Calcutta High Court (Appellete Side)
Amit Kumar Chamaria & Anr vs Bijay Kumar Singh & Ors on 13 May, 2016
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION Present : The Hon'ble Justice Indrajit Chatterjee C.O. 1942 of 2013 Amit Kumar Chamaria & Anr.
-vs-
Bijay Kumar Singh & Ors.
For the petitioners : Mr. Saktinath Mukherjee,
Mr. Supratim Laha,
Mr. Pranav Sharma,
Mr. Ajit Pandey,
Mr. Vijay Kumar Singh.
For the opposite party : Mr. Prabhat Kr. Srivastava
Mr. Abhishek Sikdar.
Heard on : 12-05-2016.
Judgment on : 13-05-2016
Indrajit Chatterjee, J.:- It is the submission of Mr. Mukherjee, learned Senior Advocate appearing on behalf of the petitioners, that on similar fact and law point, judgement was delivered by this Court on 20-04-2016 in C.O. No. 1941 of 2013. Mr. Mukherjee has supplied a plain copy of that civil order and submits that in this case the order be passed so that this revisional application can be governed by the judgment as passed in the revisional application being C.O. No. 1941 of 2013 as the same fact and law point is involved in this case also.
In counter to all these, it is submitted by Mr. Srivastava, learned Advocate appearing on behalf of the opposite parties, by taking me to a judgement passed by this Court in connection with C.O. No. 3443 of 2010 (Subrata Mukherjee -vs- Bishakha Das) wherein the Bench differed with the earlier judgement of the co-ordinate Bench and preferred to place the matter before a Special Bench on the subject in issue.
Thus, he submitted that when the judgment of the Single Bench of this court as passed in connection with C.O. No. 55 of 2014 was not considered by this Court, then this Court while disposed of the C.O. No. 1941 of 2013 ought to have referred the matter to be decided by a larger Bench. In the same breath, he submitted that there is a decision of the Hon'ble Apex Court as reported in (2003) 5 SCC 448 (State of Bihar -vs- Kalika Kuer) wherein the Apex Court proceeded to say like this:-
"...... we would like to say that an earlier decision may seem to be incorrect to a Bench of a coordinate jurisdiction considering the question later, on the ground that a possible aspect of the matter was not considered or not raised before the court or more aspects should have been gone into by the court deciding the matter earlier but it would not be a reason to say that the decision was rendered per incuriam and liable to be ignored. The earlier judgement may seem to be not correct yet it will have the binding effect on the later Bench of coordinate jurisdiction. Easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways - either to follow the earlier decision or refer the matter to a larger Bench to examine the issue, in case it is felt that earlier decision is not correct on merits".
Learned Advocate further submitted that the plaintiff/petitioner claimed before the learned Trial Court that the tenancy is not in dispute and that practically, the plaintiff/landlord agreed that after the payment is made, the opposite party/defendant will lead of the mischief of Section 7(a) or 7(2) of the said Act of 1997. He further submitted that judicial discipline and decorum must be maintained and this Court ought to have referred the matter (C.O. No. 1941 of 2013) to a larger Bench as it differ with the judgment of Justice Prasad passed in C.O. No. 55 of 2014.
In reply, Mr. Mukherjee reiterated that the basic ingredients of Section 7(2) of the Act of 1997 have not been complied with in the present litigation and as such, there was no jurisdiction on the part of the learned Trial Court to grant any relief under Section 7(2).
Order assailed Before this Court, the Order No. 56 dated 22nd April, 2013 passed by the learned Civil Judge (Junior Division), 1st Court at Howrah, in Title Suit No. 104 of 2011 has been assailed. In that order, the learned Trial Court was pleased to allow the application under Section 7(2) of the West Bengal Premises Tenancy Act.
The fact before the trial court:
That the plaintiffs/petitioners are the joint owners in respect of the property being holding No. 244, G.T. Road, P.S. Belur (previously Bally), District: Howrah and one Sudama Singh was a monthly tenant in respect of one shop room situated in the ground floor of that holding @ monthly rent of Rs.25/- payable according to English Calendar month . That Sudama expired leaving behind the present opposite parties who were tenants in common in respect of the aforesaid shop room. Before the property devolved upon the present petitioner, the rent used to be realized by one Receiver appointed in Money Execution Case No. 23 of 1961 and the said Receivership was discharged vide order dated 10-02-2009 passed by the learned 2nd Civil Judge (Senior Division) at Howrah. The present petitioners by issuing notice demanded rent from the predecessor-in-interest of the opposite parties. It has been claimed in the plaint that the predecessor-in-interest of the opposite parties was a statutory defaulter and a request was made to such predecessor- in-interest to pay the arrear rent along with maintenance charges etc. After all these, the present suit was filed for eviction on the ground of default. The present opposite parties did not come up with a prayer to make payment of the arrear rent under Section 7(1)(a) of the said Act. One application was filed under Section 7(2) of the said Act as per petition dated 10th August, 2011 and the learned Trial Court allowed that application vide the impugned order. The question before this Court is whether the impugned order can sustain in view of the legal position.
