Calcutta High Court (Appellete Side)
Ac Kalpana Saha vs Santanu Roy Chowdhury & Anr on 18 May, 2011
Author: Harish Tandon
Bench: Harish Tandon
Sl/ 16.5.11 C.O. 4082 of 2009
141
ac Kalpana Saha
-vs-
Santanu Roy Chowdhury & Anr
Mr. Tanmay Chowdhury
Mr. Goutam Kumar Maity ... For Petitioner
This revisional application is directed against judgment and order dated 16th November 2009 passed by Additional District Judge, 3rd Court, Hooghly in Civil Revision Case No. 75 of 2005 reversing order No. 7 dated 10th June 2008 passed by Civil Judge (Junior Division), 1st Court, Chandannagar in Title Suit No. 227 of 2007.
The petitioner filed a suit for declaration of its right, title and interest and recovery of possession from the opposite parties on the ground that they are wrongfully and illegally occupying the said premises. The said suit is not instituted under any of the provisions of the West Bengal Premises Tenancy Act, 1997. Thus, this is a suit simplicitor for declaration and recovery of possession on the ground of illegal occupation. In a suit of such nature, an application, under Section 7(2) of the West Bengal Premises Tenancy Act, 1997, is filed by the opposite parties. In turn, the petitioner files an application, under Section 151 of the Code of Civil Procedure, raising question as to the maintainability of such application in a suit for recovery of possession on the ground of illegal occupation.
It appears that Trial Court proceeded rightly in holding that since the suit is not filed under the provisions of the West Bengal Premises Tenancy Act, 1997, the application, under Section 7(2) of the said Act, is not maintainable.
Such interlocutory order was assailed in C.O. 4082 of 2009 revision, under Section 115A of the Code of Civil Procedure, and the first revisional Court, by exceeding its jurisdiction, set aside the order of the trial Court on the ground that the opposite parties having claimed tenancy, the application, under Section 7(2) of the West Bengal Premises Tenancy Act, 1997, is maintainable.
I am afraid, the first revisional Court has proceeded on a wrong premise in holding that an application, under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 is maintainable when admittedly the suit has not been filed under any of the provisions of the said Act.
The first revisional Court should be reminded of the provisions of Section 7 of the West Bengal Premises Tenancy Act, 1997 which postulates that on a suit being instituted by the landlord for eviction, on any of the grounds referred to in Section, the tenant shall file an application under Sub Section (2) thereof for determination of the dispute.
Thus, on a meaningful reading of the said Section, it is clear that unless a suit is instituted for eviction on any of the grounds enumerated under Section 6 of the said Act, there is no question of applicability of an application under Section 7 thereof.
The order, impugned before me, cannot also be sustained on other ground. After amendment in the Civil Procedure Code in the year 2002 by which the proviso to Section 115 is inserted which envisaged that an order which would either dispose of the suit or other proceedings is capable of being assailed in revision under Section 115 or 115A of the Code of Civil Procedure. Even if it is taken that an application, under Section 7(2) of the West Bengal Premises Tenancy Act, 1997, is disposed C.O. 4082 of 2009 of by trial Court, such an order neither disposes of the suit or other proceedings and thus does not satisfy the conditions laid down in the said proviso.
Thus, I find that the first revisional Court has exceeded its jurisdiction in passing the impugned order dated 16th November 2009. The order suffers from infirmity and illegality and is not sustainable.
Accordingly, the judgment and order dated 16th November 2009, passed by Additional District Judge, 3rd Court, Hooghly in Civil Revision Case No. 75 of 2005, is hereby set aside.
The revisional application succeeds.
However, there will be no order as to costs.
Urgent photostat certified copy be supplied to the parties, if applied for, on priority basis.
(Harish Tandon, J.)