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2008 Supreme(Cal) 491
High Court of Judicature at Calcutta
TAPAS KUMAR GIRI
Ashok Kumar Agarwal
Versus
Neena Chand
Decided On : 07-05-2008
For the Appearing Parties:S.N. Datta, Jiban Ratan Chatterjee, Raj Lakshmi Dev, Debjit Mukherjee, Saroj Poddar, U. Datta, Advocates.
The court held that it was not desirable to observe any findings regarding the submission of Learned Advocate Mr. Chatterjee in respect of defence strike out under Section 17 (3) of the W. B. P. T. Act.
Headnote:
LANDLORD TENANT DISPUTE - RELATIONSHIP - W. B. P. T. ACT, 1956 - SECTION 17 (2) (2A) (B) - COURT'S ORDER FOR DEPOSIT OF ARREAR RENTS - REVISION - ISSUE OF RELATIONSHIP LEFT OPEN FOR DETERMINATION AT TRIAL - COURT'S ORDER MODIFIED - ARREAR RENTS TO BE DEPOSITED IN 5 INSTALLMENTS - LANDLORD NOT ENTITLED TO WITHDRAW ANY DEPOSIT RENT TILL DECISION ON RELATIONSHIP.
Fact of the Case:
The petitioner, a tenant, challenged an order directing him to deposit arrear rents with interest in 5 installments, in a suit for eviction filed by the opposite party/plaintiff on the ground of default in payment of rent. The petitioner admitted being a tenant under the plaintiff's father but disputed the tenancy with the plaintiff.
Finding of the Court:
The court held that the order of the lower court was not illegal as the petitioner was a defaulter in payment of rent and the relationship of landlord and tenant was kept open for determination at the time of trial.
Issues: 1. Whether the lower court erred in directing the petitioner to deposit arrear rents without determining the relationship of landlord and tenant? 2. Whether the petitioner should be allowed to pay the arrears in 30 installments instead of 5?
Ratio Decidendi: 1. The court relied on the decision in Synthetic Plywood Industries (P) Ltd. v. Smt. Manjulika Bhaduri and Ors. (1998 (1) CHN 387), which held that it was desirable for the court to determine the relationship between the parties at the threshold to avoid future complications. 2. However, in the present case, the court noted that the order was passed ex parte as the opposite party did not contest the application under Section 17 (2) (2a) (b) of the W. B. P. T. Act, 1956, and the issue of relationship was kept open for determination at the time of trial.
Final Decision: The court modified the lower court's order, extending the deadline for the first installment to 15.5.2008 and directing the petitioner to deposit the subsequent installments within the 15th day of each succeeding month. The court also held that the opposite party/landlord was not entitled to withdraw any deposit rent from the court till the decision on the relationship between the plaintiff and the defendant as landlord and tenant in respect of the suit premises.
TAPAS KUMAR GIRI, J.
1. CHALLENGING the order dated 24. 4. 2006 passed by Learned Judge, IV Bench of the Small Causes Court at Calcutta in connection with Ejectment Suit No. 351 of 2003, this Revisional Application under Article 227 of the Constitution of India has been preferred by the petitioner / defendant tenant.
2. GRIEVANCES of the petitioner as ventilated in the instant application may briefly be stated as follows;-That the opposite party / plaintiff instituted a suit being Ejectment Suit No. 414 of 1990 before the Learned Judge, 9th Bench City Civil Court at Calcutta against the petitioner/defendant tenant inter alia, praying for eviction in respect of the suit premises as described in the plaint on the ground of default since September, 1987. The petitioner duly entered appearance through his learned Advocate and filed an application under Section 17 (2) (2a) (b) of the W. B. P. T. Act, 1956 and admitted as defaulter in payment of rent but disputed the tenancy with the plaintiff as the landlord and tenant. He became the tenant under one Tribhuban Chand, since deceased as his landlord, the father of the plaintiff.
3. THE above suit was subsequently transferred before the Small Causes Court at calcutta and it has been renumbered as Ejectment Suit No. 351 of 2003.
4. LEARNED Judge 4th Court, Small Causes Court disposed of the application under section 17 (2) (2a) (b) of the W. B. P. T. , Act 1956 as "exparte" with direction to deposit arrear rents with interest in five instalments and the first instalment being payable within 15. 6. 2006 and the subsequent instalments within 15 day of each succeeding month and the current rent should be deposited simultaneously.
5. BEING aggrieved by and dissatisfied with the above order dated 24. 4. 2006, the petitioner approached this court with the said application under Article 227 of the constitution of India.
6. MR. Jiban Ratan Chatterjee learned Counsel on behalf of the petitioner contended that without determination the relationship in between the petitioner and the opposite party as tenant and landlord the Learned Court below erred to direct the opposite party to deposit the arrear rents with interest and as such the order of learned Court below is liable to be set aside. Learned Advocate cited case law reported in 1998 (1) CHN387 (Synthetic Plywood Industries (P) Ltd. vs.-Smt. Manjulika Bhaduri and Ors.)
7. MR. Chatterjee Learned Counsel also contended that the present financial position of the petitioner is not good as such the petitioner may be permitted at least 30 easy instalments to deposit the arrears of rents instead of 5 (five) instalments.
8. MR. U. Dutta Learned Advocate on behalf of the opposite party contended that there is no illegality in the order of Learned Judge Court below and the petitioner was the tenant under the father of the opposite party and the relationship of the petitioner and the opposite party is kept open and it should be determined at the time of trial of the suit. As such the present revisional application is liable to be dismissed.
9. BEFORE considering the submission of Learned Advocates of both sides it is necessary to mention the relevant order dated 24. 4. 2006 passed by Learned Judge 4th court Small Causes Court at Calcutta. It states "the defendants files hazira. The petitioner under Section 17 (2), 17 (2a) and (b) of the W. B. P. T. , Act is taken up for ex parte hearing and order. Heard Learned Advocate for the defendant and perused the instant verified petition along with the record. Considered. It transpires on perusal of the record that there is dispute between the parties regarding relationship of landlord and tenant. This dispute is kept open at the stage and shall be determined at the time of trial of the suit. The plaintiff has alleged that the defendant is defaulter in payment rent since September 1987. There is no document on record that suggests that the defendant has paid any rent for or after September 1987.
