Calcutta High Court (Appellete Side)
CO-1329-2018 on 12 June, 2018
1 Sl. June 12, C.O. 1329 of 2018
19. 2018 Mr. Hiranmay Bhattacharya, Mr. Tarak Nath Halder, ...for the petitioners.
Mr. Sibnath Ganguly, ...for the opposite parties.
The present revisional application is directed against an order refusing to grant stay of execution of an ex parte eviction decree in connectionwith an application under Section 47 of the Code of Civil Procedure. The basis of such refusal was merely that the question regarding jurisdiction raised in the said application had already been raised in the suit itself and could not be reagitated before the executing court.
It is submitted on behalf of the petitioners that since the question raised in the application related to inherent lack of jurisdiction of the court to pass the ex parte eviction decree and goes to the root of the matter, if decided in favour of the judgment debtors/petitioners, the same would rob the court from the power to pass the decree and would render the decree a nullity. It is argued that, in view of the bar stipulated in Section 21 of the West Bengal Thika Tenancy Act, 2001 read with Section 8(3) of the said Act, the civil court did not have jurisdiction to take up the matter concerning eviction of a bharatia. Since Section 8(3) of the said Act conferred such jurisdiction on the thika controller, the eviction decree is submitted to be a nullity.
In reply, the learned advocate appearing on behalf of the decree holders/opposite parties raises an interesting point. He submits that it appears from the language of Section 8 of the West Bengal Thika Tenancy Act, 2001 that the said Section relates to the West Bengal Premises Tenancy Act, 1956 and denudes the civil court from taking up eviction proceedings against bharatias apparently only in respect of tenancies governed by the 1956 Act. It is submitted that, when the suit was filed, the West Bengal Premises Tenancy Act, 1997 was already in force and, as such, the suit filed properly under the said 1997 Act could not be said to be barred by the provisions of Section 8(3) of the 2001 Act.
2In view of such arguments, it is clear that a strong triable question as to whether the civil court had inherent jurisdiction to pass eviction decree has been raised. As such, the executing court, while passing the impugned order, failed to exercise jurisdiction vested in it by law in not deciding the said question of inherent jurisdiction merely by saying that the said point was involved in the suit itself.
Such erroneous exercise of jurisdiction is all the more evident since a cursory glance at the ex parte decree in question reveals that the question of jurisdiction, either inherent or otherwise, was not gone into by the court at all while passing the ex parte eviction decree.
Accordingly, the revisional application is disposed of by setting aside the impugned order dated May 5, 2018 passed by the Civil Judge (Junior Division), Additional Court at Sealdah, South 24-Paraganas, in Miscellaneous Case No. 8 of 2018 and directing the said presiding officer to take up for hearing the petitioners' prayer for interim stay made in connection with the said miscellaneous case afresh and to adjudicate upon such prayer after hearing both sides as to whether the petitioners have a prima facie case relating to the civil court having had inherent jurisdiction to pass ex parte eviction decree. Such exercise will be completed by the executing court latest within a fortnight from the date of communication of this order to the said court.
In view of the police help cost for execution of the eviction decree in question having already been deposited by the decree holders, let there be stay of all further proceedings in the connected execution case being Ejectment Execution Case No. 3 of 2016 pending before the Civil Judge (Junior Division), Additional Court at Sealdah, South 24-Paraganas, for a period of three weeks from date or until further orders, subject to any subsequent order being passed by the executing court.
There will be no order as to costs.
Parties are at liberty to communicate this order to the executing court and the said court shall act upon such communication to comply with this order.
3( Sabyasachi Bhattacharyya, J. ) dns