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High Court Of Calcutta
Monjula Bose
KRISHNA KUMAR DAMANI - Appellant
Versus
RAMNARAIN AGARWAL - Respondent
Matter 389 Of 1982
Decided On : 09/13/1983
WEST BENGAL PREMISES TENANCY ACT, 1956 - SECTION 20 - CIVIL PROCEDURE CODE, 1908 - SECTION 24 - LETTERS PATENT, 1865 - CLAUSE 13 - HIGH COURT - JURISDICTION - TRANSFER OF SUIT - EVICTION PROCEEDINGS - COMMON QUESTION - BALANCE OF CONVENIENCE - Held, the High Court has jurisdiction to transfer and/or withdraw a suit to itself under Section 24 of the Code of Civil Procedure, 1908 and Clause 13 of the Letters Patent, 1865, notwithstanding Section 20 of the West Bengal Premises Tenancy Act, 1956. The jurisdiction of the High Court to transfer and/or withdraw a suit to itself is not destroyed by Section 20 of the West Bengal Premises Tenancy Act, 1956 read with the First Schedule thereto.
Fact of the Case:
The petitioner instituted a suit in the High Court for specific performance of an agreement for sale in respect of a flat and garage. The respondent, who was the landlord of the flat, instituted an eviction suit against the petitioner in the Alipore Court on the ground of default in payment of rent and reasonable requirement for his own use and occupation. The petitioner filed an application in the High Court under Clause 13 of the Letters Patent, 1865 and Section 24 of the Code of Civil Procedure, 1908 seeking withdrawal of the eviction proceedings from the Alipore Court to the High Court for being tried subsequently to the disposal of his prior suit pending in the High Court. The respondent contended that the High Court had no jurisdiction to transfer and/or withdraw the eviction proceedings to itself by reason of Section 20 of the West Bengal Premises Tenancy Act, 1956 read with the First Schedule thereto.
Finding of the Court:
The High Court held that the jurisdiction of the High Court to transfer and/or withdraw a suit to itself under Section 24 of the Code of Civil Procedure, 1908 and Clause 13 of the Letters Patent, 1865, is not destroyed by Section 20 of the West Bengal Premises Tenancy Act, 1956 read with the First Schedule thereto. The court further held that the main question to be adjudicated in both the suits was a common one, namely, the right of the tenant to remain in possession, and the cause of action of the plaintiff in his prior suit would necessarily form part of his defence in the eviction proceedings. The court also held that the balance of convenience lay in having the eviction proceedings heard by the High Court.
Issues: Whether the High Court has jurisdiction to transfer and/or withdraw a suit to itself under Section 24 of the Code of Civil Procedure, 1908 and Clause 13 of the Letters Patent, 1865, notwithstanding Section 20 of the West Bengal Premises Tenancy Act, 1956.
Ratio Decidendi: The court held that the jurisdiction of the High Court to transfer and/or withdraw a suit to itself under Section 24 of the Code of Civil Procedure, 1908 and Clause 13 of the Letters Patent, 1865, is not destroyed by Section 20 of the West Bengal Premises Tenancy Act, 1956 read with the First Schedule thereto. The court relied on the following principles: * Section 20 of the West Bengal Premises Tenancy Act, 1956 read with the First Schedule thereof merely prescribe the courts within whose jurisdiction a suit for possession by a landlord against the tenant shall lie and/or be instituted and is not at all an embargo on the special jurisdiction conferred upon the High Court and/or district court under Section 24 of the Code of Civil Procedure, 1908 to withdraw to itself and thereafter to try and dispose of such suit or proceeding which follows as a matter of course once such suit or proceeding is withdrawn to itself. * The power of transfer and/or withdrawal recognised in the statute is thus not at all abrogated and in the court's judgment the vested right to continue an action in a competent court of jurisdiction in which it was instituted is subject to the power of transfer and/ or withdrawal given to the High Court and district court by Section 24 of the Code of Civil Procedure, 1908.
