In the High Court at Calcutta

Civil Appellate Jurisdiction

Appellate Side

The Hon’ble Justice Sabyasachi Bhattacharyya

And

The Hon’ble Justice Uday Kumar

F.M.A. No. 800 of 2024

Syed Khawaja Moin and Another

Vs.

Md. Safi Alam

For the appellants : Mr. Sounak Bhattacharya,

Ms. Sreeparna Ghosh, Mr. Anirban Saba Roy

For the respondent : Mr. Anirban Roy,

Mr. Ashim Kumar Roy,

Mr. Abid Jamal

Heard on : 07.08.2025, 12.08.2025

& 18.08.2025

Reserved on : 18.08.2025 Judgment on : 26.08.2025

Sabyasachi Bhattacharyya, J.:-

1. The present appeal arises out of an order of remand. The

plaintiffs/appellants filed a suit for eviction of the defendant/respondent under Section 6 of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as “the 1997 Act”) on the grounds of default in payment of rent, reasonable requirement and nuisance and annoyance. During pendency of the suit, the defendant/respondent did not file any application under Section 7(1) or Section 7(2) of the 1997 Act. The learned Trial Judge framed several

issues and decided all of those in her final judgment, granting a decree of eviction on the grounds of reasonable requirement as well as default. The learned Trial Judge, notably, also decided the issue of landlord- tenant relationship in favour of the plaintiffs/appellants. While doing so, it was held that the defendant/respondent have failed to prove their plea that the property was a Thika Tenancy.

2. The defendant/respondent preferred an appeal against the same, which was ultimately decided by the learned First Appellate Court by holding that non-filing of an application under Section 7(2) of the 1997 Act, when the landlord-tenant relationship was not admitted by the defendant, was not fatal and remanding the matter to the Trial Court for a fresh adjudication by framing all issues, including the issue of maintainability as well as other issues.

3. Challenging the same, the plaintiffs/appellants have preferred the present appeal.

4. Learned counsel for the plaintiffs/appellants argues that in view of the learned Trial Judge having held in her judgment that the defence of the defendant/respondent was liable to struck out in view of non- compliance of Sections 7(1) and 7(2), the written statement of the defendant could not be looked into. Since the question as to whether the suit property is a Thika Tenancy was raised in the written statement, upon striking out the defence of the defendant, such pleading could not be considered at all. As a consequence, it is argued, no dispute could be deemed to have been raised in the eye of law as to the property being a Thika Tenancy and, as such, the learned First Appellate Court erred in law in remanding the matter, inter alia to decide the issue of maintainability and other issues, instead of dismissing the title appeal of the defendant/respondent.

5. Learned counsel for the appellant cites an unreported judgment of the Supreme Court in the matter of Seventh Day Adventist Senior Secondary School – versus – Ismat Ahmed and Others, in support of the proposition that the deposit of rent and filing of an application, under Section 7(1) and/or Section 7(2) of the 1997 Act, withing the statutory time limit, is mandatory. In default, the benefit of the proviso to sub-

section (2) of Section 7 cannot be availed of.

6. Learned counsel next cites an unreported judgement rendered by a learned Single Judge of this Court in Deep Chand Hirawat – versus – Smt. Kamala Devi Chowdhary & Ors. [C.O. 3681 of 2022], where the learned Single Judge observed that deposit of admitted arrear rents along with ten per cent statutory interest is a mandatory pre-condition to filing an application under Section 7(2) of the 1997 Act. Upon such deposit, the tenant was enjoined by law to continue to pay to the landlord or deposit with the Civil Judge a sum equivalent to the rent at that rate, month by month within the 15^th day of each succeeding month. Without depositing the admitted arrears as per the time stipulated in the said provis