Calcutta High Court (Appellete Side)
Satya Prakash Dutta vs Smt. Biju Devi Banshali And Others on 26 February, 2025
AD-18
Ct No.16
26.02.2025
TN
SAT 30 of 2025
IA No: CAN 1 of 2025
CAN 2 of 2025
Satya Prakash Dutta
Vs.
Smt. Biju Devi Banshali and others
Mr. Shyamal Chakraborty,
Mr. Debajyoti Mondal
....for the appellant
Mr. Anshunath Chakraborty,
Mr. Gourab Mukhopadhyay
....for the respondents
1. The present second appeal will be heard on the following substantial questions of law:
(i) Whether the learned courts below substantially erred in law in striking out the defence of the defendant/appellant under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 in view of the non-compliance of Section 17(1) of the said Act despite no substantial adjudication being made on the application filed by the defendant/appellant under Section 17(2), in the teeth of the settled proposition of law that once an application under Section 17(2) is made, it is the incumbent duty of the court to adjudicate the same on merits and decide as to what is the 2 actual rent payable and upon such adjudication, the said amount, which is decided to be the rent payable under Section 17(2), being the amount in which the liability under Section 17(1) merges.
(ii) Whether the learned courts below proceeded on an erroneous premise in decreeing the suit on the ground of default in payment of rent upon striking out the defence of the appellant was under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 despite there being no substantive adjudication under Section 17(2), although such an application was filed by the defendant/appellant in time.
2. In view of a prima facie case having been made out, there shall be stay of all further proceedings in Ejectment Execution Case No. 134 of 2018 pending before the learned Judge, Fourth Bench, Presidency Small Causes Court at Calcutta till disposal of the application. The plaintiff/respondent shall file her affidavit-in-opposition within a fortnight from date; reply, if any, shall be filed within a week thereafter.
3. The application shall be listed for hearing on March 24, 2025 before the learned Single Judge having determination, subject to the convenience of the said Bench.
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4. It is made clear that the question of imposition of occupation charges as a condition for grant of stay is kept open for being decided finally at the time of final hearing of the present application.
(Sabyasachi Bhattacharyya, J.) (Uday Kumar, J.)