Calcutta High Court (Appellete Side)
M/S. Vishwamitra Ram Kumar vs Golam Sarwar & Anr on 30 March, 2017
Author: Arijit Banerjee
Bench: Arijit Banerjee
In The High Court At Calcutta Civil Revisional Jurisdiction Appellate Side CO 932 of 2015 M/s. Vishwamitra Ram Kumar
-Vs.-
Golam Sarwar & Anr.
Coram : The Hon'ble Justice Arijit Banerjee
For the petitioner : Mr. Hiranmoy Bhattacharjee, Adv.
Mr. S. Bhattacharjee, Adv.
Mr. Lutful Haque, Adv.
For the opposite parties : Mr. Sabyasachi Bhattacharjee, Sr. Adv.
Ms. Debaleena Chatterjee, Adv.
Mr. Ranjit Chowdhury, Adv.
Heard On : 08.05.2015, 19.06.2015, 13.07.2015, 21.07.2015
08.02.1017, 16.02.2017, 02.03.2017
CAV On : 28.03.2017
Judgment On : 30.03.2017
Arijit Banerjee, J.:-
(1) In this revisional application the petitioner challenges orders dated 9 February, 2015 and 9 March, 2015 passed in Ejectment Execution Case No. 69 of 2014 by the Learned 6th Bench, Small Causes Court at Calcutta. By the said orders the Learned Court below directed the petitioner/decree-holder to hand over possession of the suit property to the opposite parties/judgment debtors upon recording an undertaking to the effect that the opposite parties will give back possession of the suit property to the petitioner within one month from the date of receiving notice that the petitioner has obtained possession of the remaining rooms in the suit building. The material facts of the case culminating in the present application are as follows.
(2) The petitioner firm is the owner of Premises No. 16A Radha Bazar Street, Kolkata (hereinafter referred to as the 'suit building') which comprises of a one storied building. At all material times, the entire building was tenanted and there were eight tenants including the father/predecessor-in-interest of the opposite parties. The petitioner was desirous of putting up a new building on the concerned land after demolition of the existing one. The petitioner negotiated with its tenants but could obtain vacant possession only from one of the eight tenants. The petitioner filed seven similar suits in the City Civil Court for evicting the other seven tenants. One of the suits was Ejectment Suit No. 165 of 1990 filed by the petitioner against Md. Hasim who was the predecessor- in-interest of the opposite parties herein.
(3) The City Civil Court at Calcutta heard the seven suits analogously and dismissed them. The petitioner's appeals to this Court were also dismissed. The petitioner carried the matter to the Hon'ble Supreme Court and a common judgment and order dated 5 April, 2007 was passed by the Apex Court. The operative portion of the Supreme Court's judgment and order reads as follows:-
"We therefore allow these appeals and hold that the landlord is entitled to decrees for eviction under Section 13(1)(f) of the Act. We direct the trial court to expeditiously pass decrees and consequential orders in terms of Section 18A of the Act when moved in that behalf by the landlord. We direct the Trial Court to pass the consequential decrees within three months of it being approached either with the existing plan or with the modified plan by the landlord as we have directed above. The parties will appear before the trial court for seeking appropriate directions for further appearance on 14.05.2007."
(4) In the aforesaid judgment, the Apex Court recorded the petitioner's statement that it proposed to provide all the tenants with rooms on the ground floor of the re-constructed building.
(5) Armed with the order of the Hon'ble Apex Court the petitioner approached the learned Court below which, by a common judgment and order dated 23 November, 2007 decreed all the seven suits under Sec. 13(1)(f) of the West Bengal Premises Tenancy Act, 1956 (in short the 'WBPT Act'). The petitioner/plaintiff was directed to obtain the sanctioned plan from the concerned authority and to produce the same in Court to within three months. The defendant being the predecessor-in- interest of the opposite parties was directed to vacate the suit premises within one month from the date of production of the sanctioned plan by the plaintiff. The plaintiff was directed to put back the defendant in possession in the re-constructed building within one year from the date of delivery of possession by the defendant to the plaintiff. It was further ordered in case of any neglect or failure to deliver possession of the shop rooms either by the tenant/defendant or by the landlord/plaintiff within the stipulated period, possession will be delivered by putting the decree into execution on an application of either of the parties. (6) The petitioner gave production of the sanctioned plan to all the defendants including the said Md. Hasim. However, the said tenant refused to vacate the suit premises. The petitioner filed Ejectment Execution Case No. 86 of 2008 in the Small Causes Court at Calcutta and obtained vacant possession of the suit premises on 15 November, 2011. In 2014 the opposite parties (the original defendant being their father and predecessor-in-interest having passed away in the meantime) filed Ejectment Execution Case No. 69 of 2014 in the Small Causes Court at Calcutta claiming back possession of the suit premises from the petitioner. They contended that the eviction decree required the petitioner to put back the opposite parties in possession of the suit premises within one year from the date of obtaining possession from the opposite parties or their predecessor-in-interest. Since the petitioner failed to do so, that part of the decree was required to be executed through the process of Court. The impugned order dated 9 February, 2015 was passed on the said application of the opposite parties. The operative portion of the impugned order reads as follows:-
"After going through the decree passed by the Ld. 4th Judge, City Civil Court, Calcutta I am convenienced that the present petitioners i.e. the defendants of Ej. Suit No. - 165 of 2009 has right to file execution case for recovery of possession of room within newly constructed building if the plaintiff would fail to deliver possession of room within one year from the date of recovery of possession of the suit property. Admittedly, the opposite party/plaintiff recovered possession of the suit property on 15.11.2011 till date they failed to start demolition of the suit property as because they could not recover possession of the other rooms in respect of which the decree has been passed. On perusing the record I find that a tabular execution application has been filed by the petitioners. The suit property is a commercial property, and, I am of the opinion that it will not be proper to keep the petitioners/defendants out of possession until the opposite party/plaintiff recovers possession of the rest rooms and reconstruct the new building after demolishing the old one. At the same having regard to the fact that the plaintiff/petitioner is not responsible for the default, I am not ready to grant a blanket order of recovery of possession to the petitioners/defendants.