Myself while disposing of C.O. No. 1941 of 2013 duly considered all the points in issue and came to the conclusion that the order passed by the learned Trial Court was fit to be set aside and this bench did that.
In this revisional application one argument has been made by the learned Advocate appearing on behalf of the opposite parties that this Court may refer this matter to a Special Bench as the decision of this Court as passed in that C.O. No. 1941 of 2013 is contrary to the decision of a co- ordinate Bench of this Court as passed in C.O. No. 55 of 2014.
I am to answer this point. On scrutiny of my judgment as passed in C.O. No. 1941 of 2013, it appears that this Court duly dealt with that matter in the paragraph No.2 Page 15 which is being referred to below:-
"So long I was in the midst of the argument put forward by the learned lawyers appearing on behalf of the parties. In answering the arguments of the parties I like to start with the judgment of the Coordinate Bench of this Court as passed in CO No. 55 of 2014. I agree with the learned Senior Counsel appearing on behalf of the petitioners that in that decision no principle was laid down and the said Bench arrived at a decision that Section 7(2) application as filed before that trial Court was maintainable in view of the decision of B.P. Khemka (supra). I like to reiterate that in that decision neither Section 7(1) nor Section 7(2) were the issues and the only issue before the Apex Court was that of Section 17(3) of the Act of 1956. In that Civil Order the two decisions of this Court as referred in the impugned order were even not considered by the said Bench and as such this Court is of the opinion that the said decision may be termed as judgment 'per incuriam' and not binding on this Court".
This Court has gone through the judgment passed in connection with C.O. No. 3443 of 2010 and has also taken into consideration the observation of the Apex Court as made out in Kalika Kuer (supra). I do not know in what manner the matter was decided as regards the applicability of Section 5 of the Limitation Act vis-à-vis Section 7(2) of the said Act, in the earlier decision of a co-ordinate Bench with which the learned Judge presiding over C.O. No. 3443 of 2010 differed.
It is true that judicial discipline and decorum is to be maintained but the paramount consideration must be justice. I do not like to repeat but I am constrained to say that in the judgment passed in C.O. 55 of 2014 neither the 'lis' was decided, nor the prior decision of this Court were considered and no principle was laid down which may give light to the learned Trial Court to decide the pending litigation. That Civil Order was decided only relying a judgment of the Apex Court as reported in (1987) 2 SCC 407 (B.P. Khemka) (supra). I can reiterate that this decision cannot be made applicable in this case about which I have discussed in details while disposing of that litigation being C.O. No. 1941 of 2013.
Thus, considering the circumstances, this Court is of the view that there is no reason to refer the matter to a larger Bench. This Court also did not consider to be fit while deciding that C.O. No. 1941 of 2013.
Regarding the argument of the learned Advocate for the opposite party that when the tenancy was not in dispute and the rent was also not in dispute, learned Trial Court rightly disposed of the application under Section 7(2) in favour of defendants/opposite parties, this court is of the view that the decision of the learned Trial Court is totally contrary to two earlier decisions of this Court as reported in 78 CWN 579 and 1977(2) CLJ 549.
Thus, I can say that the fact of this case is similar to that of the C.O. 1941 of 2013. The legal position is also the same. The only difference is as regards the parties, i.e. in that Civil Order, the present opposite parties were not before this Court and except this changed circumstance, there is nothing new in this civil revisional application. I have answered the point raised by Mr. Srivastava.
Thus, this Court is of the opinion that the impugned order passed by the learned Trial Court cannot be supported in the eye of law in view of the decision of this Court as passed in C.O. No. 1941 of 2013.
Thus, in view of the discussion so long, this Court is satisfied that the order impugned is fit to be set aside and I do that by exercising the discretion granted to the Court under Article 227 of the Constitution of India.
This revisional application, thus, succeeds on contest without costs. Office is directed to communicate this order to the learned Trial Court at once.
Photostat certified copy of this order, if applied for, be supplied to the parties on usual undertaking.
(Indrajit Chatterjee, J.) Later The prayer for stay of the operation of the order, as prayed for by the learned Advocate for the opposite party, is considered and rejected.
(Indrajit Chatterjee, J.)