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1972 Supreme(Cal) 36
HIGH COURT OF CALCUTTA
Murari Mohan Dutt
BAIDYANATH KUNDU - Appellant
Versus
SM. JYOTSHNA RANI KARMAKAR - Respondent
CR 938 Of 1971
Decided On : FEBRUARY 07, 1972
Gita Lalwani, M.N.Ghosh, PURNA CHANDRA BASU
A dispute as to the existence of landlord and tenant relationship can be raised by objection to an application under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956, and the court is required to decide such dispute before striking out the defense against delivery of possession.
Headnote:
WEST BENGAL PREMISES TENANCY ACT, 1956 - SECTION 17 (2) AND 17 (3) - DISPUTE AS TO EXISTENCE OF LANDLORD AND TENANT RELATIONSHIP - CAN BE RAISED BY OBJECTION TO APPLICATION UNDER SECTION 17 (3) - COURT TO DECIDE DISPUTE BEFORE STRIKING OUT DEFENCE AGAINST DELIVERY OF POSSESSION.
Fact of the Case:
The petitioner, a tenant, challenged the order of the Munsif striking out his defense against delivery of possession in an ejectment suit filed by the opposite party, the landlord. The petitioner denied the relationship of landlord and tenant and claimed that he had paid rent to the landlord's husband, who had executed an agreement of tenancy describing himself as the landlord. The petitioner also argued that the deposits made with the Rent Controller were valid.
Finding of the Court:
The court held that the Munsif erred in not considering the petitioner's contention regarding the dispute as to the existence of landlord and tenant relationship before striking out the defense against delivery of possession. The court found that the petitioner had raised the defense both in the written statement and in his petition of objection to the application under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956, and that an issue arose as to the existence of such relationship between the parties.
Issues: 1. Whether the petitioner could raise the dispute as to the existence of landlord and tenant relationship by objection to the application under Section 17 (3) of the Act. 2. Whether the court was required to decide the dispute before striking out the defense against delivery of possession.
Ratio Decidendi: 1. The court interpreted Section 17 (2) of the Act to allow the tenant to raise a dispute as to the existence of landlord and tenant relationship by objection to the application under Section 17 (3), and not only by an application under Section 17 (2). 2. The court held that the court was required to first decide the issue as to the existence of landlord and tenant relationship before passing an order under Section 17 (3), particularly in a case where such relationship had been denied. The court found that the Munsif acted illegally and with material irregularity in not considering the petitioner's contention and deciding the dispute before striking out the defense against delivery of possession.
Final Decision: The court set aside the order of the Munsif and directed him to first decide the issue as to the existence of landlord and tenant relationship between the parties and thereafter to dispose of the application of the opposite party under Section 17 (3).
( 1 ) THIS Rule is directed against order No. 56 dated February 2, 1971, passed by the learned Munsif, Second Court, Midnapur, in a proceeding under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956. By the said order the learned Munsif struck out the defence of the petitioner against delivery of possession.
( 2 ) THE opposite party filed the suit for ejectment against the petitioner on the ground of default in payment of rent and also on the ground of reasonable requirement. It was alleged by the opposite party that the petitioner failed to pay rent since September 1966. Further, it was alleged by the opposite party that the deposit of rent made by the petitioner with the Rent Controller since November, 1967 and also the deposit made by the petitioner in Court after entering appearance in the suit, were all invalid deposits. The petitioner did not make any application under Section 17 (2) of the Act.
( 3 ) THE defence of the petitioner was, that he paid rent to the husband of the opposite party upto October 1967, but no receipt was granted by him. Since November 1967, the petitioner had been depositing rent with the Rent Controller as the husband of the opposite party refused to accept rent remitted by him by postal money-order. The petitioner denied that he was a defaulter as alleged by the opposite party. The further defence of the petitioner was that there was no relationship of landlord and tenant between the opposite party and the petitioner. The case that was made out by the petitioner in his written statement was that the plaintiffs husband Bhupendra Nath Karmakar executed an agreement of tenancy describing him as the landlord of the suit premises and collected rent from the petitioner. The petitioner denied that the deposits made by him with the Rent Controller were invalid deposits,
( 4 ) THE opposite party made an application under Section 17 (3) praying for striking out the defence of the petitioner against delivery of possession. The petitioner opposed the said application by filing a petition of objection thereto. In his Section of objection, the petitioner chal-lenged the ownership of the opposite party in respect of the suit premises and denied the relationship of landlord and tenant between the opposite party and the petitioner. The petitioner also denied that he was a defaulter in payment of rent as alleged by the opposite party.
( 5 ) AT the hearing of the application under Section 17 (3), the opposite party examined her husband Bhupendra Nath Karmakar. Bhupendra Nath Karmakar in his evidence admitted that the written agreement was signed by him on September 22, 1963. That agreement is an agreement of tenancy and Bhupendra Nath Karmakar was described as the landlord. The witness further stated that there was no other agreement except the said agreement which he signed.
( 6 ) THE learned Munsif came to the findings that the petitioner was a defaulter in payment of rent and that the deposits made by the petitioner with the Rent Controller were invalid deposits. Upon these findings, the learned Munsif struck out the defence of the petitioner against delivery of possession. The learned Munsif was of the view that the plea of absence of relationship of landlord and tenant between the parties could not be agitated by the petitioner in the proceeding under Section 17 (3) inasmuch as the petitioner did not raise that defence by an application under Section 17 (2) of the Act
( 7 ) THE only point that was argued by Mr. Ghosh, the learned Advocate for the petitioner is, that the learned Munsif should have considered the defence of the petitioner that there was no relationship of landlord and tenant between the opposite party and the petitioner. It has been already stated that the petitioner has specifically taken that defence in his written statement. In the petition of objection to the application under Section 17 (3), the petitioner has also taken that defence by way of objection
