Calcutta High Court (Appellete Side)
Dr. Dilip Bajaj vs Raj Kumar Agarwal & Ors on 18 April, 2016
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present : The Hon'ble Justice Indrajit Chatterjee
C.O. 3856 of 2013
Dr. Dilip Bajaj
-vs-
Raj Kumar Agarwal & Ors.
For the Petitioners : Mr. Priyabrata Mukherjee
Mr. Ashoke Sharma
Ms. Sabnam Laskar
Mr. Soumen Banerjee
For the opposite parties : Mr. Sourav Banerjee
Mr. Arnab Dutta
Heard on : 12-04-2016
Judgment on : 18-04-2016
Indrajit Chatterjee, J.: This court is hearing an application under
Article 227 of the Constitution of India filed by the tenant/petitioner
assailing the order nos. 102 dated 27-07-2012, 103 dated 28-08-2012,
106 dated 02-02-2013 and 108 dated 01-04-2013 passed in connection
with Ejectment Suit no. 684 of 2000 now pending before the learned
Judge, 5th Bench, Presidency Small Causes Court, Calcutta.
It may be noted that the present opposite parties filed one
Ejectment Suit No. 737 of 1983 for eviction of the present petitioner and
also for recovery of possession. That ejectment suit was numbered as
Ejectment Suit No. 737 of 1983 of the learned Chief Judge of City Civil
Court, Calcutta which was transferred to the court of 4th Judge, City
Civil Court, Calcutta and ultimately, it was transferred to the learned
trial court and also renumbered as Ejectment Suit No.684 of 2000.
The case of the petitioner can be stated in brief thus:-
The property originally belonged to Kumar Rajendra Narayan Roy
in his individual capacity and as trustee along with other trustee, Smt.
Mahamaya. They were trustees in respect of one deed of settlement
created in the year 1993. The lease was granted in favour of Nawal
Kishore Daga, Madan Gopal Daga and Manick Lal Daga (lessees). This
Nawal Kishore Daga was the father of Manick Lal and Madan Gopal. The
family of Dagas was governed by Mitakshara School of Hindu Law. The
said family used to run a joint family business in the name of Nawal
Kishore Daga.
The lease was for 61 years in respect of the premises nos. 373/4,
373/5, 373/6 and 373/7 of the then Upper Chitpur Road. All these
premises numbers including the name of the road was renumbered/
renamed as 265A, 265B and 265C, Rabindra Sarani, 4A,Raja Brajendra
Narayan Sreet and 41/1, 41/2 and 41/3 Ratan Sarkar Gaden Street.
These premises were further renumbered and renamed as 3A, and 3B
Kali Krishna Tagore Street, Calcutta.
On 29-03-1922 by a registered deed of assignment, those three
lessees, i.e., those Dagas transferred their leasehold interest in favour of
Ram Gopal Mohta and one Madan Gopal Daga with prior consent of the
lessors.
Ram Gopal Mohta became the assignee in respect of the original
lease deed dated 29-09-1919. By another deed of lease dated 22-03-
1941 Ram Gopal Mohta granted a sub-lease in respect of those
premises referred to above to one Smt. Ratan Bai commencing from 01-
11-1940 and ending with 30-12-1980. Thus, Ratan Bail acquired the
right, title and interest in respect of those premises as a sub-lessee
under Ram Gopal Mohta.
So, from all these deeds, it will transpire that the three branches
of owners succeeded the original owner and each of them had separate
trust and the premises comprised in the original lease deed dated 29-
09-1919 were separated and exclusively allotted to the three branches
of successor owners with the consent of the lessee, sub-lessee and all
the three branches of the lessors. The rent payable as per the lease deed
of 1919 was apportioned and the rent used to be paid to the three
branches of the owners. It is the further case of the petitioner that the
premises nos. 373/C, 373/D previously numbered as 373/5, 373/6 of
Upper Chitpur Road, Calcutta subsequently numbered as 265C and
265D Rabindra Sarani respectively were exclusively allotted to the
branch known as 'Kshitindra & Heirs', lately represented by the trustees
Smt. Jayabati Roy and Shri Jitendra Narayan Roy. It is the claim of the
petitioner that the defendant/petitioner was granted a monthly tenancy
by the said sub-lessee, Smt. Ratan Bai in respect of one big room on the
ground floor of premises no. 265B, Rabindra Sarani at a monthly rent of
Rs.110/- payable according to the English calendar month and the
defendant as per the claim is still in possession of that room. It was
submitted by the learned Advocate appearing for the petitioner that the
fact has transpired from the plaint itself.
