Tapas Kumar Giri, J.@mdashChallenging 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 u/s 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 u/s 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
7. 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.
8. 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 u/s 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. The defendant has, in fact, admitted that he has not paid any rent for the said period. As a result, it can be concluded that the defendant is defaulter in payment of rent from September 1987 till date, i.e., for 223 months @Rs.2482/- per month. The defendant should deposit the Rs. 2482/- X 223 months = Rs. 5,53,486/- plus statutory interest @ 8 1/3% amounting to Rs. 46,124/-, total amount payable being Rs. 5,99,610/-. The defendant should deposit the said amount in five equal instalments of Rs. 1,19,922/- each, the first instalment being payable within 15.6.06 and the subsequent instalments within the 15th day of each succeeding months. Current rents should be deposited simultaneously. The instant petition is accordingly disposed of ex parte without cost."
9. It is admitted by the petitioner that he was the tenant under one Tribhuban Chand, since deceased as his landlord father of the opposite party and he is the defaulter for payment of rent of the suit premises. The petitioner does not dispute the amount of monthly rent. The petitioner has urged the dispute of relationship with the plaintiff as landlord and tenant in respect of the suit premises.
10. In the reported above decision Synthetic Plywood Industries (P) Ltd., (supra) it is observed "since the question relating to the relationship between the defendant and the plaintiff was vital for bringing into operation the applicability of Section 17 (2) of the Act, it was permissible for the Court, rather desirable that it should have taken up the issues relating to such relationship at the threshold so that the parties would have been made aware of their status vis-�-vis each other, in order to avoid any future complications."
11. In the present case, the petitioner/defendant filed the application u/s 17 (2) (2A) (b) of the W.B.P.T. Act, 1956 raising the dispute of relationship as landlord and tenant. The opposite party/plaintiff did not contest the above application and as such Learned Judge of the Court below passed the order dated 24.4.2006 as "exparte" with findings that the said issue is kept open at this stage and shall be determined at the time of trial of the suit. If the opposite party/landlord contested in the said application then the question of determination of the dispute of relationship as landlord and tenant has arisen as per decision of Synthetic Plywood Industries (P) Ltd., (supra). But in the present case, it was decided as ''exparte''. However, Learned Court below kept open that issue for determination at the time of trial.
12. The other points that were urged by Learned Advocate Mr. Chatterjee are taken up for consideration regarding the defence strike out of the defendant/tenant u/s 17(3) of the W.B.P.T. Act 1956 if the defendant failed to deposit either any arrear rents or the plaintiff withdrew the deposit of rents from the Court when there is the dispute of relationship of the petitioner and the opposite party as tenant and landlord.
13. The present order dated 24.4.2006 was passed in respect of the application u/s 17 (2) (2A) (b) of the W.B.P.T. Act, 1956. Therefore, it is not desirable to observe any findings regarding the submission of Learned Advocate Mr. Chatterjee in respect of defence strike out u/s 17(3) of the W.B.P.T. Act.
14. Regarding the withdrawal of any deposit of rents from the Court by the plaintiff/landlord it may be observed that so long the dispute of the relationship of landlord and tenant in between the plaintiff and defendant is determined the plaintiff is not entitled to withdraw the deposit of any rent from the Court as Learned Judge Court below categorically passed the order that the said dispute is kept open at this stage and shall be determined at the time of trial of the suit.
15. The last point that awaits for consideration is regarding the payment of arrears of rent. Due to financial stringencies, the petitioner has prayed for payment of arrear of rents at least 30 (thirty) instalments instead of 5 (five) instalments. The said submission is not accepted as the opposite party being the tenant of the suit premises is bound to deposit the arrear rents by 5 (five) instalments as per order of the Learned Court below.
16. In the above premises, the order dated 24.4.2006 passed by the Learned Judge IV Bench of the Small Causes Court at Calcutta is modified accordingly. The petitioner/defendant being the defaulter in payment of rent from September, 1987 shall deposit the first instalment within 15.5.2008 instead of 15.6.2006 and the subsequent instalments within the 15th day of each succeeding months and the current rents as per order of Learned Judge of the Court below and the opposite party/landlord is not entitled to withdraw any deposit rent from the learned Court below till the decision of the relationship in between the plaintiff and the defendant as landlord and tenant in respect of the suit premises.
17. The Revisional Application C.O. No. 1849 of 2006 is disposed of accordingly.
18. There is no order as to cost.
19. Urgent xerox certified copy be supplied to the parties, if applied for.
