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2017 Supreme(Cal) 556
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
SANJIB BANERJEE, J.
Jiten Joyder - Petitioner
Versus
Urmila Jaiswal - Respondent
CO No. 2448 of 2016
Decided On : 11-12-2017
Advocate Appeared:
Hiranmay Bhattacharyya, Debanjan Dan, Bhudeb Bhattacharyya, Chandrani Ganguly
A defendant in an eviction suit, disputing the legal relationship with the plaintiff, should be given an opportunity to contest the plaintiff’s application under Section 7(3) of the West Bengal Premises Tenancy Act, 1997.
Headnote:
Eviction Suit - West Bengal Premises Tenancy Act, 1997 - Section 7(1), 7(2), 7(3)
Fact of the Case:
The defendant in an eviction suit contested the striking out of his defense under Section 7(3) of the West Bengal Premises Tenancy Act, 1997, claiming he was not obliged to apply under Section 7(2) as he did not perceive himself as a tenant under the plaintiff.
Finding of the Court:
The court found that the defendant should have been afforded a chance to contest the plaintiff’s application under Section 7(3) and adjudicate on the relationship between the parties and the defendant's status qua the suit premises.
Issues: The key issue was whether the defendant, who contested his status as a tenant, was obligated to apply under Section 7(2) and whether the trial court erred in not adjudicating on the relationship between the parties.
Ratio Decidendi: The court held that a defendant in an eviction suit, questioning the legal relationship between the parties, should be given an opportunity to contest the plaintiff’s application under Section 7(3) and have the relationship adjudicated.
Final Decision: The court allowed the petition, set aside the order, and restored the plaintiff’s application under Section 7(3) to the trial Judge with a request to adjudicate on the relationship between the parties and the status of the defendant. Costs were not awarded.
The grievance of the petitioning defendant in an eviction suit is that his defence has been struck out merely on the ground that he did not apply under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 prior to the plaintiff invoking Section 7(3) thereof.
2. The key to the issue is in the choice of the relevant expressions by the legislature. Sections 7(1) and 7(2) do not refer to a plaintiff or a defendant but refer to a landlord and a tenant. The obligation to do whatever is required to be done under such provision is of a tenant. If a defendant in an eviction suit is not a tenant, the obligation may not fasten to such defendant. Likewise, if the plaintiff is not the landlord, the provisions may not be applicable in the strictest sense.
3. Section 7(1)(a) of the Act obliges a tenant, subject to the provision of sub-section (2), to pay to the landlord or deposit with the court (Civil Judge) “all arrears of rent, calculated at the rate at which it was last paid and upto the end of the month previous to that in which the payment is made together with interest at the rate of ten per cent per annum.” Clause (b) of Section 7(1) of the Act requires such payment or deposit to be made within one month of the service of the summons “on the tenant” or within one month of his appearance. Clause (c) obliges the “tenant” to thereafter continue to pay to the “landlord” or deposit with the court month by month by the 15th of each succeeding month, a sum equivalent to the rent at that rate. The rate, as is obvious, is relatable to clause (a).
4. In its opening limb, Section 7(2) of the Act mandates that “If in any suit referred to in sub-section (1), there is any dispute as to the amount of the rent payable by the tenant, the tenant shall, within the time specified in that sub-section, deposit with the Civil Judge the amount admitted by him to be due from him together with an application for determination of the rent payable”. Again, the word “tenant” has been used in preference to “defendant”; and, the application that a tenant is obliged to file is if there is “any dispute as to the amount of rent payable”.
5. There may be a dispute between the landlord-plaintiff and the defendant-tenant as to the rate of rent or as to the quantum of unpaid rent. There may also be a dispute as to whether the plaintiff is the landlord qua the suit premises or the defendant is the tenant in respect of such premises or even whether the defendant is a tenant under the plaintiff.
6. If the plaintiff is the landlord of the suit premises and the defendant is the tenant in respect thereof, any dispute that the tenant may perceive as to the rate of rent or quantum of rent due to the landlord has to be made the subject-matter of an application under Section 7(2) of the Act and an adjudication in such regard invited. It is also possible that the plaintiff is not the landlord, or the defendant does not accept that the plaintiff is the landlord of the suit premises; or the defendant is not a tenant in respect of the suit premises. In such a situation the defendant may apply under Section 7(2) of the Act inviting an adjudication on the status of the parties qua the suit premises or, in other words, on the legal relationship between the parties. However, a defendant in an eviction suit filed under the said Act who does not perceive himself to be a tenant is not obliged under Section 7(2) of the Act to carry an application to the court in seisin of the suit for an adjudication on the status of the parties to the suit or the legal relationship between the plaintiff and the defendant. Merely because a person files a suit for eviction citing some of the grounds available under Section 6 of the Act, it does not imply that the plaintiff has to be presumed to be the landlord in respect of the suit premises or that the defendant is undeniably the tenant under the plaintiff.
7. On the face of it, Section 7(2) of the Act does not speak of an adjudication on the status