The plaintiffs' version can be stated thus:-
That Ratan Bai's lease deed expired with the efflux of time on 30th
December, 1980, that the original lease deed of 1919 also determined
and terminated with effect from 31st December, 1980 or 1st January,
1981, thus, the ownership of premises no. 265B and 265C of Rabindra
Sarani, Calcutta were vested to its owners, Smt. Jayabati Roy and
Jitendra Narayan Roy, trustees to the estate of ''Kshitindra & Heirs'
together with all buildings and constructions therein.
Thus, according to the plaintiffs the said owners reentered the
leasehold premises on termination of lease and as per the plaintiffs by a
registered lease deed dated 09-01-1981, the said owners granted lease
of the entire premises of 265B and 265C of Rabindra Sarani, Calcutta to
the plaintiffs/opposite parties for a period of two years with effect from
01-01-1981and the defendant/petitioner was asked to attorn his aforesaid tenancy to the plaintiffs/opposite parties and to pay rent. It is the further case of the petitioner that after removal of the impediments of Urban Ceiling Act, 1976 in view of the decision of the Supreme Court, the plaintiffs/opposite parties surrendered the registered lease deed dated 09-01-1981 on 27-01-1981 and on that date, the owners granted lease in respect of those two premises to the plaintiffs/opposite parties for a term of 70 years with effect from 01-01-1981.
As per claim of the plaintiffs/opposite parties, the tenancy was terminated as per notice dated 15-04-1983, determining the tenancy since 31st May, 1983. The plaintiffs prayed for recovery of possession treating the tenant/defendant as defaulter since January, 1981 and the other ground for eviction was that of subletting without obtaining permission of the owner in writing to different doctors namely, Dr. Lokesh Vyas etc. The claim of the defendant is that the superior landlord did not re-enter the premises after the lease was terminated. Learned Advocate appearing on behalf of the defendant submitted that all the documents executed by the plaintiffs were just paper transaction.
The defendant also claimed that the present petitioner is a renowned doctor and he is a tenant under Suraj Ratan Mohta whose house properties in Kolkata was being managed by his nice and agent, Smt. Ratan Bai who in that capacity inducted the petitioner/defendant as a monthly tenant in respect of his chamber as a monthly rent of Rs. 110/- inclusive of everything and that the defendant is paying the rent. As per claim of the plaintiffs/opposite parties, this defendant is a defaulter since January, 1981 and it is the counter claim of the defendant that Ratan Bai collected rent till August, 1981 and that one Madan Mohan Mallick, learned Advocate of this Court, was appointed as receiver in FMA No.721 of 1981 and that receiver used to collect rent from the petitioner from September, 1981 to September, 1982, that Ratan Bai again started collecting rent and at a time she collected the rent upto 23rd January, 1983 for the period from October, 1982 to December 1982 and thereafter, she also took rent upto June, 1987 and now, it is the claim of the defendant that the rent is being deposited before the Rent Controller in the name of Ratan Bai since July, 1997. It is also the claim of the petitioner that one Suit was filed by Ratan Bai being Title Suit No. 1791 of 1981 before the City Civil Court, Calcutta, treating the present defendant as the proforma defendant and that in connection with that Title Suit one FMA No.164 of 1983 was filed and one receiver was appointed about which I have already stated.
Thus, the claim of the present petitioner is that the title of the plaintiffs/opposite parties is clouded and that the tenant is also in trouble as several persons are claiming the property treating them to be their tenant. The defendant has denied the creation of any lease deed in January, 1981 for two years and a further lease deed dated February 27, 1981 for 70 years. It is further claim of the petitioner that the present petitioner/defendant is totally in the dark regarding the creation of the lease deed in the year 1981 creating the lease for 70 years. Regarding the case of attornment, it is the case of the defendant in respect of the first two years lease since 1981, the defendant has denied that such notice was received by him for such attornment of tenancy right. Thus, the learned Advocate questioned as to how the tenancy in favour of the present petitioner could be created in accordance with law.
