Calcutta High Court (Appellete Side)
Strategic Management Technology ... vs Smt. Chaya Ghosh & Ors on 27 February, 2020
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
1 27.02.2020
Srimanta List - S/L Sl. No. 16 Ct. No. 17 C. O. 4348 of 2019 Strategic Management Technology Consultants (SMTC)
-Vs.-
Smt. Chaya Ghosh & Ors.
Mr. Milan Chandra Bhattacharyya, Sr. Adv., Mrs. Sulagna Bhattacharyya, Adv., ...for the petitioner.
Mr. Tarak Nath Halder, Adv.
...for the opposite parties.
The plaintiff of Title Suit No. 63 of 2015 has prayed for transfer of the said suit from the 3rd Court of the learned Civil Judge (Junior Division) at Sealdah to the 2nd Court of the learned Civil Judge (Senior Division) at Barasat.
Before dealing with the instant application for transfer it is pertinent to mention that initially Title Suit No. 63 of 2015 was instituted in the 3rd Court of the learned Civil Judge (Junior Division) at Sealdah but subsequently as a result of bifurcation of district the said suit is now pending before the learned Civil Judge (Junior Division) at Bidhannagar.
In Title Suit No. 63 of 2015 the plaintiff has prayed declaration of his tenancy right in respect of both 'A' and 'B' schedule property and recovery of possession in respect of 'B' schedule property consisting of one hall room, kitchen and two toilets lying and situated at Premises No. HB 217, Sector - III, Salt Lake within Police Station - South Bidhannagar. The said suit is at the stage of peremptory hearing but the parties have not led evidence as yet.
The defendants of the said suit as plaintiffs filed a subsequent suit being Title Suit No. 53 of 2016 before the 2nd Court of the learned Civil Judge (Senior 2 Division) at Barasat praying for eviction, recovery of khas possession and other consequential reliefs stating, inter alia, that the defendant (plaintiff of Title Suit No. 63 of 2015) was a tenant in respect of one room and one lobby- cum-entrance situated on the north-east corner on the ground floor of Premises No. HB 217, Salt Lake City, Sector - III under Bidhannagar South Police Station.
The petitioner has filed the instant application stating, inter alia, that though the petitioner was a tenant in respect of the entire ground floor of Premises No. HB 217, Salt Lake, Sector - III, it was forcibly and illegally dispossessed from a portion of tenancy consisting of one hall room, kitchen and two toilets. The opposite party herein filed suit for eviction against the petitioner praying for eviction in respect of only one room and entrance-cum- lobby in the said premises. On the other hand, Title Suit No. 63 of 2015 was for declaration of tenancy in respect of entire ground floor of Premises No. HB 217 with recovery of possession in respect of the said hall room, kitchen and two toilets of the same premises.
It is submitted by Mr. Bhattacharyya, learned Senior Counsel on behalf of the petitioner that in both the suits the extent of tenancy is disputed. Before passing a decree in a suit for eviction filed by the opposite party it is incumbent upon the learned Trial Court to decide the extent of tenancy because the petitioner herein as defendant has categorically disputed the extent of tenancy from which eviction was sought for in paragraph 4 of the written statement. It is the specific case of the opposite party that beside the said one room and lobby-cum-entrance from which eviction was sought for, the petitioner is also tenant in respect of one hall room, one kitchen and two toilets in the same premises. Thus, in order to avoid conflicting decision in both the suits the earlier suit being Title Suit No. 63 of 2015 ought to be transferred to the 2nd Court of the learned Civil Judge (Senior Division) at 3 Barasat with a further direction for analogous hearing of the said suits. In support of his contention Mr. Bhattacharyya relies on a unreported decision of this Court in C.O. No. 1620 of 2009 (Smt. Lovely Dasgupta (Saha) -Vs.- Smt. Kaberi Gupta & Ors., Judgement delivered on 16th June, 2010). In the said unreported decision the petitioner claimed tenancy in respect of the suit property. The opposite party by filing another suit claimed recovery of possession on revocation of licence. This Hon'ble Court directed both the suits to be heard analogously by the same and identical Court. According to Mr. Bhattacharyya, this principle is squarely applicable in the instant suit and Title Suit No. 63 of 2015 should be transferred to the 2nd Court of the learned Civil Judge (Senior Division) at Barasat.
Mr.Tarak Nath Halder, learned Advocate on behalf of the opposite parties, on the other hand, submits that Title Suit No.53 of 2016 is a suit for eviction under the Transfer of Property Act on determination of tenancy by a notice under Section 106 of the said Act. In the said suit, evidence of the parties has already been concluded and it is fixed for hearing argument. The subject-matter of the said suit is one room and entrance-cum-lobby situated at Premises No.HB-217, Salt Lake City.
