Calcutta High Court (Appellete Side)
1199/2010 on 22 June, 2010
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1 06.2010 C.O. 1199 of 2010 Mr. Saptangsu Basu, Mr. B. Bhattacharya, Mr. Sudhangsu Sil, Mr. Arindam Guha.
... For the Petitioner.
Mr. Asish Chandra Bagchi, Mr. Raja Mantosh.
... For the Opposite Party.
The plaintiff filed a suit for eviction of the defendant after revocation of licence. The plaintiff claimed that the defendant did not pay the licence fees for a substantial period and as a result, he prayed for a decree for recovery of Rs. 35,000/- towards the arrear licence fees. The plaintiff has also claimed mesne profit @ Rs. 3500/- per month upto the date of recovery of possession.
The defendant/opposite party is contesting the said suit by filing written statement wherein he claimed that he was inducted as a tenant in respect of the suit property at a monthly rental of Rs. 3500/- out of which he is required to pay a sum of Rs. 500/- to the Association per month towards the service charges. The defendant contends that he is regularly depositing a sum of Rs. 3,000/- towards rent per month in the office of the Rent Controller to the credit of the plaintiff. He further contends that he is also regularly depositing a sum of Rs. 500/- per month with the Association towards the service charges. Thus, he claimes that he is not a defaulter in payment of rent. The defendant, thus, categorically denied that he was a licensee in respect of the suit property under the plaintiff and his licence has been revoked. As a matter of fact, the defendant claimed that he is a tenant and his tenancy is protected under the West Bengal Premises Tenancy Act, 1997. As such, he cannot be evicted from the suit premises, in such a suit. The plaintiff filed an application in the said suit, seeking issuance of direction upon the defendant to pay a sum of Rs.
235000/- towards the occupational charges of the suit premises during the pendency of the suit. The plaintiff's said application was rejected by the learned Trial Judge by the impugned order being No. 117 dated 29th January, 2010 passed by the learned Civil Judge, Senior Division, 1st Court at Alipore in Title Suit No. 75 of 1996.
The plaintiff is aggrieved by the said order. Hence, the plaintiff has come before this Court with this application under Article 227 of the Constitution of India.
Heard Mr. Basu, learned Advocate appearing for the petitioner and Mr. Bagchi, learned Advocate appearing for the opposite party. Considered the materials on record, including the order impugned.
Let me now consider as to how far the learned Trial Judge was justified in rejecting the plaintiff's application in the facts of the instant case.
On perusal of the pleadings of the respective parties, this Court finds that a dispute is raised in the suit as to the status of the defendant. The plaintiff claims that the defendant is a trespasser after revocation of his licence. On the contrary, the defendant claims that he was inducted as a tenant in the suit premises and his tenancy is still continuing. Thus, the Court is now required to resolve the said dispute. In fact, resolution of such dispute cannot be done without trial on evidence. This Court is informed that the suit has matured for hearing and is now in the peremptory board of hearing.
Be that as it may, the occupation of the defendant in the premises is not denied by any of the parties. The liability to pay the charges for use and enjoyment of the suit premises cannot be denied by the defendant. The defendant claimed that he is a tenant and the rent payable by him is Rs. 3500/-. The plaintiff also claimed charges @ Rs. 3500/- per month towards the wrongful use and occupation of the said premises by the defendant. Thus there is no 3 disagreement between the parties with regard to the rate of occupational charges of the suit premises, be it on account of rent or by way of damages for wrongful occupation Under such circumstances, this Court holds that justice will be subserved if the plaintiff is permitted to withdraw the deposits which were made by the defendant towards the charges for use and enjoyment of the suit premises from the office of the rent controller without prejudice to the rights and contentions of the parties in the suit.
It is made clear that in the event it is ultimately held that the defendant is a tenant in respect of the suit premises and his tenancy is governed by the West Bengal Premises Tenancy Act, then the money which will be withdrawn by the plaintiff from the office of the rent controller will be regarded as rent of the suit premises. On the contrary, if it is ultimately held that the defendant is not a tenant in respect of the suit premises and he was a licensee therein and his licence was revoked, then the money which will be withdrawn from the office of the Rent Controller will be adjusted against the arrear licence fees and/or damages for wrongful use and occupation of the suit premises after revocation of his licence.
Since the direction for early disposal of the suit has already been passed by Justice Patheria on 1st September, 2009 in ALP No. 57 of 2009, no further direction is given herein, for disposal of the said suit.
This Court thus disposes of this revisional application without disturbing the impugned order but with the observations made above, and with the hope and trust that the direction for early disposal of the suit which was passed by justice Patheria in the aforesaid proceeding will be strictly adhered to by the learned Trial Judge.
Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
4ac (Jyotirmay Bhattacharya, J.)