Thus, the learned Advocate submitted that the plaintiffs/opposite parties were not entitled to issue any notice terminating the tenancy as there was no relationship of landlord and tenant in between the parties. Thus, the learned Advocate submitted that the story of default, as claimed by the plaintiffs is a myth. Regarding the creation of sub- tenancy, it has been argued that the doctors, who are sitting in the said chamber are the doctors who are the assistants of the defendant/petitioner.
Learned Advocate appearing for the petitioner submitted that the plaintiff in Title Suit No. 1791 of 1981 were Suraj Ratan Mohta & Smt. Ratan Bai -vs- Jitendra Narayan Ray & Ors. wherein the right of the defendant from claiming any rent from the petitioner/defendant was challenged. The petitioner/defendant was made a proforma defendant. He further reiterated that F.M.A. and the Title Suit are both pending. Thus, he submitted that as the Title Suit and F.M.A. No.164 of 1983 are still pending, the present plaintiffs/opposite parties ought not to have filed this Ejectment Suit without determining that question of title in respect of the suit premises. He further submitted that the lease of 1919 ought to have been determined with the efflux of time in the year 1990 but unless the original owners got possession of the property they can claim any rent from the existing tenant. He further submitted that letter of attornment was a must to collect such rent. He argued that by that letter of attornment, the lessor will inform the lessee that now he will collect rent from the tenant and if there is default committed by the tenant then the entire default will be assigned to the lessee so that the lessee can collect rent from the tenants but also may take effective steps for recovery of Khas possession. He further submitted that the lessee is duty bound to inform the tenant as to the execution of the lease, relating to the letter of attornment containing the amount of default made by the tenant and assignment of such rent to the lessee by the lessor.
Learned Advocate submitted that the defendant/petitioner filed one application under Section 17(2) of the W.B.P.T. Act, 1956 wherein he disputed the landlord-tenant relationship between the parties, the quantum of rent and that there was no attornment of tenancy to the plaintiffs. The Court ought to have considered whether the petitioner was in default in payment of rent to the present opposite parties since January, 1981 and what was the amount of rent whether it was Rs. 110/- or Rs. 210/-.
Learned Advocate attacked all the orders being assailed before this Court being Order No. 102 dated 27-07-2012, Order No. 103 dated 28-08-2012, Order No. 106 dated 02-02-2013 and Order No. 108 dated 01-04-2013 as passed by the learned 5th Bench of the Presidency Small Causes Court, Calcutta, in Ejectment Suit No. 737 of 1983 and submitted that it is anybody's guess how the learned court jumped to the conclusion without recording any evidence that actually the rent was Rs. 210/- and the amount in due with interest was Rs. 87,550/-. He further submitted by taking me to Order No. 103 dated 28-08-2012 to show that the learned court below said that the claim of the defendant as to who is the owner of the property to whom the payment is to be made be kept open to be decided by the court later on at the time of final hearing but in the same breath, passed order directing the defendant/tenant to pay Rs. 87,550/- treating him as defaulter since January 1981 till July, 2012 and the rent payable was fixed to be Rs. 210/- per month. He also took me to Order No. 106 dated 02-02-2013 to show that Section 151 application as filed by the defendant/tenant was rejected without taking into consideration the argument of the defendant's Advocate. He also took me to Order No. 108 dated 01-04- 2013 to say that the learned Trial Court treated the application under Section 17(3) of the Act of 1956 to be an application under Section 7(3) of the W.B.P.T. Act, 1997 and by that the defence of the defendant as regards the delivery of possession was struck off without ascertaining as to who is the rightful owner to claim such rent.
Learned Advocate cited a decision of the Division Bench of this Court as reported in 65 CWN 149 wherein this Court answered in clear terms that in an application under Section 17(2) of the W.B.P.T. Act, 1956, the Court must also consider as to whether the tenant was duty bound to pay the rent to that landlord particularly when the tenant has denied the right of the landlord to ask for rent. Thus, the learned Advocate submitted that because of the impugned orders, which are against the principles of law, his client has suffered adversely and as such, those orders be set aside.
On behalf of the opposite parties, it was submitted by the learned Advocate that in the present application four orders have been challenged starting from 27-07-2012 to 01-01-2013. He submitted that vide order no. 108 dated 01-04-2014 the defence of the petitioner was struck off by invoking the jurisdiction of the learned trial court granted under Section 17(3) of the West Bengal Premises Tenancy Act, 1956. It can safely be said that actually the present defendant/petitioner swallowed the order under Section 17(2) of the said Act which was passed as early as on 28-08-2012. He further submitted that the order dated 28-08-2012 was not an ex parte order but still then, the defendant/petitioner did not take up the matter by filing one revisional application. Thus, he argued that the said order cannot now be assailed before this court.