Final Decision: The High Court held that the petitioner was entitled to succeed and made the Rule Nisi absolute. There was an order in terms of prayers (c) and (d). The applicant was entitled to costs.
( 1 ) THIS application under Clause 13 of the Letters Patent, 1865 and Section 24 of the Code of Civil Procedure, 1908 seeks, inter alia, withdrawal of Title Suit No. 60 of 1982 (Shri R. N. Agarwal v. Shri Krishna Kumar Agar-wal) from the Court of 3rd Subordinate Judge. Alipore, for being tried subse-quent to the disposal of the petitioner's prior suit being No. 51 of 1982 (Krishna Kumar Agarwal v. Ramnarain Agarwal and Ashoka Housing Corporation) now pending for disposal in the Original Side of this Court.
( 2 ) IN the earlier suit being No. 51 of 1982 instituted in this Court on January 28, 1982 the plaintiff sought the following reliefs. (a) A declaration that the plaintiff is a nominee of the first defendant for the purchase of Flat No. 8b and Garage No. 8b at Ashoka at 111. Southern Avenue. Calcutta, more fully described in Annexure "a" to the plaint: (b) a decree for specific performance of agreements for sale dated October 10, 1975 and May 13, 1977. entered into between the first defendant and the second defendant by executing and registering an appropriate conveyance in respect of the said premises in favour of the plaintiff as the nominee of the first defendant: (c) in the alternative, an appropriate conveyance to be executed and registered by the second defendant in favour of the first defendant in respect of the said premises and the first defendant be directed to execute and register an appropriate conveyance in respect thereof in favour of the plaintiff in specific performance of the Agreement for Sale between the plaintiff and the first defendant entered into on or about May 23, 1980: (d) attachment: (e) receiver; (f) injunction; (g) costs: and (h) further and/or other reliefs.
( 3 ) IT appears that by a letter dated February 1, 1982 the Respondent No. 1 (plaintiff in the Alipore proceedings) was intimated of the filing of the aforesaid suit and thereafter on March 20, 1982 as absolute owner of the self-same suit premises he caused Title Suit No. 60 of 1982 to be instituted in the Court of the third Subordinate Judge, Alipore, inter alia, for eviction of the petitioner both on the ground of default in payment of rent, and reasonable requirement of the landlord for his own use and occupation and accordingly, sought a decree for 'khas' possession and mesne profits proceedings on the basis that the defendant. Krishna Kumar Damani (plaintiff herein) was inducted by him as a tenant in the suit premises.
( 4 ) FROM a perusal of the allegations in the High Court Suit No. 51 of 1982 it appears that the plaintiffs con- tentions, inter alia, are that Flat No. 8b of the suit premises and a garage thereat were agreed to be sold by the Defendant No. 2. owner, to the Defendant No. 1 in respect of which agreement the total consideration money of Rs. 1,22,715 has been pain and possession obtained by the first defendant though no conveyance in favour of the first defendant and/or his nominee has vet been executed by the Defendant No. 2.
( 5 ) THE plaintiff's further case is that on May 23, 1980 the defendant No. 1 agreed to sell to the plaintiff the said flat and garage in the plaintiff's occupation as tenant and the entire consideration amount of Rs. 2,48,169 payable therefor received by the defendant No. 1. As such, he claimed to be in possession of the suit premises both as tenant and also in part performance of the agreement for sale in his favour, in respect of which the suit for specific Performance is filed.
( 6 ) IT is his further case in the Plaint that the first defendant by his letter of January 23, 1980. addressed to the defendant No. 2 with a copy thereof forwarded to the plaintiff, called upon the second defendant to formally convey the premises to him by executing and registering an appropriate deed of conveyance in his favour, which has not vet been complied with. That with intent to avoid duplication of the necessary conveyance the first defendant nominated the plaintiff a. s the purchaser
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