Calcutta High Court (Appellete Side)
4568/2011 on 12 May, 2011
Author: Subhro Kamal Mukherjee
Bench: Subhro Kamal Mukherjee
1
S/L. 21.
May 12, 2011.
F. M. A. T. No. 369 of 2011
Mr. Probal Kumar Mukherjee,
Mr. Arijit Bardhan,
Mr. Debanik Banerjee,
Mr. Aasif Hussain
....for the appellants.
Mr. Aniruddha Chatterjee
....for the respondent no. 1.
Re : C. A. N. 4568 of 2011(Section 5) Mr. Probal Mukherjee, learned advocate for the appellants submits that the appeal is barred by limitation by three days. He has filed an application for condonation of delay, being C. A. N. 4568 of 2011.
By consent of the learned advocates for the contesting parties, we take up the hearing of the application for condonation of delay by treating the same as on day's list.
Mr. Aniruddha Chatterjee, learned advocate appears and accepts notice of the application for condonation of delay on behalf of the respondent no. 1.
On the prayer of the learned advocate for the appellants and at the risk of the appellants, we dispense with service of notice of the application for condonation of delay on the respondent no. 2.
2After hearing Mr. Probal Kumar Mukherjee, learned advocate appearing for the appellants, and Mr. Aniruddha Chatterjee, learned advocate appearing on behalf of the respondent no. 1, we are of the opinion that the appellants were prevented by sufficient cause from presenting the memorandum of appeal in time. The delay in filing the appeal is condoned.
The application for condonation of delay is, thus, allowed.
The office is directed to register the appeal, if the appeal is otherwise in form.
We make no order as to costs.
By consent of the learned advocates for the contesting parties, the appeal itself is taken up for hearing under Order XLI, rule 11 of the Code of Civil Procedure.
Ejectment Suit No. 15 of 2007 was instituted against one Mohanlal Agarwala, the pro-forma respondent no. 2 in this appeal. The suit was decreed by judgment and decree dated November 18, 2008. The decree was put to execution. The appellants filed an application under Order 21, rules 97, 98, 99, 100 and 101 read with Section 151 of the Code of Civil Procedure objecting to the execution of the decree.
In the application, in substance, two points have been taken. It was alleged that the tenancy was created in the name of the 3 judgment-debtor, being the second eldest brother, but all the brothers including these appellants were tenants. It was, further, contended that the suit was valued at Rs. 36,500/- (Rupees thirty six thousand and five hundred) only and, therefore, by the West Bengal Premises Tenancy (Amendment) Act, 2009, City Civil Court at Calcutta had no jurisdiction to pass the decree.
Mr. Mukherje submits that as the suit was valued at Rs. 36,500/- (Rupees thirty six thousand and five hundred) only, the decree passed by the City Civil Court was a nullity.
According to the said amended provisions, where the premises are situated on land wholly within the ordinary original civil Jurisdiction of this High Court at Calcutta, in case the value of the suit exceeds ten lakh rupees, the suit shall lie in the High Court. In case the value of the suit exceeds sixty thousand rupees, the suit shall lie in the City Civil Court, Calcutta. Any other suit shall lie before the Presidency Small Causes Court at Calcutta.
The learned judge in the executing court, in our view, rightly held that the appellants failed to prove that they were, also, joint tenants with the judgment-debtor. It is an admitted position that the tenancy was in the name of the judgment-debtor. It is, further, admitted that the judgment-debtor, due to certain misunderstanding, moved out to a separate flat in Park Street sometime in the year 1997. It is, therefore, admitted that the original recorded tenant was not residing in the suit premises. There are no materials, either oral or documentary, to establish that the appellants were ever accepted as the joint tenants.
4The suit was valued at Rs. 36,500/- (Rupees thirty six thousand and five hundred) only and it was decreed by the City Civil Court on November 18, 2008. The amendment of 2009 came into effect from July 10, 2001. As in the meantime several suits have been filed and disposed of by the City Civil Court, Calcutta and the Presidency Small Causes Court, Calcutta, although those courts did not have jurisdiction. Section 4 of the West Bengal Premises Tenancy (Amendment) Act, 2009 was incorporated to validate any action, order or judgment by the court, which did not have the jurisdiction.
The statement of objects and reasons for the West Bengal Premises Tenancy (Amendment) Act, 2009 is quoted hereinbelow:-
"The Bill seeks to amend the West Bengal Premises Tenancy Act, 1997 (West Ben. Act XXXVII of 1997), with a view to empowering the Court of Small Causes constituted under the Presidency Small Causes Court Act, 1882 and the City Civil Court established under the City Civil Courts Act, 1953, to have jurisdiction to try and dispose of the eviction cases since the said Act has not empowered the said Courts to have jurisdiction to try and dispose of the eviction cases, although many such cases have already been filed and disposed of by the said Courts".
Therefore, we are not ready to accept the contention of Mr. Mukherjee that in this case the decree was a nullity and, therefore, could not be executed.
5We do not find any merit in this appeal. Therefore, the appeal is summarily dismissed under Order XLI, rule 11 of the Code of Civil Procedure.
In view of dismissal of the appeal, the connected application for stay, filed under C. A. N. 3781 of 2011, becomes infructuous and the same is, also, dismissed.
We make no order as to costs.
(Subhro Kamal Mukherjee, J.) (Tarun Kumar Gupta, J.)