Asim Kumar Mondal, J.@mdashThis is an application under Article 227 of the Constitution of India has been preferred challenging the legality and propriety the order No. 194 dated December 7th, 2006 passed by learned Civil Judge (Junior Division), 1st Court, Chandernagore in Title Suit No. 155 of 1984. The opposite party as plaintiff filed a suit for ejectment against the defendant/petitioner on ground of defaulter, nuisance and annoyance and for challenging the nature and character of the suit premises deliberately violating all laws and for reasonable requirement for own use and occupation and for starting a business and also for building and rebuilding and for major additions and alternations.
2. The petitioner/the defendant has also filed as plaintiff a suit for declaration and injunction against the opposite party herein which was registered as Title Suit No. 125 of 1984 for a declaration that the plaintiff has got non-agricultural tenancy right under the West Bengal Non-Agricultural Tenancy Act in B(1) and for declaration that the premises standing in the schedule is constructed by the plaintiff not by the defendant and also for declaration that the defendant is not the owner of the premises of the schedule land. The petitioner/defendant in title suit No. 155 of 1984 filed an application u/s 17(1), 17(2) and 17(2A) of the West Bengal Premises Tenancy Act for permission to deposit the rent and for determination of relationship of landlord and tenant between the plaintiff and the defendant and also to determine the rate of rent and arrear of rents, if any, and for easy instalment to pay the arrears of rent. In the said petition the petitioner/defendant contended that the petitioner is not a tenant under the plaintiff/opposite party and he does not occupy the premises described in the ''A'' schedule to the plaintiff as a house tenant as monthly rental of Rs. 70/- and he never occupied the suit premises as a monthly rent of Rs. 112/-. It is further contended that the defendant/petitioner himself is the owner of the premises in suit and he has taken lease of the land along with adjoining land at monthly rent of Rs. 12/- according to English calendar month in non-agricultural tenancy right of a agreement of lease dated December 10th, 1972. It is the further case of the petitioner/defendant that the learned Trial Court ordered for analogous trial of both the suits.
3. It is the further case of the petitioner/defendant that learned trial court fix on November 20th, 2006 for argument of petition u/s 17(20 and 17(2A) of the West Bengal Premises Tenancy Act of the Eviction suit and finally the learned Trial Court fixed on December 7th, 2006 for passing an order in respect of the petition u/s 17(2) of the West Bengal Premises Tenancy Act and passed the impugned order No. 194 dated December 7th, 2006 without going through its previous order and held that the defendant/petitioner is a defaulter since Pous 1390 B.S. to 1413 Agrahayan and directed to make payment of Rs. 18,582/- to the plaintiff by way of two instalments of Rs. 9,582/-.
4. Being aggrieved by and dissatisfied with the said order the petitioner moved a revisional application u/s 115A of the CPC before the learned Additional District Judge, 2nd Court, Hooghly being Civil Revision Case No. 4 of 2007. The said revisional application was ultimately dismissed by the learned district Judge, 9th Court, Hooghly vide order No. 36 dated February 18th, 2012 against the order passed by the learned Additional District Judge, 2nd Court, Hooghly vide order No. 36 dated February 18th, 2012 the petitioner has preferred the present revisional application under Article 227 of the Constitution of India on the grounds that the learned Trial court acted illegally and with material irregularity holding that relationship of the tenant and landlord existed between the parties and the defendant''s claim of being a non-agricultural tenant does not call for any ground without considering that defendant already filed a suit for declaration that he has got non-agricultural tenancy right under the West Bengal non-agricultural Tenancy Act. Further that learned Trial Court has failed to consider that there was an order of analogous hearing and without considering the same the learned Trial Court has held that the defendant paying a monthly rent at the rate of Rs. 70/- and directed for making payment of arrear rents in two instalments.
5. Learned Advocate Mr. Amit Kumar Rakshit appears on behalf of the petitioner and submits that there is a bonafide mistake in selecting a wrong forum. The intention of the legislative is to exempt the period taken for such wrong forum and equity underlying u/s 14 of the Limitation Act, therefore, should be applied to its fullest extent. It is also submitted that in fact there is no precise rule to determine good faith. It is a matter to be decided, and its decree ascertained on facts of each case. There is no hard and fast rule as to what amounts to good faith. In the instant case the petitioner was misguided by his advocate engaged before learned Lower Court and as per his advice the petitioner preferred a revisional application u/s 115A of the Civil Procedure Code. Subsequently the petitioner came to know from the learned advocate of this Hon''ble Court the exact legal proposition of Section 115A of the CPC and came to understand that he choose wrong forum. Mr. Rakshit further submits that the order impugned is not proper as learned Trial Court did not decide the relationship of the parties. Admittedly there is another suit filed by the present petitioner against the opposite parties for declaration and also for challenging the relationship as landlord and tenant. So, the learned Trial Court ought to have considered the said issue in deciding the petition u/s 17(2) and 17(2A) of the West Bengal Premises Tenancy Act. Mr. Rakshit also submits that learned Trial Court ought to frame a preliminary issue on this point and thereafter ought to have proceeded with the suits analogously. However, Mr. Rakshit referred and relied two decisions of Hon''ble High court and Hon''ble supreme court reported in 1979(2) CLJ 297
6. Mr. Ujjal Roy and Mr. Arpa Chakraborty appear on behalf of the opposite parties and submit that there is nothing to interfere into the order impugned. Mr. Roy further submits that the instant revisional application has been filed after lapse of 5 1/2 years. The explanation as given in the petition is not satisfactory as the petitioner proceeded before learned Additional District Judge preferring a revisional application u/s 115A of the CPC challenging the impugned order knowing fully the proposition of the law. The delay as caused is due to the latches and negligence on the part of the petitioner and the explanation should not be considered as satisfactory.
