Calcutta High Court (Appellete Side)
Armen George & Co. Pvt. Ltd vs Flavien Properties Pvt. Ltd. & Anr on 28 April, 2011
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE C.O. No. 406 of 2010 Present :
The Hon'ble Mr. Justice Prasenjit Mandal Armen George & Co. Pvt. Ltd.
Versus Flavien Properties Pvt. Ltd. & anr.
For the petitioner: Mr. J.L. Chakraborty, Mr. D. Trivedi, Mr. A. Sharma.
For the opposite parties: Mr. S.P. Roy Chowdhury, Mr. A.B. Rout, Mr. D. Sharma.
Heard On: 20.04.2011.
Judgement On: April 28, 2011.
Prasenjit Mandal, J.: This application is at the instance of the resister and is directed against the Order No.23 dated January 16, 2010 passed by the learned Judge, City Civil Court, 8th Bench in Misc. Case No.4485 of 2009 arising out of Ejectment Execution No.2 of 2009 thereby rejecting the applications under Section 151 of the Civil Procedure Court (henceforth shall be referred as 'C.P.C.') for stay of the two misc. cases.
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The resister claims itself a sub-lessee in respect of the premises as described in the ejectment suit and its contention is that it is a sub-lessee under the tenant opposite party no.2 herein with notice to the plaintiff / decree-holder / opposite party herein. The decree-holder got a decree of recovery of possession against the judgment debtor and that decree was put into execution. At that time, the petitioner resisted the execution of the decree and for that reason, two misc. cases, one for rendering police help by the decree-holder and another claiming right, title, interest and possession over the premises in suit by the resister were filed. The evidence of both the misc. cases was closed. At that time, the resister filed two applications under Section 151 of the C.P.C. in the two misc. cases for stay of further proceedings of the said two misc. cases. Those applications were rejected by the impugned order. Being aggrieved, this application has been preferred by the resister.
Now the point for consideration is whether the impugned order should be sustained.
Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the following facts are not in dispute:-
i) In 1975, the opposite party no.1 instituted an ejectment suit being Ejectment Suit No.1212 of 1975 against Metro Golden Mayer Indian Limited & ors. 3
ii) The said ejectment suit was compromised in December 1984, inter alia, on terms that the decree-holder would let out the premises to the judgment debtor with the right to sublet a part and portion of the said premises to other parties.
iii) In February 1998, the judgment debtor granted lease for a period of 25 years to the resister by an unregistered deed in respect of the premises in suit with a covenant to renew the said lease upon determination for a further period of 25 years.
iv) In 1995, the decree-holder filed a suit for ejectment being Ejectment Suit No.170 of 1995 against the judgment debtor on the ground of default in payment of rent since August 1994.
v) On April 3, 2003, the resister addressed a notice under Section 26 of the West Bengal Premises Tenancy Act, 1995 as amended to both the opposite parties requesting the decree-holder to accept the resister as direct tenant under the decree-holder.
vi) In 2003, the judgment debtor filed a suit being T.S. No.967 of 2003 against the decree-holder and the resister for decree of declaration that the plaintiff has right to realise the rent from the 4 tenants in respect of the premises in suit and for other reliefs.
vii) The said title suit was dismissed for non-
prosecution on June 4, 2008.
viii) On June 13, 2008, the Ejectment Suit No.170 of 1995 was compromised between the decree-holder and the judgment debtor.
ix) On January 13, 2009, an application under Order 21 Rule 2 of the C.P.C. was filed by the decree-holder stating that the decree was partly satisfied and as such the decree-holder intended to execute the decree for getting possession of a portion of the suit property. The said application was allowed.
x) On March 30, 2009, the Ejectment Execution Case No.2 of 2009 was filed by the decree-holder for execution of the decree and the writ of possession was issued.
xi) On May 20, 2009, the bailiff filed a report of obstruction and the fact that the delivery of possession could not be given.
xii) On May 21, 2009, the Misc. Case No.4099 of 2009 arising out of the said ejectment case was filed by the decree-holder under Order 21 Rule 97 of the C.P.C. for grant of police help.
