Calcutta High Court (Appellete Side)
Sankar Burma vs Dipak Sonkar @Khatik & Ors on 15 May, 2017
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashis Kumar Chakraborty
C.O. 701 of 2013
Sankar Burma
Vs.
Dipak Sonkar @Khatik & Ors.
For the petitioner : Mr. Partha Pratim Roy
Mr. Sarbananda Sanyal
Judgement on: 15.05.2017
Ashis Kumar Chakraborty, J.
This revisional application under Article 227 of the Constitution of India is directed against the order dated August 27, 2010 passed by the learned 3rd Judge, Small Causes Court at Calcutta in Ejectment Suit No. 361 of 2003.
The short question of law that falls for consideration of this Court in the revisional application is whether in view of Section 8(3) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 (hereinafter referred to as "the Act of 2001") the Civil Court has the jurisdiction to entertain an ejectment suit at the instance of a thika tenant against a bharatia.
The brief facts of the case which are to be considered for deciding this application are stated below.
The opposite party nos. 1 to 5 filed the suit against the father of the petitioner and the proforma opposite party nos. 6 to 8, before the learned Court below, claiming a decree for recovery of possession of the suit property, comprising one room on the ground floor of Premises No. 242/02/A/H/8, Acharya Prafulla Chandra Road, P.S. Burtolla, Kolkata-700004, after evicting him therefrom. The plaint case of the opposite parties in the eviction suit are, inter alia, that their predecessor Shyamlal Khatik was a thika tenant in respect of the suit property under the State of West Bengal and the original defendant (the father of the present petitioner and the proforma opposite parties) was a bharatia in respect of the suit property under the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 (hereinafter referred to as "the Act of 1981"). After the death of their predecessor, the opposite parties became the thika tenants in respect of the suit property and the original defendant became a bharatia under them. By a notice dated September 16, 2003 issued under Section 6(4) of the West Bengal Premises Tenancy Act, 1997(hereinafter referred to as "the Act of 1997") the opposite parties called upon the original defendant to vacate the suit property but the latter failed to vacate the suit property and, as such, they filed the eviction suit.
In view of the enactment of the Act of 2001, with effect from March 01, 2003 the said Act of 1981 stood repealed and the opposite parties claiming themselves to be the thika tenants under the said Act of 2001 filed the eviction suit against the original defendant as a bharatia. During the pendency of the suit, the sole defendant died and the petitioner and the proforma opposite parties were substituted as the defendants in the suit. The petitioner, as one of the defendants filed his written statement in the suit before the learned Court below disputing all material allegations contained in the plaint and raised an objection to the maintainability of the suit before the learned Court below. On the basis of the averments made in the plaint and the written statement filed by the respective parties, the learned Court below framed various issues including, whether the learned Court below has the jurisdiction to entertain the suit.
On July 29, 2010 the learned Court below passed an order that in view of Order XIV Rule (2)(a) of the Code of Civil Procedure (in short "the Code"), the issue with regard to its jurisdiction to entertain the said suit shall be treated as a preliminary issue on August 27, 2010. On August 27, 2010 by an ex-parte order, as against the petitioner and the proforma opposite parties, the learned Court below held that inasmuch as the issue framed with regard to the jurisdiction of the Civil Court to entertain the suit involves questions of facts and law, the same cannot be decided as a preliminary issue. Thereafter, the petitioner filed an application under Section 151 of the Code, before the learned Court below alleging that since the opposite parties as the thika tenants filed the suit claiming eviction of a bharatia, in view of Section 8(3) of the Act of 2001 the Controller, as defined in Section 2(2) of the Act, has the exclusive jurisdiction to adjudicate the disputes between the parties and the learned Court below as the Civil Court lacked the jurisdiction to entertain the said suit. In the said application the petitioner prayed for dismissal of the suit by the learned Court on the ground of lack of jurisdiction. By order dated September 12, 2012 the learned Court below rejected the said application of the petitioner on the ground that by the earlier order dated August 27, 2010 it was held that the issue with regard to the maintainability of the suit involves mixed questions of law and fact and the same cannot be decided as a preliminary issue. The petitioner challenged the said order dated September 12, 2012 by filing a revisional application, being C.O. 4249 of 2012, before this Court. By order dated January 4, 2013 a learned Single Judge of this Court, disposed of the said revisional application without interfering with the reasoning of the said order dated September 12, 2012 passed by the learned Court below. Thereafter, the petitioner has filed the present revisional application challenging the said order dated August 27, 2010 passed by the learned Court below.
