Calcutta High Court (Appellete Side)
Sukhendu Paul & Anr vs Smt. Tora Mitra & Anr on 3 February, 2020
1 06. 03.02.2020
mb In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
C.O. No. 1857 of 2018
Sukhen Paul @
Sukhendu Paul & Anr.
-Vs.-
Smt. Tora Mitra & Anr.
Mr. Asit Baran Raut,
Ms. Ishita Raut,
Mr. C.B. Biswas,
Mr. Tapas Basak
...for the petitioners
Mr. Purbangshu Chandra Mitra,
Ms. Piyali Mitra
...for the opposite party no. 1
The present application under Article 227 of the Constitution of India has been filed by the defendants-tenants in an eviction suit, inter alia, on the ground of default and reasonable requirement.
Learned counsel appearing for the petitioners submits that, while passing the impugned order, the trial court did not take into consideration the various documents, exhibited by the petitioners and merely relegated the adjudication of the vital issue, as to whether there should be abatement of rent on the ground of non-providing several facilities pertaining to the tenancy to the petitioners, which were vital for the relevant adjudication, to the hearing of the suit. 2 It is argued on the basis of a decree passed by a civil court, albeit ex parte, which is annexed at page 41 of the instant revisional application, that a competent civil court having jurisdiction has already decided this issue and has held in favour of the present petitioners, passing a decree declaring that the petitioners are entitled to get amenities of underground reservoir for the purpose of storing the filtered water and lifting the same through motor pump to the overhead tank and the defendants therein (present opposite parties) are bound to bear 50 per cent cost for making the same.
A further decree, declaring that the present petitioners were entitled to get the kitchen, being a part and parcel of the tenancy, was also passed by the civil court, apart from a decree for permanent injunction restraining the defendants therein, that is the present opposite parties, from making any disturbance in the petitioners using the common areas of the suit premises and/or from making any disturbance in availing uninterrupted supply of filtered water through the overhead tank to the suit premises and/or from dispossessing the plaintiffs (present petitioners) from their possession in the suit premises without due process of law.
The said decree further directed the opposite parties to allot a kitchen to the plaintiffs therein, that is, the present petitioners, in terms of the tenancy agreement and to make reservoirs, as agreed upon by the parties, within two months from that date. 3
It is submitted on behalf of the petitioners that the said decree and the legal consequences following from the same were not considered at all by the trial court while adjudicating the question of abatement. In view of the said decree and other evidence produced by the petitioners before the trial court substantially establishing that the facilities, mentioned in the decree, were withheld from the petitioners, which necessitated the decree in the first place, the trial court ought to have considered the question of abatement of rent on such ground, due to the petitioners having been deprived from user of such facilities by the opposite parties.
Learned counsel for the opposite party no. 1 submits that the present revisional application is merely part of dilatory tactics adopted by the petitioners. It is submitted that in the event the petitioners had any grievance regarding the civil court's decree, as mentioned above, not being implemented, the petitioners were at liberty to approach the said court itself for execution of the decree and not to take up such matter in a proceeding under Sections 7(1) and 7(2) of the West Bengal Premises Tenancy Act, 1997. As such, it is argued that the issue was rightly relegated to the hearing of the suit itself.
However, it appears from the impugned order itself that the trial judge paid merely lip-service to the consideration of the evidence, 4 since the only finding which was arrived at by the trial court on such substantive evidence was merely the rate of rent and nothing else.
It is obvious that the cardinal issue involved, being the abatement, which the petitioners are entitled to from such rent, was not touched upon at all by the trial court, although the same was a necessary component in the adjudication under Section 7(2) of the Act of 1997, in order to decide the arrears due to the opposite parties from the petitioners.
In fact, it is prima facie evident from the civil court's decree passed previously, that the petitioners are entitled to an abatement, since provisions are there in the tenancy agreement itself, for providing water and for construction of an underground reservoir and accordingly the civil court directed the present opposite parties to do so.
Undoubtedly, learned counsel for the opposite party no. 1 is justified in submitting that the petitioners can always approach the civil court passing such decree for execution of the decree, however, that does not absolve the petitioners from the liability to comply with the said decree.
Moreover, the present challenge is not restricted to the implementation of the civil court's decree but it was necessary for the trial court to read between the lines to construe the implication of the 5 civil court's decree, which is obviously that such services, as directed therein, were not being provided to the petitioners.
As such, it was the incumbent duty of the trial court to decide the question of abatement, upon consideration of all the materials produced before the trial court, and to decide the arrears of rent due and payable by the petitioners only upon deciding the question of abatement on the evidence already on record.
Hence, the impugned order cannot be sustained in law. It is made clear that since both the opposite party nos. 1 and 2, inter alia, are represented jointly in the court below, since both are plaintiffs in the court below, the representation on behalf of the opposite party no. 1, who is the mother of the opposite party no. 2, is deemed to represent the interest of the opposite party no. 2 as well and, as such, fresh service on the opposite party no. 2 is not required at all.
In view of the aforesaid observations, C.O. No. 1857 of 2018 is allowed on contest, thereby setting aside the impugned order, being order No. 35 dated May 11, 2018, and directing the trial court to re- adjudicate the applications under Sections 7(1) and 7(2) of the West Bengal Premises Tenancy Act, 1997, on the evidence already on record, upon hearing both the parties afresh, and to decide the said applications upon consideration of the question of abatement of rent 6 and thereafter to pass a reasoned order, within one month from the date of communication of this order to the court below.
There will be no order as to costs.
Urgent photostat certified copy/copies of this order, if applied for, be made available to the party/parties upon compliance of necessary formalities.
(Sabyasachi Bhattacharyya, J.)