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xiii) On June 3, 2009, the resister filed a Misc.
Case No.4485 of 2009 for declaration of his right, title, interest and possession over the premises in suit as a sub-tenant under Order 21 Rule 101 of the C.P.C.
xiv) On July 2, 2009, the learned Executing Court rejected an application for stay of the execution proceeding filed by the resister.
xv) On September 15, 2009, while disposing of the C.O.2399 OF 2009, this Hon'ble Court directed the Executing Court to hear out the said two misc.
cases within two months from the date of communication of the order and that there shall be stay of all further proceedings of the Ejectment Case No.2 of 2009,and xvi) On January 16, 2010, the evidence of both the misc.
cases was closed and the next date was fixed on January 30, 2010 for argument. On that day i.e. on January 16, 2010, the impugned order was also passed by the learned Executing Court.
During argument, the learned Advocates of both the sides have made argument on behalf of the respective parties touching the merit of the two misc. cases. If, I discuss on the submissions touching the merits of the two misc. cases which are pending before the 6 learned Executing Court, the learned Executing Court may be biased by my observations. Therefore, I am refraining myself from discussing the submissions advanced by both the learned Advocates of both the parties on merits of the said misc. cases. Similarly, during argument, the learned lawyers of both the sides have made elaborate submissions relating to the rent control case being R.C. No.150 of 2009 and submit as to whether this application before the R.C. is barred by limitation and whether this application before the rent controller is maintainable. Since, this rent control case is pending before the concerned authority, it will not be wise and proper to discuss either on merits of the case or the fact whether it is barred by limitation. Therefore, I should also refrain myself from discussing the maintainability and the merit of the said R.C. Case No.150 of 2009.
Mr. Chakraborty appearing on behalf of the petitioner / resister has contended that the petitioner has filed an application under Section 26(2) of the West Bengal Premises Tenancy Act, 1997 before the rent controller and that application has been converted into the R.C. Case No.150 of 2009. The rent controller has the exclusive jurisdiction to determine the issues involved in the said R.C. case relating to sub-tenancy and as such the Civil Court has no authority to decide such an issue. Therefore, the said two misc. cases should be stayed. Unless and until, the order of stay is granted, the filing of the said R.C. 7 Case No.150 of 2009 would be frustrated. Therefore, the learned Trial Judge was not at all justified in rejecting the application under Section 151 of the C.P.C. So, the impugned order should be set aside thereby allowing the application under Section 151 of the C.P.C.
Per contra, Mr. Roy Chowdhury, learned Senior Advocate appearing for the decree-holder has referred to the C.O. No.2339 of 2009 and thus, he submits that this Hon'ble Court disposed of the said revisional application directing the Executing Court to hear out both the misc. cases together within a period of two months from the date of communication of the order. Mr. Roy Chowdhury also contends that according to the direction of this Hon'ble Court, both the cases were being proceeded with and the evidence on behalf of both the sides in the said two misc. cases was closed on January 16, 2010. At that time, the two applications under Section 151 of the C.P.C. were moved contending, inter alia, that since the petitioner filed an application under Section 26(2) of the West Bengal Premises Tenancy Act, 1997 before the rent controller and since the said proceeding is pending, the two misc. cases should be stayed till the disposal of the said R.C. Case. This is nothing but a dilatory tactics to resist the decree for unending period. It is also contended by Mr. Roy Chowdhury that such applications were filed when the learned Executing Court was going to dispose of the 8 said two misc. cases as per direction of the Hon'ble Court. Mr. Roy Chowdhury also contends that the suit was instituted under the provisions of the West Bengal Premises Tenancy Act, 1956 and so the said proceeding before the rent control authority is not maintainable under the provisions of the 1997 Act.
Just indicated earlier I also refrain from discussing whether the R.C. Case No.150 of 2009 is maintainable because it is to be decided by the concerned authority.