Assailing the impugned order passed by the learned Court below, Mr. Partha Pratim Roy, learned advocate appearing for the petitioner strenuously contended that from a reading of the plaint filed in the suit it is clear that the opposite parties plaintiffs are claiming that with the promulgation of the said Act of 1981 their father became the thika tenant in respect of the suit property and the original defendant, the father of the present petitioner was a bharatia. He submitted that with the enactment of the Act of 2001, the said Act of 1981 stood repealed and in the suit filed before the learned Court below the opposite parties, as the thika tenants are seeking eviction of the petitioner and the proforma opposite parties from the suit property by claiming them to be bharatias under the Act of 2001. It was argued that in terms of the provisions contained that Section 8(1) of the Act of 2001 the tenancy of any bharatia in respect of any structure occupied by him, on payment of rent to the thika tenant is governed by the provisions of the said Act of 1997, in matters relating to the payment of rent by the bharatia and his eviction by the thika tenant, the owner of the structure shall be deemed to be the landlord and the bharatia shall be deemed to be the tenant under the said Act of 1997. It was further submitted that in the plaint filed in the eviction suit, the opposite parties have claimed to have issued a notice under Section 6(4) of the Act of 1997 to the original defendant. Therefore, according to the petitioner, as per Section 8(3) of the Act of 2001 the eviction suit filed by the opposite parties against the original defendant claiming his eviction from the suit property could only be filed before the Controller as defined under Section 2(2) of the said Act and the learned Court below, being a Civil Court lacks the jurisdiction to entertain the said eviction suit. It was strongly contended that in the present case the learned Court below fell into an error of law in passing the impugned order holding that the issue of the jurisdiction to entertain the suit is a mixed question of fact and law and such issue cannot be decided as a preliminary issue in the suit. In support of the contention that the learned Court below lacks the jurisdiction to entertain the eviction suit, reliance was placed by the petitioner on an unreported decision of a learned Single Judge of this Court dated December 21, 2010 in C.O. 3521 of 2010 (Dilip Kumar Shaw vs. Sukumar Maity & Ors.).
A copy of the application was served upon the opposite parties but none appeared on behalf of them to contest this application.
I have considered the materials on record particularly, the plaint filed by the opposite parties plaintiffs in the eviction suit. From a reading of the plaint filed in the eviction suit it is clear that the opposite parties are claiming themselves to be the thika tenants in respect of the suit property and they are seeking the eviction of the petitioner and the proforma opposite parties by treating them as bharatias within a meaning of the said Act of 2001. Undisputedly, as per Section 8(1) of the said Act of 2001 the opposite parties filed the eviction suit by invoking the provisions contained in the said Act of 1997 by treating themselves as the landlords and the original defendant as the tenant under the said Act. As per Section 8(3) of the Act of 2001, any case of eviction of a bharatia by the thika tenant shall be disposed of by the Controller as defined in Section 2(2) of the said Act. Further, Section 12 of the Act of 2001 provides that any person aggrieved by any order of the Controller may prefer an appeal before the Land Reforms and Tenancy Tribunal established under the West Bengal Tenancy Tribunal Act, 1997. Therefore, against the decision of the Controller, in a case of eviction filed by the thika tenant against the bharatia, an appeal lies before the Land Reforms and Tenancy Tribunal. It is settled law that when the statute has gives a finality to the orders of a special tribunal or specified authority, the Civil Court's jurisdiction can be regarded as having been excluded if, there is adequate remedy to do what the Civil Court would normally do in a suit. In this regard, ready reference may be made to the decisions of the Supreme Court in the cases of Dhulabhai vs. State of M.P. reported in AIR 1969 SC 78 and Devinder Singh vs. State of Haryana reported in AIR 2006 SC 2850. Section 8(3) of the Act of 2001 specifically excludes jurisdiction of the Civil Court, so far as the matters relating to eviction of a bharatia by a thika tenant and such case is to be decided or dealt with by the Controller with finality and any grievance with regard to the validity of the order of the Controller can be questioned before the West Bengal Land Reforms Tenancy Tribunal Act, 1997.
In the light of the above discussions, it is clear that Section 8(3) of the Act of 2001, excludes the jurisdiction of the Civil Court to entertain a proceeding by a thika tenant for eviction of a bharatia. Therefore, in the present case, the objection raised by the petitioner with regard to the jurisdiction of the learned Court below to entertain the eviction suit is a pure question of law and such issue ought to have been answered in the negative. In this regard, I am in rspectful agreement with the unreported decision dated December 21, 2010 of a learned Single Judge of this Court in C.O. 3521 of 2010 (Dilip Kumar Shaw vs. Sukumar Maity & Ors.). I find that the learned Court below went wrong in law in not deciding the issue with regard to its jurisdiction to entertain the eviction suit filed by the opposite parties as a preliminary issue under Section 14(2)(a) of the Code.
For all the foregoing reasons, the revisional application succeeds and the impugned order dated August 27, 2010 passed by the learned 3rd Judge, Small Causes Court at Calcutta in Ejectment Suit No. 361 of 2003 stands set aside.
The learned Court below is directed to decide the preliminary issue raised by the defendant no. 1 in the suit, with regard to its jurisdiction to entertain the eviction suit in the light of the above findings.
However, there shall be no order as to costs.
Urgent certified copy of this judgement, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Ashis Kumar Chakraborty, J.)