7. On careful perusal of the record therein it appears to me that the petitioner filed one suit before the Civil Judge (Junior Division), First Court, Chandernagore which was registered as Title Suit No. 125 of 1984 for a decree declaring that the plaintiff/petitioner has got non-agricultural tenancy right under the West Bengal non-agricultural Tenancy Act in B(1) Schedule of the land and also for declaration that the premises standing on B(1) schedule land is constructed by the plaintiff/petitioner and not by the defendant/opposite party and also declaring that the defendant/opposite party is not the owner of the premises. The plaintiff/petitioner also claimed that he is not the Bharatia tenant.
8. On the contrary the opposite party/plaintiff filed a suit for ejectment against the defendant/petitioner in the First Court of learned Civil Judge (Junior Division) Chandernagore and the said suit was registered as Title Suit No. 155 of 1984 and the said suit was field on the ground of defaulter, nuisance and annoyance and also for changing the nature and character of the suit premises deliberately violating all laws and for reasonable requirement. There is an order in T.S. No. 155 of 1984 vide Order No. 134 dated May 26th, 2000 allowing the prayer of Mantu Charan Ghosh plaintiff/opposite party ascertaining for analogous trial of both the suits i.e. Title Suit No. 155 of 1984 and Title Suit No. 39 of 2000 (Original No. T.S. 25 of 1984). The petitioner/ opposite party filed one petition in title Suit No. 155 of 1984 u/s 17(2) of the West Bengal Premises Tenancy Act disputing the relationship of landlord and tenant as well as the amount of rent as alleged by the plaintiff/opposite party. There is some specific averments in the said petition to the effect that the petitioner/defendant himself is the owner of the premises in suit land thereto and also claimed of leasehold right of the land lying for adjoining land for a monthly rate of Rs. 12/- according to English calendar month is a non-agricultural tenancy right vide an agreement of lease dated 10.12.1972.
9. There is no reflection in the order impugned as to whether learned Trial Court in disposing of the petition u/s 17(2) of the West Bengal Premises Tenancy Act filed in T.S. No. 155 of 1984, considered the case as made out in T.S. No. 39 of 2000 by the present petitioner and as to whether learned Trial Court examined and considered the submissions evidences and documents which might have been produced in support of his case by the present petitioner. The order impugned is also silent as to the other steps/hearing in the two suits in the case of analogous hearing. Both the suits should be proceeded analogously and be finally disposed of by a common judgment. It is not clear from the order impugned whether learned Trial Court has followed the principle for analogous hearing or not.
10. Admitted fact that against the said order the petitioner moved a revisional application u/s 115A of the CPC before learned Additional District Judge at Hooghly which was decided after full-fledged hearing of the parties. In view of amendment of CPC by amendment Act of 49 of 1999, no revision would lie against any interlocutory order which does not dispose of the suit itself by the learned Trial Court before the revisional court. So, there is a clear mistake on the part of the petitioner so filed revisional application before the learned Additional District Judge at Hooghly which should have been filed under Article 227 of the Constitution of India before this Court. Now question is whether such mistake is bonafide or not. The petitioner has stated in his revisional petition that as per the advice of learned Advocate of the court below, he chose the wrong forum and pursued the same for a considerable period till the disposal of the said revisional application. The wrong conception or advice by the advocate to his client should be considered as bonafide mistake on the part of the client as he trusted his engaged advocate. In view of the ratio laid down in the judgment reported in
11. In view of above discussion and findings I have no hesitation to hold that the order impugned passed in T.S. No. 155 of 1984 vide Order No. 194 dated December 7th, 2006 suffers from illegality and impropriety and as such same is liable to be set aside.
12. Thus the revisional application is allowed without costs. The order impugned being No. 194 dated December 7th, 2006 passed in T.S. No. 155 of 1984 by Civil Judge (Junior Division) First court, at Chandernagore is hereby set aside. Learned Trial Court is directed to proceed with the case in No. T.S. No. 155 of 1984 and T.S. No. 39 of 2000 analogously after framing an preliminary issue as to the relationship of landlord and tenant after giving the opportunities to both the parties to adduce their evidences as per the procedure and law. He is to consider the materials available on record and come to the findings as to the relationship of landlord and tenant and determine the amount of rent and arrear, if any. In view of the order to be passed in T.S. No. 155 of 1984 by the learned Trial Court is also to pass necessary order in T.S. No. 39 of 2000 pending before him. Urgent Photostat Certified Copy of this order if applied for be given to the parties on priority basis.
