🖨️ Print / Download PDF

Ashok Kumar Singh Vs Dilip Kumar Shaw

Case No: C.O. No. 4397 of 2005

Date of Decision: Aug. 23, 2010

Acts Referred: Constitution of India, 1950 — Article 227#West Bengal Premises Tenancy Act, 1956 — Section 17(2), 17(2A), 17(B)

Hon'ble Judges: Tarun Kumar Gupta, J

Bench: Single Bench

Advocate: Sabyasachi Bhattacharyya and Debdutta Basu, for the Appellant;Suchit Kumar Banerjee, Sujata Adhikary and Indranil Banerjee, for the Respondent

Final Decision: Dismissed

Translate: English | हिन्दी | தமிழ் | తెలుగు | ಕನ್ನಡ | मराठी

Judgement

Tarun Kumar Gupta, J.@mdashThis is an application under Article 227 of the Constitution of India filed by the petitioner/tenant challenging order

No. 87 dated 10.08.2005 passed by Civil Judge (Junior Division), 4th Court at Alipore in Title Suit No. 23 of 1995. By the impugned order

learned Trial Court disposed of the petition u/s 17(2) (2A) (B) of W.B.P.T. Act by adjudicating that defendant was a tenant under O.P./Plaintiff,

and that rate of monthly rent was Rs. 30/- per month, and that defendant was defaulter in payment of rents from January, 1992 to June, 2005 and

was required to deposit said total arrear rent together with interest in five installments.

2. Being aggrieved with said order the instant revisional application was filed alleging inter alia that the predecessor in interest of the

petitioner/defendant namely Brahmadeb Singh was the original tenant under Jatindra Nath Bhaduri in respect of the said premises at a rental of Rs.

35/- per month and that after death of Jatindra Nath Bhaduri his heir and legal representatives Sri Kalyan Kumar Bhaduri used to realize rent and

that after demise of original tenant Brahmadeb Singh on 31.07.1990 his heirs and legal representatives including present petitioner became tenants

in common and that on or about 20.12.1991 Kalyan Kumar Bhaduri issued a letter of attornment to the petitioner requesting him to attorn his

tenancy under one Smt. Kamala Das with a direction to pay rent to her and that thereafter the tenants received one letter from one Mrs. Krishna

Saha directing them to pay rent to plaintiff/respondent Dilip Kumar Shaw. That on 01.02.1992 the plaintiff claimed to have purchased a part of the

building and that in view of dispute of ownership the petitioner tenant could not decide whom to pay rent and that later on O.P./Plaintiff has filed

the suit for ejectment being Title Suit No. 23 of 1995 and that present petitioner and his brother appeared in the said suit, filed written statement

and also filed an application u/s 17(2) (2A) (B) for determining as to whether plaintiff was the landlord or not. It was also averred in the said

petition that though the rate of rent was Rs. 44/- per month but plaintiff claimed the rent to be Rs. 30/- per month and there was also forcible

eviction from a portion of tenancy in September, 1996 and hence there should have been abatement of rent for such dispossession from some

portion of tenancy and determination of the same by the Court and also for installments for payment of arrear rents, if any.

3. During hearing learned Advocate Mr. Sabyasachi Bhattacharyya for the petitioner/defendant has submitted that learned Trial Court referred to

some stray lines of the petitioner/defendant/tenant in his deposition and decided O.P./plaintiff as his landlord on admission and that rate of rent was

decided to be Rs. 30/- per month without any justification and that all rents, deposited by defendant/tenant in the Rent Control and/or in Court at

the rate of Rs. 44/- per month, were declared invalid on account of non-payment of rent from January, 1992 to June, 1993 and asked

defendant/tenant to pay entire rent from January, 1992 to June, 2005 together with interest in five equal monthly installments.

4. Learned Advocate for the petitioner/defendant/tenant has submitted that the impugned order of learned Trial Court was not sustainable in law as

he did not spell out the reasons for holding monthly rent at the rate of Rs. 30/- per month and also for holding defendant/tenant defaulter since

January, 1992 though the period of default, if any, was only from January, 1992 to June, 1993.

5. Learned Advocate Mr. Suchit Kumar Banerjee for the respondent/O.P./Landlord, on the other hand, has submitted that the order u/s 17(2)

was interlocutory in nature and was passed on the basis of evidence on record and that this Court should not interfere with the same merely on the

alleged ground of not being a proper order. According to him there was specific admission of the defendant/tenant in his evidence that O.P. plaintiff

was his landlord and paid rent to him. According to him, there was voluntary surrender of a portion of tenanted premises and that there was no

forcible eviction and that the rent was fixed at the rate of Rs. 30/- per month and it did not cause prejudice to anybody.

6. I have carefully considered submissions made by learned Advocates of both sides and perused the materials on record. The decision of the

Court u/s 17(2) on the question of relationship as referred by the tenant is tentative one as it is done in an interlocutory proceeding. The same was

only prima facie finding only for the purpose of said proceeding leaving it open to the Court for a final decision at the time of hearing of the suit on

framing appropriate issue. Apart from that it is not the case of the petitioner/tenant that O.P./plaintiff was not his landlord or that any other person

was his landlord.

7. Whether the portion which was taken out from the tenancy of the defendant/tenant was as per voluntary act of the parties or forceful can only be

decided at the time of trial when evidence will be adduced on this point. As there was shrinking of tenanted portion, for whatever reason, learned

Trial Court has held the rate of rent as Rs. 30/- per month. In view of the averments of the plaint I find nothing wrong in the same. Alleged wrong

calculation of total arrear amount of rent to be paid by the defendant/tenant is a question of fact, and even if there was any error that should not be

interfered by this Court exercising power under Article 227of the Constitution of India. The said power under Article 227 of the Constitution of

India should be exercised most sparingly in cases where grave injustice would be done but for interference by High Court. In view of the above

discussion I am of the opinion that the impugned order does not call for any interference under Article 227 of the Constitution of India.

8. As a result, this revisional application stands dismissed. However, I pass no order as to costs. Before I part with the record, I like to add that

defendant/tenant will be at liberty to press the question regarding landlord and tenant relationship as well as abatement of rent, if any, on the alleged

ground of forcible eviction from a part of tenancy, at the time of trial and learned Trial Court shall decide those issues on the basis of materials on

record without being influenced by the instant order of this Court.

9. Let a copy of the order be forwarded to learned Trial Court for information and necessary action.

10. Urgent xerox certified copy of this judgment be supplied to the learned Counsels of the party/parties, if applied for.

Download Judgement PDF