Regarding the filing of the application under Section 151 of the Code of Civil Procedure it was the argument of the learned Advocate that when the learned trial court passed the order on 28-08-2012 rejecting the application under Section 17(3) of the West Bengal Premises Tenancy Act, 1956, the said learned trial court was functus officio to recall the said order. He submitted that by invoking Section 151 of the Code of Civil Procedure, such order cannot be recalled.
He submitted further that even though the suit is pending since 1983, learned trial court during these 33 years has failed to frame the issues in this case to take up the matter in the final list of hearing. Thus, he contended that the approach of the defendant/petitioner is just to delay the suit and such attitude cannot be encouraged. It was also argued that when an order was passed under Section 17(3) of the West Bengal Premises Tenancy Act, 1956, the order passed under Section 17(2) of the West Bengal Premises Tenancy Act cannot be challenged.
It was further submitted by the learned Advocate appearing on behalf of the opposite parties that it is true that while maintaining the application under Article 227 of the Constitution of India no time limit has been prescribed but the court may consider that while preferring an appeal, the period of limitation is three months and that may be ascribed to that of one revisional application. He further submitted that the findings of the learned Trial Court that the landlord-tenant relationship will be decided later on is also not bad because when issues will be framed, the court may frame one issue on that point.
He cited a decision of the Privy Council, as reported in 54 CWN 569 at page 571, wherein it was held that when an order has not been challenged, it will naturally get its finality after the period of appeal is over.
In reply, it was submitted by the learned Advocate appearing on behalf of the petitioner that if the order passed under Section 17(2) of the said Act of 1956 is bad in law, the revisional court has every right to exercise its jurisdiction to set aside the order. He further submitted that no limitation period has been prescribed to attract the constitutional provision as granted under Section 227 of the Constitution and thereby he submitted that this application is well maintainable.
This Court is sorry to hear one revisional application arising out of an ejectment suit which is pending since 1983. This ipso facto shows that the matter was not taken care of by either the learned Advocates of the parties or the court itself. It is needless to say that in any ejectment suit, the defendants are eager to drag the case. Some days are important, which I am mentioning in the next paragraph.
This revisional application was filed on 12th November, 2013. The 17(2) application, which was filed in 1983, could be disposed of by the trial court only on 28-08-2012. One application under Section 151 of the C.P.C was filed on 27-09-2012 which was disposed of on 02-02- 2013. The 17(3) application was disposed of on 01-04-2013.
I like to reiterate with the learned Advocate appearing on behalf of the petitioner that to secure constitutional remedies, the legislature, in its wisdom, has not prescribed any period of limitation. The court in exercising such constitutional power will however be careful to see the reasonableness of the delay and certainly if such revisional application is filed after 5 or 6 years may not be entertained unless a very good cause is shown.
Here in the case before the floor of this court, four orders have been assailed in one application under Article 227. All are regarding the issues, i.e. as regards landlord-tenant relationship and fixation of rent. I am at one with the learned Advocate appearing on behalf of the opposite parties that when the Trial Court passed the order under Section 17(3) of the said Act of 1956, the Trial Court had no other option but to allow the application considering the fact that the 17(2) application was disposed of on 28-08-2012 in the manner mentioned in that impugned order.
Thus, the application under Section 17(2) of the said Act is the crux of the matter and it is to be decided by the court whether that order was rightly passed by exercising proper judicial discretion and followed the procedure established by law. In an application under Section 17(2) of the said Act, 1956, the court must find out as to whether relationship was there in between the parties as landlord- tenant and the court must also see what was amount of rent, since when the defendant/tenant was a defaulter and what is the arrear rent. I have gone through the Order No. 103 dated 28-08-2012. The learned Trial Court practically jumped to the conclusion that the rent fixed was Rs. 210/- and the arrear rent was assessed Rs. 87,550/-. Not a single rent receipt was produced by the plaintiff/landlord before the learned Trial Court to convince it that actually the rent fixed was Rs. 210/- per month. The plaint cannot be taken to be a proof. No document was shown to the learned Trial Court how the plaintiff acquired title over the suit property. These are the basic things which one order under Section 17(2) of the said Act must contain. The court cannot by-pass the issue by saying that the landlord-tenant relationship will be disposed of at the time of final hearing of the suit.