What I find from the above observations is that the petitioner was not a party to the Ejectment Suit No.170 of 1995. For that reason, the execution of the decree has been resisted by the petitioner. It has filed the application under Order 21 Rule 101 of the C.P.C. to determine its status with regard to the premises in the execution proceeding. The learned Executing Court has closed the evidence and fixed the next date on January 30, 2010 for hearing argument on that misc. case also. So, the fate of the petitioner with regard to the premises in the execution case shall be decided. The petitioner is within its right to place its contention under Order 21 Rule 101 of the C.P.C. and it has exercised its right. This is an independent proceeding with regard to the steps under Section 26(2) of the 1997 Act. The learned Executing Court is within his competence to dispose of the same independently irrespective of the recourse adopted by the petitioner. There is a direction of the Hon'ble Court to dispose 9 of the same within a period of two months from the date of communication of the order passed in the said civil revision. So, I do not find any illegality committed by the learned Executing Court in passing the impugned order.
Mr. Chakraborty also contends that the ground of subletting as claimed by the petitioner depends on the fate of the said proceeding under Section 26(2) of the said Act. By referring to the decision of another C.O. being C.O. No.2858 of 2005, he submits that the misc. cases should be stayed till the decision of the said R.C. proceeding. Mr. Chakraborty has contended that, unless and until, the exclusive jurisdiction provided under Section 26(2) of the 1997 Act is exercised by the concerned authority, his client will be seriously prejudiced.
Form the materials on record, I find that the Civil Revision Case No.2339 of 2009 was disposed of by this Hon'ble Court by the order dated July 31, 2009. But at that time even, the applicant did not mention the case number of the R.C. case. Even no copy of the said application of the said proceeding was ever served upon the decree-holder.
During argument, Mr. Roychowdhury has referred to the decision of M/s. Shalimar Tar Products Ltd. v. H.C. Sharma & ors. reported in AIR 1988 SC 145 and the decision of Shantilal Rampuria & ors. v. M/s. Vega Trading Corporation & ors. reported in AIR 1989 SC 1819 with regard to the requirement of express consent in 10 writing by the landlord for subletting. Since, these are very much related to the misc. case under Order 21 Rule 101 of the C.P.C. filed by the petitioner and this misc. case is to be disposed of by the learned Trial Judge, I am not discussing these two decisions. Similarly, Mr. Roychowdhury has also referred to the decisions of 1998 CWN 54 AND 1999(1) CHN 365 as to the limitation of the application under Section 26(2) of the 1997 Act. I am also refraining myself from discussing the limitation point of the said R.C. Case number for the reasons already stated.
Having considered the above submissions of both the sides, I find from the C.O. No.2339 of 2009 that even at that stage, the petitioner did not mention that it instituted a proceeding under Section 26(2) of the 1997 Act. Nor did it supply any copy of the said application upon the decree-holder. But the application for stay was moved mentioning the fact that it lodged a proceeding under Section 26(2) of the said 1997 Act without any reference or copy of the application under the said Act. Such steps were adopted by the judgment debtor when the learned Executing Court was going to dispose of the two misc. cases shortly as per directions of this Hon'ble Court. Therefore, I am of the view that the petitioner has adopted a dilatory tactics to prolong the litigation for an unending period. I have stated earlier that the right, title, interest and possession of the property under execution are to be determined in the Misc. Case No.4485 of 2009. 11 If the verdict of the said misc. case goes against the petitioner, there is a provision for filing a misc. appeal by the petitioner. Therefore, the petitioner is not remediless with the disposal of the said misc. cases. On the other hand, if the prayer for stay is granted, it will be a violation of the order of this Hon'ble Court in the said C.O. Therefore, I am of the opinion that the learned Trial Judge was justified in rejecting the applications for stay.
Under the circumstances, there is no scope of interference with the impugned order.
This revisional application is, therefore, dismissed. Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)