Niren Mitra, J.@mdashThe opposite party filed Ejectment Suit No. 257 of 1982 against the petitioner for his eviction from the suit premises in the
City Civil Court at Calcutta on the ground of default and for the act of nuisance and annoyance. The petitioner contested the said suit by filing
written statement denying and disputing the allegations as made in the plaint and also filed applications under Sections 17(2) and 17(2A) (b) of the
West Bengal Premises Tenancy Act, 1956, raising therein inter alia the dispute regarding relationship of landlord and tenant between the parties.
Before the disposal of the said applications under Sections 17(2) and 17(2A)(b) the said suit was decreed ex parte in June 1982 and the petitioner
was dispossessed in February, 1983 with the help of the police from the disputed premises. Subsequently, on an application under Order IX Rule
13 of the CPC filed by the petitioner for setting aside the said-ex-parte decree, which was registered as Miscellaneous Case No. 165 of 1983,.
the trial court set aside the said ex-parte decree and restored the suit to file. Thereafter the petitioner filed an application u/s 151 of the CPC in the
trial court praying for an injunction restraining the opposite party from transferring, and/or letting out the suit premises and obtained an interim order
on 23rd February, 1983. An application u/s 144 of the CPC was also filed by the petitioner for restoration of possession in respect of the suit
premises which gave rise to Misc. Case No. 982 of 1983 and the same was ultimately allowed on 5th February, 1986. Ore Rabi Dey, however,
filed a title suit in the City Civil Court at Calcutta making petitioner and the opposite parties herein as parties in the said suit inter alia, for
declaration that he was a tenant in respect of the disputed promises since 8th February, 1983 and also for injunction restraining the petitioner from
executing the order passed on his application u/s of the CPC as referred to above and brained an ad-interim order. The petitioner filed an
application under Order XXXIX Rule 4 of the CPC in the said suit subsequently, and at the time of moving the present revisional application the
said application was still pending. After the suit was restored to file, the learned Judge by the impugned order dated 4th of August, 1985 disposed
of the aforesaid application u/s 17(2) and 17(2A)(b) filed by. the petitioner holding inter alia, that there was relationship of landlord and tenant
between the parties and the petitioner was a defaulter in payment of rents since January, 1981, to 6th February, 1983 as. the petitioner admittedly
was dispossessed from the suit premises on 7th February, 1983. Mr. Ghosh, learned Advocate for the petitioner in this present Civil Order, has
challenged the impugned order contending inter alia, that the findings arrived at by the learned judge of the court below that there was relationship
of landlord and tenant between the parties is based on surmises and conjectures and on a clear mis-appreciation of the facts and circumstances of
the case and that the period of default as calculated by the learned Judge was also not properly decided inasmuch as, the moment an ejectment
decree was passed against the petitioner in respect of the disputed premise, he ceased to be a defaulter still he was evicted from the suit premises
in tenant in respect thereof and as such, even if, he was a defaulter in payment of rent, he could not, in such circumstances of the case, be held to
be a execution of the said decree and his liability to pay rent u/s 17(1) and 17(2) of the West Bengal Premises. Tonahcy Act also ceased to exist
from the date of the said ejectment decree and it only revived after the said decree was set aside. In support of his said contention, Mr. Ghosh
refers to a decision of this Hon''ble Court in the case of Lakhpart Rai Marwari v. Radheshyam. (69 C.W.N. 858).
2. Mr. Chatterjee, learned Advocate, appearing for the opposite parties, however, has supported the impugned order on the basis of the Special
bench decision of this Hon''bie Court in Sriniwas Sureka Vs. Madanlal Sekhsaria and Others,
3. Having heard the learned Advocates for the parties, so far as the finding of the learned trial judge regarding the question of relationship of
landlord and tenant between the parties, I find on reason to interfere u/s 115 of Code of Civil Procedure. Regarding the last submission of Mr.
Ghosh however, I am of the view that the leaned judge of the court below had acted with material irregularity and also in excess of his jurisdiction
in holding that the petitioner was liable to pay rent, even after the ejectment decree was passed against, him still he was actually dispossessed from
the suit premises.
4. The word ""tenant"" has been defined in Section 2(h) of the West Bengal Premises Tenancy Act, 1956 as follows:
2(h) ''tenant'' (means) any person by whom or on whose account or behalf, the rent of any premises is, or but for a special contract would be
payable and (includes any person continuing in possession after the termination of his tenancy or in the event of such person''s death, such of his
heirs as were ordinarily residing with him at the time of his death) but shall not include any person against whom any decree or order for eviction
has been made by a Court of competent jurisdiction.
5. From the above definition it is quite clear that a tenant shall not include a person against whom an ejectment decree has been passed.
Accordingly, the moment an ejectment decree is passed against a tenant, he ceases to be a tenant and also is not liable to pay rent for the disputed
premises under Sections 17(1) or 17(2) of the West Bengal Premises Tenancy Act, 1956, in other words, his liability under the said Sections also
ceases from that moment and it only revives if the said ejectment decree is set aside and the suit is restored to file. Reference may be made to the
several decisions of this Hon''ble Court on this issue in the cases of Kanatlal Dutta v. Kanailal Patra (67 CWN. 334); Radharani Dassi v.
Angurabala Dassi (67 CWN. 501) and Lakhpat Rai Marawari v. Radhashjam (69 CWN 858).
6. So far as the Special Bench decision in Sriniwas Sureka (supra) is concerned, the said decision, in my view, does not support Mr. Chatterjee in
any way as the facts of that case were quite different. On the contrary, some of the observation of the Special Bench made in that decision,
however, may be held to be supporting Mr. Ghosh''s contention on the question of the liability of a tenant to pay rent in terms of Section 17(1) of
the West Bengal Premises Tenancy Act, 1956 after the tenant suffered an ejectment decree inasmuch as The Hon''ble Mr. Justice Sabyasachi
Mukherji (as His Lordship then was) delivering the judgment in that case, held inter alia in paragraph 6 at page 17 of the said decision as follows:
The liability u/s 17(1) is the liability of the tenant as defined in clause (h) of Section 2 of the Act. Taking the scheme of the Act and construing the
expression used in the light of the above considerations, it appears to us that the liability u/s 17(1) to deposit rent does not continue during the
pendency of the appeal after a decree for eviction has been passed even though the tenant continues to be in possession by virtue of an order of
the appellate court during the pendency of the appeal.
The Special Bench in the said decision also relied on all. the above decisions in the cases of Kamiial Dutta (supra), Radharani Dassi (supra) and
Lakhpar Rai Marwari (supra). In such view of the matter, the finding of the learned judge of the court below that the petitioner is liable to pay rent,
even if the ejectment decree was passed, upto the date when he was actually dispossessed from his tenancy, cannot be sustained in law and is,
therefore, set aside and the matter is remanded back to the learned judge for re-hearing of the applications under Sections 17(2) and 17(2A)(b) of
the West Bengal Premises Tenancy Act, 1956, in the light of the observations made above and the learned judge shall make all endeavours to
dispose of the same at an early date preferably within three months from the date of communication of this order.
The Civil Order is disposed of as above without any order as to costs. Let this order be communicated to the court below forthwith.