Point of Law:
Whether there is a clear admission or not cannot be decided on the basis of a judicial precedent. The dispute with regard to the extent of the tenancy of the defendants being relevant in deciding the dispute between the parties, the said issue needs to be resolved before a judgment in the suit is passed and such dispute can only be resolved in course of the trial of the suit on the basis of the evidences to be adduced by the parties.

JUDGMENT :

Biswajit Basu, J.

1. The revisional application under Article 227 of the Constitution of India is at the instance of the plaintiff in a suit for eviction being Title Suit No. 78 of 2017 and is directed against the part of the Order no. 17 dated April 20, 2018 passed by the learned Civil Judge (Senior Division) at Serampore, District-Hooghly in the said suit. The learned Trial Judge by the said order dated April 20, 2018 has disposed of three applications, out of which two applications were filed by the defendants and one was filed by the plaintiff. The applications filed by the defendants were for amendment of written statement and for an order of injunction which have been allowed by one part of the said order but the application filed by the plaintiff under Order XII Rule 6 of the Code for judgment on admission in the said suit has been dismissed by the learned Trial Judge by the other part of the said order. The plaintiff is challenging the part of the said order whereby her application for judgment on admission has been dismissed.

2. Mr. Saptangshu Basu, learned senior advocate appearing on behalf of the petitioner submits that the rate of rent of the tenancy of the defendants is more than Rs. 3000/- per month, as such the provision of the West Bengal Premises Tenancy Act,1997 (hereinafter referred to as ‘the said Act of 1997’) by virtue of Section 3(e)(ii) thereof is not applicable in respect of the suit flat, consequently the tenancy of the defendants is not protected by the said Act of 1997. He further submits that to evict the defendants from the suit flat the plaintiff is required to prove two things; i.e. the relationship of landlord and tenants between her and the defendants and the service of notice determining the tenancy under Section 106 of the Transfer of Property Act, 1882(hereinafter referred to as the ‘said Act of 1882’). Mr. Basu to buttress his said contention places reliance on the decision of the Hon’ble Supreme Court in the case of PAYAL VISION LIMITED vs. RADHIKA CHOUDHARY reported in (2012) 11 SCC 405.

3. Mr. Basu proceeds to place the facts of the present case to demonstrate that the aforementioned two requirements laid down in the decision of PAYAL VISION (supra) have been satisfied. He contends that the defendants, upon admission of their relationship with the plaintiff as tenants and landlord, resorted to the Section 7(1) and Section 7(2) of the said Act of 1997 seeking permission of the Court to deposit current and arrear rent in the suit to the credit of the plaintiff. The said applications although were dismissed as not maintainable but admission made therein regarding the relationship between the parties remain, satisfying the first requirement of judgment on admission in the said suit.He then submits that the averments of paragraph 4 of the plaint that the notice under Section 106 of the Transfer of Property Act, 1882 determining the tenancy was received by the defendants on March 09, 2017, the said averments since have not been denied by the defendants in their written statement, the second requirement for such a judgment in the said suit is also satisfied. Therefore, according to Mr. Basu, the learned Trial Judge has committed a jurisdictional error in not allowing the application of the petitioner under Order XII Rule 6 of the Code.

4. Mr. Amal Baran Chatterjee, learned senior advocate appearing on behalf of the opposite parties in response to the aforesaid submission of Mr. Basu, submits that the Court under Order XII Rule 6 of the Code exercises a discretionary power which cannot be claimed as a matter of right; he takes support of his such submission from the decision of the Hon’ble Supreme Court in the case of S.M ASIF vs. VIRENDER KUMAR BAJAJ reported in (2015)9 SCC 287, according to him, the learned Trial Judge has not exercised his said discretion in an arbitrary manner in dismissing the said application for judgment on admission warranting interference of this Court in exerci