On the contrary, subject-matter of Title Suit No.63 of 2015 filed by the petitioner as plaintiff is a suit for declaration of tenancy right and recovery of possession in respect of one hall room, kitchen and two toilets. The opposite parties claim the said portion situated on the ground floor of Premises No.HB-217, Salt Lake City as part of his original tenancy wherefrom he was wrongfully evicted. Thus, the subject-matter of the said suit is entirely different from the subject-matter of the suit for eviction instituted by the opposite parties. In the suit for eviction, opposite parties are required to prove only that a valid legal and sufficient notice was properly sent to the tenant terminating the tenancy and the tenant did not quit, vacate and deliver possession of the tenanted premises within the stipulated period of time. Therefore, issues involved in both the suits are 4 different. Under such circumstances, the said suit cannot be transferred to the Court of the learned Civil Judge (Senior Division), 2nd Court at Barasat.
It is further urged by Mr. Halder that in respect of the Title Suit No.63 of 2015, the learned Civil Judge (Junior Division) had the pecuniary jurisdiction. Therefore, the suit was filed and is required to be filed in the Court having territorial and pecuniary jurisdiction. Accordingly, the suit for declaration of tenancy and recovery of possession filed by the petitioner was instituted in the Court of learned Civil Judge (Junior Division), 3rd Court at Sealdah since transferred to the Civil Judge (Junior Division) at Bidhannagar. If the said suit is transferred, there will be anomaly in the matter of pecuniary jurisdiction vis-à-vis entertainability of a suit by a Court of law. Mr. Halder also refers to a decision of the Hon'ble Supreme Court in the case of K.K.Nair & Anr. -Vs.- Kavanugal Aanattu Radhika reported in (2005) 13 SCC 439 to impress upon this Court that when a suit is in final stage and hearing is likely to be concluded within one or two dates, prayer for transfer of the suit should be refused.
Having heard the submission made by the learned Counsel on behalf of the petitioner and the opposite parties and on perusal of the application, affidavit-in- opposition and affidavit-in-reply, I find the following undisputed factual circumstances: -
(1) Title Suit No.53 of 2016 was filed by the present opposite parties praying for eviction of the defendant/petitioner claiming inter alia that the extent of tenancy of the petitioner consists of one room and one entrance-cum-lobby on the ground floor of Premises No.HB-217.
(2) It is also not disputed that in the written statement of the said suit, the petitioner clearly stated that its extent of tenancy is one room, one lobby-cum-entrance situated in north-east corner, one kitchen, two toilets and one hall room on the ground floor of the said premises.5
(3) It is also on record that the petitioner has alleged that he was wrongfully dispossessed from one hall room, one kitchen and two toilets which were under his tenancy by the opposite parties.
In order to recover possession of the said portion of the alleged tenancy, he instituted earlier suit being Title Suit No. 63 of 2015. Therefore, in both the suits, one of the conflicting issues is the extent of tenancy. I am in agreement with Mr. Halder that in a suit for eviction under the Transfer of Property Act by terminating tenancy by a notice under Section 106 of the said Act, two essential ingredients are to be established :- (a) existence of jural relationship of landlord and tenant between the parties, and (b) determination of tenancy by service of notice under Section 106 of the Transfer of Property Act. Now, in view of the conflicting statement between the parties as pleaded in the plaint and written statement with regard to the extent of tenancy, a common question will automatically arise in both the suits as to the extent of tenancy and whether the entire tenancy was terminated by a notice or not.
It is contended by Mr. Halder that if the suit filed by the petitioner is decreed, he will be entitled to get recovery of possession under Section 144 of the Code of Civil Procedure.
At this juncture, a question will naturally arise as to whether the Court will encourage multiplicity of proceeding or not. When the extent of tenancy is in dispute between the parties, it will of course touch upon the sufficiency, validity and legality of the notice under Section 106 of the Transfer of Property Act.
For the reasons stated above, I am of the considered view that both the suits filed by the contesting parties should be heard analogously.
In view of such conclusion, Title Suit No.63 of 2015 be transferred to the 2nd Court of the learned Civil Judge (Senior Division) at Barasat for disposal analogously with Title Suit No.53 of 2016. The learned Civil Judge (Senior Division) is specifically directed to conclude recording of evidence of both the 6 parties in Title Suit No.63 of 2015 within one month from the date of receipt of the order without giving any adjournment to either of the parties on any reason whatsoever. Learned Judge is also directed to dispose of both the suits positively by 15th April, 2020.
The instant application is, thus, disposed of.
(Bibek Chaudhuri, J.)