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1991 Supreme(Cal) 286
Calcutta High Court
MONORANJAN MALLICK AND MANABENDRA NATH ROY, JJ.
Santi Nath Sha, Appellate - Appellant
Versus
Santosh Kumar Chatterjee - Respondents
Appeal from Original Decree No.233 of 1987
Decided On : 5 June 1991
Amal Krishna Saha and Amar Nath Shaw, for Appellant; R.P. Bagolia and Snehansu Sekhareswar Ray, for Respondent.
The court held that the trial court erred in not disposing of the defendant-appellant's application under Section 151 of the CPC praying for setting aside the ex parte order striking out the defence and in not considering the question of partial eviction.
Headnote:
WEST BENGAL PREMISES TENANCY ACT, 1956 - Sections 17(1), 17(3) - EJECTMENT SUIT - STRIKING OUT DEFENCE - APPLICATION UNDER SECTION 17(3) - JURISDICTION OF COURT TO CONDONE DELAY IN DEPOSIT OF RENT - REASONABLE REQUIREMENT - PARTIAL EVICTION.
Fact of the Case:
The plaintiff-respondent filed an ejectment suit against the defendant-appellant on the ground of reasonable requirement. The plaintiff-respondent filed an application under Section 17(3) of the West Bengal Premises Tenancy Act for striking out the defence of the defendant-appellant on the ground that he did not comply with the provisions of Section 17(1) of the Act. The defendant-appellant filed a written objection against the application but did not appear on the date of hearing. The trial court allowed the plaintiff-respondent's application and struck out the defence. The defendant-appellant filed an application under Order 9, Rule 13 of the Code of Civil Procedure (CPC) to set aside the ex parte decree and another application under Section 151 of the CPC for setting aside the order striking out the defence. The trial court set aside the ex parte decree but refused to vacate the order striking out the defence and condone the delay in depositing the rent. The defendant-appellant filed a revision petition in the High Court, which was dismissed. The trial court then took up the hearing of the suit and decreed the plaintiff-respondent's suit for ejectment on the ground of reasonable requirement.
Finding of the Court:
The court held that the trial court did not apply its mind properly in affirming the order striking out the defence without disposing of the defendant-appellant's application under Section 151 of the CPC. The court also held that the trial court erred in not considering the question of partial eviction.
Issues: (1) Whether the order passed by the trial court striking out the defence on the ground that the defendant-appellant did not adduce any evidence in support of his petition is illegal? (2) Whether the trial court erred in not disposing of the defendant-appellant's application under Section 151 of the CPC praying for setting aside the ex parte order striking out the defence? (3) Whether the trial court erred in not considering the question of partial eviction.
Ratio Decidendi: (1) The court held that there is nothing in Section 17(3) of the West Bengal Premises Tenancy Act, 1956 to indicate that the trial court has to call upon the plaintiff to adduce evidence in support of the petition before disposing of the application under the said provision. However, the trial court may call upon the parties to adduce evidence in cases where the defendant contests the case of the plaintiff. (2) The court held that the trial court did not properly apply its mind in affirming the order striking out the defence without disposing of the defendant-appellant's application under Section 151 of the CPC. The court also held that the trial court should have considered the defendant-appellant's application on merits and decided whether to set aside the order striking out the defence or to condone the delay in depositing the rent. (3) The court held that the trial court erred in not considering the question of partial eviction. The court held that the trial court should have considered whether the partial eviction of the defendant-appellant would satisfy the need of the plaintiff-respondent.
Final Decision: The court allowed the appeal, set aside the judgment and decree of the trial court, and remanded the suit for fresh hearing. The court directed the trial court to dispose of the defendant-appellant's application under Section 151 of the CPC within one month from the date of receipt of the record. The court also directed the trial court to consider the question of partial eviction and dispose of the suit on merits in accordance with law.
MONORANJAN MALLICK, J. :- This is an appeal against the judgment and decree passed by the Judge 10th bench, City Civil Court Calcutta in Ejectment Suit No.237 of 1978. The facts which are necessary for disposing of this appeal may be briefly stated as follows :-
The plaintiff respondent filed the above ejectment suit against the present appellant on the ground of reasonable requirement among other grounds. The present respondent filed an application under S.17(3) of the West Bengal Premises Tenancy Act for striking out the defence of the defendant appellant on the ground that he did not comply with the provisions of Section 17(1) of the West Bengal Premises Tenancy Act.
2. Even thoght the apellant filed the written objection against said application he did not appear on 1-7-1982 when the said application was taken up for hearing and the learned trial Judge allowed the plaintiff respondents application under Sec.17(3) of the West Bengal Premises Tenancy Act and struck out the defence. Thereafter as the defendant did not appear to contest the suit on 6-8-1982 i.e. the date for peremptory hearing the learned trial Judge on considering the evidence adduced by the plaintiff respondent decreed the plaintiff respondents suit for ejectment on the ground of reasonable requirement. The present appellant thereafter filed an application under O.9, R.13, of C.P.C. to set aside the ex parte decree and also another application under Section 151, C.P.C. for setting aside the order dated 1-7-1982 striking out the defence against delivery of possession. The learned trial Judge on hearing the application under O.9, R.13, C.P.C. registered as a Misc. case allowed the same and set aside the ex parte decree on 16-1-1984 and restored the suit to file for hearing. Then the defendant filed another application under Section 151, C.P.C. praying for condoning the delay in depositing the rent for the month of Falgun 1387 B.S. On 4-4-1984 the learned trial Judge refused to vacate the original order dated 1-7-1982 striking out the defence ex parte and to condone the delay in depositing the rent for the month of Falgun 1387 B.S. Then the present appellant moved High Court in revision against the said order and the High Court in revision dismissed the said application affirming the order passed by the learned trial Judge refusing to condone the delay on the ground that the learned trial Judge in view of the decision in Provabati Chakrabarty v. Satyendra Nath Chatterjee reported in 1978 (1) Cal LJ page 629 had, no jurisdiction to condone the delay in respect of the deposit of rent made with the rent controller. Thereafter, the learned trial Judge took up the hearing of the suit. As the defence against delivery of possession was struck out the learned trial Judge permitted the present appellant only to cross-examine the witnesses adduced by the plaintiff and did not permit the defendant appellant to adduce any evidence in support of his defence.
3. Before the learned trial Judge the plaintiff respondent pressed for ejectment of the defendant appellant only on the ground of reasonable requirement and the learned trial Judge on consideration the accommodation available with the plaitiff and the accommodation required regard being had to the members of the family of the plaintiff respondent accepted the case of the plaintiff respondent that he reasonably required the whole suit premises for his own occupation for himself and members of his family. He, therefore, granted the plaintiff respondent the decree for ejectment. Being aggrieved the defendant appellant has preferred this appeal.
4. Before us the appellant has raised the following four grounds, namely :-
(1) The learned trial Judge committed a great illegality in disposing of the plaintiff respondents petition under Section 17(3) of the West Bengal Premises Tenancy Act without calling upon the plaintiff respondent to adduce evidence in support of the said petition and the order is, therefore, on the fa