It is true that the order dated 28-08-2012 has not been challenged instantly and so also the order dated 02-02-2013 before any higher forum. I have already said that in deciding the application, the question of limitation will not arise.
Every revisional court must be anxious to see that the orders of the court below are passed as per law. On reading and re-reading the order dated 28-08-2012, this Court is satisfied that the learned Trial Court practically by-passed the main issue involved in answering one application under Section 17(2). Simply because, the order was not challenged instantly, this Court cannot now say that the order has become final considering the conduct of the present petitioners that they took up the matter before the said Court under Section 151 of the C.P.C. instantly which application was, however, rejected on 02-02- 2013. There was practically some delay in knocking the doors of this Court from 1st April, 2013 to 11th November, 2013. Simply for such time gap, the Court cannot say that the orders assailed are all good in law.
It is true that while passing the order under Section 17(3), the Court had no option but to allow the application. While disposing of the application under Section 17(2) of the said Act, the Court ought to have been careful to dispose of the matter and find out whether the relationship of landlord-tenant existing and that actually, the plaintiffs collected rent from the defendant and if collected rent, what was the rent. Taking the risk of repetition, I like to reiterate that unfortunately, not a single document was produced before the learned Trial Court to convince it that the plaintiff was the owner in respect of the suit property and that Rs. 210/- was fixed at rent. The learned Trial Court disposed of the application under Section 17(2) in a cut-short manner, what weighed the learned Trial Court was the pendency of the suit since 1983. The learned Trial Court just set the ball in motion but unfortunately that did not click as the order was devoid of any merit.
This Court is not at one with the learned Advocate appearing on behalf of the opposite parties that in one revisional application only one order can be assailed and several orders cannot be tagged together. He tried to convince this Court that only the order which the defendant/petitioner would have challenged was the order dated 01-04- 2013 vide which section 17(3) application was disposed of. In exercising the jurisdiction granted to this Court under Article 227 of the Constitution of India, this revisional court must see that the learned Trial Court acted properly. I must reiterate that the learned Trial Court did not consider or did not ask the parties to put on record their cards before the court to come to a proper decision.
This being so, this Court is of the opinion that the order dated 28- 08-2012 cannot be sustained in the eye of law. If the said order is set aside, naturally the order dated 01-04-2013 is also to be set aside. Section 151 application was filed as against the order dated 28-08-2013 was disposed of on 02-02-2013. The said order dated 28-08-2012 being answered in favour of the petitioner, this order dated 01-04-2013 needs no answer from this Court.
Thus, this revisional application is disposed of on contest without any order as to costs.
The order dated 28-08-2012 as passed by the learned Trial Court in connection with Ejectment Suit No. 684 of 2000 is hereby set aside, corollary to this order dated 01-04-2013 is also set aside.
There is no reason to answer as regards the order dated 02-02- 2013 as the order dated 28-08-2012 has been set aside. As regards the order No.102 dated 27.07.2012 this court is of the opinion that no miscarriage of justice was done to the parties when the trial court rejected the petition of the defendant. Petitioner and both the parties were direct to get ready at once for the hearing of petition under Section 17(2) of the said Act of 1956. It may be mentioned that 17(2) application was disposed on contest. Thus, there is no reason to interfere with the said order. The said order was rightly passed and the said order is hereby affirmed.
The learned Trial Court is directed to re-consider the application under Section 17(2) of the W.B.P.T. Act, 1956 preferably within three months from the communication of this order. Reasonable opportunity be given to the parties to argue before the learned Trial Court and to produce the documents without giving unnecessary adjournments.
I hope that the learned Lawyers before the learned Trial Court will co-operate in this regard to see that the order of this Court can be carried out.
It is submitted by the learned Advocate appearing on behalf of the opposite parties that the learned Trial Court be directed to dispose of the entire Suit within one year from the communication of this order. There will be no such direction but the learned Trial Court will exercise its own discretion regarding the framing of time limit for the disposal of the suit considering the fact that the suit has already seen four decades.
The revisional application is, thus, disposed of.
Office is directed to communicate this order to the learned Trial Court at once by Special Messenger at the cost of the opposite parties/plaintiffs. Requisite must be filed within three days.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Indrajit Chatterjee, J.)