Calcutta High Court (Appellete Side)
In Re: M/S Subhalaxmi Sales Corporation vs Kajaria Properties on 25 April, 2012
Author: Soumen Sen
Bench: Soumen Sen
1 9 25.4.12
C.O. 3257 of 2011 jb.
with C.O. 2412 of 2010 Re: C.O. 3257 of 2011 In re: M/s Subhalaxmi Sales Corporation vs. Kajaria Properties Mr. Raja Basu Chowdhury, Mr. Arup Nath Bhattacharyya, Mr. Saswati Chatterjee, Mr. Basudeb Biswas .... For the Petitioner Mr. Sourav Sen, Mr. Pritam Chowdhury, Ms. Lovely Ghosh .... For the Opposite Party The present revisional application is arising out of an order dated 9th April, 2010 passed in Misc. Case no. 108/08 in an of ejectment execution case no. 187/05C. The said impugned order was passed in relation to an application filed under Section 19 of the Presidency Small Causes Court Act, 1882.
The petitioner is a tenant who has suffered decree for eviction in EJ. 187/05C. The petitioner filed an application under Order 9 Rule 13 of the Code of Civil Procedure along with an application for condonation of delay under Section 5 of the Limitation Act on the ground 2 that no summons have been served upon the tenant- petitioner and thereby the petitioner was prevented from appearing when the said ex parte decree was passed. During the pendency of the said application another application was filed purportedly under Section 19 of the Presidency Small Causes Court Act, 1882 on the ground that the Small Causes Court had no jurisdiction to decide any suit for eviction in view of specific bar under Section 19 (d) of the Presidency Small Causes Court Act, 1882. At the time of hearing of this application, it was urged that although there is an amendment to the West Bengal Premises Tenancy Act in the year 2009 by which the Presidency Small Causes Court has been conferred with the jurisdiction to try such suit or proceeding by a landlord against a tenant in which recovery of possession of any premises to which the said Act applies, no corresponding amendment has been carried out to Presidency Small Causes Court Act. It was further submitted that on an earlier occasion, the provisions of the Presidency Small Causes Court Act was amended to include the provisions of the West Bengal Premises Tenancy Act in matters relating to such eviction proceeding. In short, it was sought to be argued that the said decree is a nullity.
Mr. Raja Basu Choudhury refers to a judgment of this Hon'ble Court in the case of Tapas Biswas vs. Shyama Prosad Ghosal reported in 2009 (1) Calcutta Law Journal 329. The Court initially has admitted the stay petition and granted stay by taking into consideration the 3 aforesaid observation of the learned single Judge. The relevant extract of the said judgment is reproduced below:
"110. Now a question may crop up as to whether such a decree which was passed in the said eviction suit can be declared as a nullity as after the amendment of the West Bengal Premises Tenancy Act, 1997, in 2005 the Additional Controller had no jurisdiction to try the said suit.
111. In this regard reference may be made to the Presidency Small Causes Court (West Bengal Amendment) Act, XXX of 1999 by which Section 18 thereof amended. Sub-section 2 of Section 18 of such amended provision is relevant for the present purpose. As such, sub-section 2 of Section 18 of the said West Bengal Act, XIII of 1999 is set out hereunder:-
"Section 18(2) Notwithstanding anything contained in Section 19 or sub-section (1) of this section, but subject to the provisions of sub-clause
(iii) of Clause (1) of the First Schedule to the West Bengal Premises Tenancy Act, 1956, the Small Causes Court shall have jurisdiction to try all suits and proceedings for eviction of a tenancy under Chapter-III of the said Act as a Civil Court of ordinary original jurisdiction."
112. Thus, the said amended provision makes it clear that all suits for eviction under the West Bengal Premises Tenancy Act, 1956 within the Original Side Jurisdiction of this Hon'ble Court are now triable by the Presidency Small Causes Court subject to its pecuniary limit.
113. Though such provision was made for trial 4 of the eviction suit under the 1956 Act by the Presidency Small Causes Court, but under the amended provision of West Bengal Act, XIII of 1999, no such provision has been made for trial of the eviction suit under the West Bengal Premises Tenancy Act, 1997, by the Presidency Small Causes Court. In such view of the fact, this Court holds that the 3rd Bench of the Presidency Small Causes Court ought not to have proceeded with the trial of the said suit after Section 6 of the sad Act was amended in 2005. As such, the decree which was passed by the 3rd Bench, Small Causes Court in 2007 is a nullity as the said Court was lacking jurisdiction inherently to try such suit after Section 6 of the said Act was amended in 2005."
