Research › Search › Judgment

Calcutta High Court · body

2019 DIGILAW 834 (CAL)

Sandip Das v. Prosanta Bhattacharya

2019-09-02

MANOJIT MANDAL

body2019
JUDGMENT : 1. The petitioner is the defendant in Title Suit No. 12 of 2006 pending on the file of the learned Civil Judge, (Junior Division), 3rd Court, Howrah. It is a suit for ejectment and for khas possession. 2. Exercising his right conferred by Section 7(2) of the West Bengal Premises Tenancy Act, 1997 (hereinafter W.B.P.T Act), the petitioner filed an application claiming determination as to whether relationship of landlord and tenant between the plaintiff and the defendant exists or not, and in the event of the Court finding that the relationship of landlord and tenant thus exist between the parties to the suit, to determine the question of dues on account of rent payable by the petitioner and to allow/permit him to deposit the same. 3. The application was opposed by the plaintiff/opposite party herein, by filing written objection. 4. By an order dated May 19, 2016 the application was disposed of by the learned Trial Court on contest and it was held therein that defendant is a defaulter in payment of rent at the rate of Rs.400/- per month for the period from January 2005 till January 2006 and hence, "defendant is a defaulter of payment of rent from January 2005 to January 2006, i.e., 13 months at the rate of Rs.400/- per month, i.e., Rs. 5,200/- and defendant is further liable to pay interest on the said amount at the rate of Rs.520/- and as such the defendant was liable to pay total amount of rent to the tune of Rs.5,720/- inter alia." 5. Feeling aggrieved by the said order the plaintiff/opposite party as petitioner instituted a civil revisional application before this Court under Article 227 of the Constitution of India being C.O. No. 2424 of 2016. Feeling aggrieved by the said order the plaintiff/opposite party as petitioner instituted a civil revisional application before this Court under Article 227 of the Constitution of India being C.O. No. 2424 of 2016. In such application the plaintiff/opposite party reiterated his stand that defendant was a monthly premises tenant under the plaintiff in respect of a garage shed and shop room using for the purpose of a running shop and garage in the ground floor at Premises No. 93/7/1, Kshetra Banerjee Lane, P.S. Shibpur, District- Howrah at a rental of Rs.2,800/-payable according to English Calendar and at the time of induction an agreement was executed on 15.04.2002 in between the plaintiff and the defendant and in the said agreement it was stipulated that if the defendant failed to pay admitted monthly rent of consecutive two months, he will be entitled to close down the tenanted garage and shop room and may be effected on the same ground and the defendant was a defaulter and has failed to pay rent since the month of January, 2005. 6. The revisional application was heard on contest by learned Single Judge of this Court. By judgment and order dated November 15, 2017 the revision application was disposed of. The order impugned dated May 19, 2016 was set aside. The application under Section 7(2) of WBPT Act was directed to be decided afresh upon consideration of the entire evidence on record and upon giving hearing to both sides. 7. The Trial Judge, after communication of the order of this Court dated November 15, 2017 heard the parties afresh and the application under Section 7(2) of WBPT Act filed by the petitioner on March 3, 2006 was allowed on contest but without costs by the order impugned. Being aggrieved, the petitioner preferred this revisional application. 8. Having heard the learned Counsel for the respective parties and on perusal of the materials on record, I find that the case of plaintiff was that the rate of rent is Rs.2,800/- per month whereas the case of the tenant/petitioner was that rate of rent was Rs.400/- per month. To prove the case the petitioner/tenant has filed rent receipts showing payment of rent at the rate of Rs.400/- for the month of July, 2004 to December, 2004. To prove the case the petitioner/tenant has filed rent receipts showing payment of rent at the rate of Rs.400/- for the month of July, 2004 to December, 2004. On the other hand, plaintiff has also filed challan of Civil Deposit showing payment of rent at the rate of Rs.400/- for the period of February, 2006 to December, 2006. Plaintiff also filed the agreement for tenancy (Exbt.3) which is admitted by the petitioner. The said agreement clearly proves that the tenancy was in respect of garage and shop room for a consolidated amount of Rs.2,800/-. The said agreement also proves that there is no separation of rent. Rent receipts for the period from June, 2003 to October, 2003 clearly disclose that rent of above disputed property is Rs.2,800/- per month. The petitioner has not challenged the bill book counterparts (Exbt. A). In such situation, it may be concluded that rent in respect of the suit properties was split up into two parts Rs.400/- for the shop and Rs.2,400/- for the garage, altogether Rs.2,800/- and plaintiff issued bill against the payment of rent only. The petitioner has challenged the agreement for tenancy dated April 15, 2002 by saying that it was cancelled and not acted upon. But in support of his claim, the petitioner has not filed any document to show that he cancelled the agreement for tenancy. Therefore, the petitioner/tenant did not make any attempt to rebut the presumption of such tenancy agreement executed between him and the opposite party. So, an adverse presumption shall be taken against the petitioner/tenant under Section 114 of the Evidence Act due to having not to produce any paper against such tenancy agreement dated April 15, 2002. This apart, it is not the case of the petitioner/tenant that the rent was reduced to Rs.400/- from the rate of rent of Rs.2,800/-. Rent may be enhanced considering the present market price but the same cannot be al all reduced. 9. Therefore, after analyzing the above facts, I am of the view, that there is no ground to disbelieve the statement of the plaintiff in which he stated the rent was of Rs.2,800/- per month. 10. In the light of the foregoing reasoning, this Court find no illegality and/or infirmity in the order impugned dated 13.03.2018 passed by the learned Civil Judge (Junior Division), 3rd Court, Howrah, in Title Suit No. 12 of 2006. 11. 10. In the light of the foregoing reasoning, this Court find no illegality and/or infirmity in the order impugned dated 13.03.2018 passed by the learned Civil Judge (Junior Division), 3rd Court, Howrah, in Title Suit No. 12 of 2006. 11. C.O. No. 1580 of 2018 is thus, dismissed. 12. There will be, however, no order as to costs. 13. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.