Jiten Joyder (supra) and Baidyanath Kundu (supra), it seems to have been well-settled that even if no deposit under Section 7(1) and/or deposit, accompanied by an application under Section 7(2), of the 1997 Act, were made/filed, it was the incumbent duty of the trial Court, while adjudicating an application under Section 7(3) of the 1997 Act, to decide, at least prima facie, the issue of landlord-tenant relationship between the parties. 22. In the impugned order, the Trial Court did not proceed merely on the basis of absence of deposits under Sections 7(1) and 7(2) of the 1997 Act but also categorically observed about the dismissal for default of Title Suit No. 371 of 2002 as well as the ground of adverse possession having been taken by the petitioners. As such, it could not be said that the Court below did not advert to the issue of landlord-tenant relationship at all. Although the reasons in such regard might be on the cryptic side, the Trial Court indeed considered the case made out by the petitioners with regard to their dispute as to landlord-tenant relationship between the parties. 23. Undoubtedly, dismissal for default of Title Suit No. 371 of 2002, filed by the defendants for title on the ground of adverse possession could not debar the petitioners from raising such issue again in the present suit. Order IX Rule 9 of the Code of Civil Procedure only prevents filing of a second suit on the same cause of action and, on principle, does not debar the plaintiff in the previous suit from setting up the same basis of title in defence in a subsequent suit. 24. However, the defence of the petitioners, as revealed in paragraph no. 5(g) of the petitioners’ written statement in the present eviction suit, by merely asserting adverse possession without furnishing details thereof (in effect admitting the plaintiffs to be true owners), is absolutely moonshine and flimsy. 24. However, the defence of the petitioners, as revealed in paragraph no. 5(g) of the petitioners’ written statement in the present eviction suit, by merely asserting adverse possession without furnishing details thereof (in effect admitting the plaintiffs to be true owners), is absolutely moonshine and flimsy. The defendants/petitioners have admitted the title of the plaintiffs and their predecessors but have only quoted the ingredients of adverse possession without furnishing any details whatsoever as to the exact date, time and occasion of commencement of such adverse possession and/or furnishing any prima facie proof of such commencement and/or continuance of continuous, open and hostile possession of the said premise by the defendants/petitioners. In fact, the ingredient of hostile possession was replaced by “peaceful possession” in the written statement, which did not even satisfy the basic ingredients of adverse possession. 25. Since the Trial Court adverted to such pleading in the written statement as well, it could not be said that the issue of landlord-tenant relationship was entirely overlooked. 26. Since the basis of challenge of the landlord-tenant relationship had no ground to stand on, the ultimate conclusion of the Trial Court in turning down the challenge as to landlord-tenant relationship was absolutely justified. 27. In the event the present matter is remanded to the Trial Court for re-adjudication of such a palpably sham dispute of landlord-tenant relationship, such a course of action will occasion more injustice than justice. The exercise would be futile, since, on the face of the defence taken by the petitioners in their written statement as well as written objection to the application under Section 7(3) of the 1997 Act, it is evident that the dispute as to landlord-tenant relationship between the parties, as raised by the petitioners, is sham and frivolous and did not merit any further consideration than that given by the Court below. 28. In such circumstances, the impugned order need not be interfered with, being justified and within jurisdiction. 29. Accordingly, C.O. No. 1704 of 2018 is dismissed on contest, without, however, any order as to costs. 30. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.