Calcutta High Court (Appellete Side)
Smt. Sabita Sharma vs Smt. Seema Kanoria And Others on 29 June, 2018
1 S/L. 21.
June 29, 2018.
MNS.
C. O. No. 4144 of 2017 Smt. Sabita Sharma Vs. Smt. Seema Kanoria and others Ms. Hashnuhana Chakraborty, Mr. Vinay Kumar Purohit ...for the petitioner.
Mr. Asish Chandra Bagchi, Mr. Prabir Kumar Misra, Mr. S. N. Chatopadhyay ...for the opposite parties.
The defendant in an eviction suit, filed under the West Bengal Premises Tenancy Act, 1997, has preferred the instant revisional application against an order, whereby the petitioner's application under Section 7 (2) of the West Bengal Premises Tenancy Act was disposed of by directing the petitioner to make certain payments as arrear rents, keeping the question of relationship of landlord and tenant open for trial.
Learned counsel for the petitioner submits that by a previous order dated November 22, 2013, the trial court itself framed a preliminary issue as to the existence of relationship of landlord and tenant between the parties.
By the same order, the next date was fixed for hearing the petition on the point of existence of relationship of landlord and tenant between the parties. Thereafter, by the impugned order dated November 13, 2017, the trial Judge disposed of the application 2 under Section 7(2) of the 1997 Act without deciding the issue of landlord-tenant relationship at all.
It is argued by learned senior advocate appearing for the opposite parties that the application under Section 7(2) of the 1997 Act might be heard along with the said preliminary issue.
Upon perusal of the records and hearing learned counsel for both sides, it is obvious that the court below refused to exercise jurisdiction vested in it by law in disposing of the application under Section 7(2) of the 1997 Act without adverting, even prima facie, to the said preliminary issue.
Accordingly, C. O. No. 4144 of 2017 is disposed of on contest by setting aside the impugned order dated November 13, 2017 and directing the Judge, Fourth Bench, Small Causes Court at Calcutta, to decide first the preliminary issue as to landlord-tenant relationship between the parties and, immediately thereafter, to decide the application filed by the petitioner under Section 7(2) of the 1997 Act afresh.
It is made clear that the merits of either the preliminary issue or any other question involved in the application under Section 7(2) of the 1997 Act have not been gone into by this Court and the trial court will be free to decide the preliminary issue as well as application under Section 7 (2) of the 1997 Act thereafter, independently without being influenced by the observations made in this order.
In view of long pendency of the suit, the trial Judge is further requested to dispose of the said preliminary issue as well as the application under Section 7(2) of the 1997 Act, in the chronology as directed above, as expeditiously as possible, without granting any unnecessary adjournment to any of the parties, preferably by the end of August, 2018. 3
There will, however, be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)