Calcutta High Court (Appellete Side)
Krishna Shaw & Ors vs Netai Pandit on 25 April, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Shivakant Prasad
S.A.T. 227 of 2015
Krishna Shaw & Ors
-Versus-
Netai Pandit
For the Appellants/ : Mr. S. K. Mallick.
Plaintiffs
Heard on: 25th April, 2016.
Judgement on: 25th April, 2016.
Jyotirmay Bhattacharya, J. :-
This second appeal is directed against the judgement and decree dated 30th October, 2014
passed by the Learned Judge, 5th Bench, Civy Civil Court, Calcutta in Title Appeal No. 20 of 2012
setting aside the judgement and decree dated 2nd December, 2011 passed by the Learned Judge,
3rd Bench, Small Causes Court at Calcutta in Ejectment Suit No. 321 of 2005-C, at the instance
of the plaintiffs/appellants.
Let us now consider as to whether any substantial question of law is involved in this
appeal for which the appeal is required to be admitted under the provision of Order 41 Rule 11 of
the Code of Civil Procedure, or not.
Here is the case where we find that the plaintiffs filed a suit for eviction against the
defendant on the ground of default in payment of rent as well as for their own use and
occupation. The defendant appeared in the said suit and contested the same by filing written
statement denying allegation made out in the plaint. Several issues were framed in the said suit.
Parties led evidence in support of their respective claim in the said suit.
The learned Judge after considering the pleadings of the parties and their evidence was
pleased to decree the said suit on contest. The decree for eviction was granted on the ground of
reasonable requirement of the plaintiffs. The learned Judge refused to pass any decree for
eviction on the ground of default as the learned Trial Judge held that the defendant is entitled to
get the protection under Section 7(4) of the West Bengal Premises Tenancy Act.
Being aggrieved by and dissatisfied with the said judgement and decree of the learned
Trial Judge, the defendant/respondent preferred an appeal before the learned Appeal Court.
The learned Appeal Court reversed the said judgement and decree of the learned Judge and allowed the appeal. The learned Appeal Court held that the suit was not maintainable before the forum where the suit was filed by the plaintiffs because of inherent lack of jurisdiction of this Court to entertain such suit. Such conclusion was drawn by the Appeal Court by considering the evidence of the plaintiffs' witness being P.W. 1 who admitted that the property where the tenancy was created is a thika tenanted property and the tenant is a Bharatia under the Thika tenant. The sale deed being Ext.3 also shows that the plaintiffs purchased the hut from the erstwhile owner thereof. Various other documents including the rent receipts were also considered by the learned Appeal Court for drawing such conclusion that the suit premises is a thika tenanted property and the plaintiffs are the thika tenants and the defendant is a Bharatia under the thika tenant.
The learned Appeal Court also held that the plaintiffs have failed to prove that they reasonably required the suit premises for their own use and occupation. Thus, the decree for eviction which was passed by the learned Trial Judge, was set aside and the appeal was allowed.
The instant second appeal is directed against the said judgement and decree of the learned Appeal Court. The legality of the impugned judgement is now under our scrutiny in this appeal.
Let us now consider as to how far the learned Appeal Court was justified in coming to the conclusion that the suit was not maintainable before the forum where it was filed by the plaintiffs.
The instant suit for eviction was filed sometime in the year 2005. The West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 came into operation on 22nd November, 2002.
Sub-section 3 of Section 8 of the said Act provides that any dispute regarding payment of rent by the thika tenant to the State Government or by a Bharatia to a thika tenant, or any case of eviction of Bharatia, shall be disposed of by the Controller in such manner as may be prescribed.
The Controller has also been defined in Section 2(2) of the said Act which provides that 'Controller' means an officer appointed under Section 9 and includes an Additional Controller and a Deputy Controller.
Necessary rule for dealing with such eviction proceeding has also been framed under Rule 13 of the West Bengal Thika Tenancy (Acquisition and Regulation) Rules, 2004. Such rule was notified in Kolkata Gazettee, Extraordinary issue on 2nd November, 2004.
As such, we have no hesitation to hold that both the Act and the Rule were in operation at the time when the suit was filed. Considering the aforesaid provisions of the said Act as well as the Rule framed therein, we have no hesitation to hold that an eviction suit filed by the thika tenant for evicting the Bharatia lies before the Controller appointed under Section 9 of the said Act. Such suit will not lie before the Civil Court even though the West Bengal Premises Tenancy Act provides for maintaining such suit before the Civil Court for the simple reason that the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 received the assent of the Governor on 22nd November, 2002 i.e. subsequent to the grant of assent by the Governor to the West Bengal Premises Tenancy Act, 1997 on 10th July, 2001.
Since it is well settled that when the provision of two States Acts contradicts with each other, the provision of the latter Act will prevail over the other for the simple reason that while considering the latter Act, the Governor had before His excellency all the earlier Acts and despite noticing the contrary provision contained in the earlier Act, the Governor was pleased to grant assent to the latter Act and thereby expressing His excellency's desire to implement the latter Act.
Following this principle, we hold that the suit for eviction of a Bharatia by the thika tenant will lie before the Controller appointed under Section 9 of the said Act.
As such, we hold that the learned Appeal Court did not commit any illegality in holding that the suit is not maintainable before the Civil Court where it was filed.
We thus, do not find any apparent illegality in the order impugned for which the appeal is required to be admitted for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure.
It is thus, made clear that dismissal of the said suit for want of jurisdiction of the Civil Court to try such a suit will not prevent, the plaintiffs/appellants from seeking an appropriate relief before the appropriate forum in accordance with law.
The appeal is, thus, dismissed.
Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.
(Jyotirmay Bhattacharya, J.) (Shivakant Prasad, J.) dp