However, in course of hearing, Mr. Sourav Sen has referred to Sections 2 and 4 of the West Bengal Premises Tenancy (Amendment) Act, 2009 which are set out hereinbelow:
2. Insertion of new section after section 12 of West Ben. Act XXXVII of 1997.- After section 12 of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as the principal Act), the following section shall be inserted:-
"12A. Special provisions regarding jurisdiction of Courts for trial of suits for possession. - (1) Notwithstanding anything contained in any other law, a suit or proceeding by a landlord against a tenant in which 5 recovery of possession of any premises to which this Act applies is claimed shall lie to the Courts, as set out in the Schedule IV and no other Court shall be competent to entertain or try such suit or proceeding.
(2) The provisions of the Code of Civil Procedure, 1908 (5 of 1908) shall, mutatis mutandis, apply to all suits and proceedings referred to in sub-section (1) except suits or proceedings which lie to the High Court at Calcutta."
SCHEDULE IV [See section 12A(1) Where the premises are situated on land wholly within the ordinary original civil jurisdiction of the High Court at Calcutta,-
(a) in case the value of the suit exceeds ten lakh rupees, to the High Court at Calcutta;
(b) in case the value of the suit does not exceed ten lakh rupees but exceeds sixty thousand rupees, the City Civil Court established under section 3 of the City Civil Courts Act, 1953 (West Ben Act XXI of 1953);
(c) in any other suit, to the Chief Judge of the Court of Small Causes constituted under the Presidency Small Causes Courts Act, 1882 (15 of 1882), in the town of Kolkata, who may try the suit himself or may transfer the suit for trial to any other Judge of the said Court who shall try the suit as a court of first instance."6
4. Validation.- The amendments made in the principal Act by section 2 and section 3 shall be deemed to have been made with effect from the 10th day of July, 2001 and accordingly anything done or any action taken or purported to have been taken or done under the principal Act or after the said date and before the commencement of this Act, shall, notwithstanding anything contrary contained in any judgment, decree or order of any court, tribunal or other authority, be deemed to be, and to have always been, for all purposes, as validly and effectively taken or done as if the said amendments had been in force at all material time." Mr. Sen however, submits that when the said judgment of Tapas Biswas was rendered, this amendment was not there and it is a subsequent amendment by which there has been conferment of jurisdiction upon the Small Causes Court Act.
Although the Trial Court has taken note of the said judgment but unfortunately dismissed the said application on the ground that the said Court has no jurisdiction to determine the said application.
It is settled law that when an authority decides any matter which is without jurisdiction any such order becomes a nullity. If a Court is faced with such an application that it has no jurisdiction it is incumbent upon such Authority to look into the matter decide the issue.
7In view of the aforesaid, the learned Judge is required to decide the said application filed under Section of the Presidency Small Causes Court Act by limiting its enquiry as to the jurisdictional issue consequent upon the amendment to the West Bengal Premises Tenancy Act, 2009.
Mr. Sen submits that by reason of amendment carried out in the West Bengal Premises Tenancy Act, 2009 it is only the Presidency Small Causes Court which has jurisdiction to try the present suit havin regard to the valuation of the said suit. Mr. Sen also submits that no other Court in view of such amendment of 2009 would exercise any jurisdiction in relation to the said suit except the Presidency Small Causes Court in view of Schedule IV read with Section 2 of the Amendment Act of 2009 as mentioned hereinabove. This aspect of the matter seems to have not been considered by the trial Judge.
It is needless to mention that if the Court lacks inherent jurisdiction then any order passed by a Court is a nullity and accordingly irrespective of the nomenclature of the application filed by the petitioner, the same is required to be decided on merits by the learned Judge, 3rd Bench. In view thereof, the impugned order is set aside.
Learned trial Judge is directed to consider the said application afresh. Deciding the said matter, the learned Judge is required to take into consideration the 8 amendment made to the West Bengal Premises Tenancy Act, 2009 and any other relevant matters which may be raised by the parties in relation to the jurisdiction of the said Court. It is only after the jurisdictional issue is decided in favour of the petitioner then the application under Order 9 Rule 13 of the Code of Civil Procedure read with Section 5 of the Code of Civil Procedure may be considered.
The application thus succeeds.
Re: C.O. 2412 of 2010 In re: M/s Subhalaxmi Sales Corporation vs. Kajaria Properties In view of the order passed in C.O. 3257 of 2011, the impugned order dated 9th April, 2010 being the subject matter of challenge in C.O. 2412 of 2010 is also set aside and the same direction is passed in relation to Misc. Case no. 108 of 2008.
Photostat certified copy of the order, if applied for, be given to the parties on usual undertaking.
( Soumen Sen, J. ) 9