Considering all aspects, it is decided, that the petitioners/defendants are entitled to restoration of possession of the suit property on giving undertaking that they will hand over possession of the suit property to the defendant within one month from the date of receipt of notice that the plaintiff has obtained possession of the rest rooms and ready for demolition of the old building and reconstruction of the building.
I make it clear that if the petitioners/defendants vacate the suit property in future in terms of their undertaking they will be at liberty to file execution case after expiry of one year from the date of vacating the property in terms of the decree passed by Ld. 4th Judge, City Civil Court, Calcutta."
(7) A further order dated 9 March, 2015 was passed which is also impugned in the present application, the operative portion whereof reads as follows:-
"Defendant/petitioner has also filed a petition for accepting the undertaking in which he has stated that he is giving undertaking that he will hand over possession of the suit property to the plaintiff within one month from the date of receipt of notice that the plaintiff has obtained the possession of the rest rooms of the suit building. Let, the petition containing undertaking be kept with the record. Plaintiff/opposite party is directed to hand over possession of the suit property to the defendant/petitioner within 15 days from this date"
(8) Being aggrieved the petitioner/decree-holder has filed the present revisional application challenging the aforesaid two orders. When the application was moved, an interim order dated 8 May, 2015 was passed staying all further proceedings in Ejectment Execution Case No. 69 of 2014 till 31 July, 2015. On 19 June 2015 the said interim order extended till disposal of this application or until further order whichever was earlier.
(9) Appearing on behalf of the petitioner Mr. Hiranmoy Bhattacharjee, Learned Counsel submitted that apart from the opposite parties there are six other judgment debtors against whom execution cases were initiated. In case of three out of the six, possession has been obtained by the petitioner. In three remaining cases, possession is yet to be obtained by the petitioner by reason of various applications having been filed, e.g., under Sec. 47 and O. 21 R. 97 of the CPC. According to Learned Counsel, the period of one year within which the petitioner was obliged to rehabilitate the tenants in the re-constructed building, would commence from the date of all the tenants vacating the suit building. Since all the tenants have not yet vacated the suit building, the one year period has not begun to run and the order impugned is beyond the scope of the decree, submitted Learned Counsel. The landlord has the obligation of putting back the tenants in possession only in the reconstructed building. The landlord is doing everything to obtain vacant possession. Learned Counsel submitted that if the impugned order is allowed to stand, the other tenants from whom possession has been recovered through the process of Court will also pray for similar orders and if such orders are passed to put back the tenants in possession, the whole process and effort of obtaining vacant possession of the suit building will be nullified. Accordingly, learned Counsel prayed for quashing of the impugned order. (10) Appearing for the opposite parties, Mr. Sabyasachi Bhattacharjee, Learned Sr. Counsel submitted that the order under challenge is perfectly justified and calls for no interference. He referred to Secs. 18 and 18A of the West Bengal Premises Tenancy Act, 1956, the relevant portions whereof read as follows:-
"S. 18. When a Tenant is entitled to restoration and compensation.-
(1)Where the landlord obtains delivery of possession of any premises from the tenant in pursuance pf a decree obtained (under clause (f) or clause (ff)) of sub-section (1) of Section 13 and the building or re-building or additions and alterations are not commenced or the premises are not occupied by the landlord or any person for whose benefit the premises are held, as the case may be, within six months of the date of vacation of the premises by such tenant, or the premises having been so occupied by the landlord or any person for whose benefit the premises are held are re-let within (ten years) of the date of such occupation to any person other than such tenant without the permission of the Controller obtained in the prescribed manner, the Controller may, on the application of such tenant made within nine months of his vacating the premises (or where of such re-letting) and after giving the landlord an opportunity of being heard, by order direct the landlord to put such tenant in possession of the premises, if not re-let, within fourteen days of the date of the order, or to pay him such compensation as may be deemed adequate to the Controller in case the Premises have been re-let.
18A.Restoration to tenancy where decree for recovery of possession is passed under clause (f) of sub-section (1) of Section 13.- (1) Where the Court passes a decree for recovery of possession of any premises on the ground mentioned in clause(f) of sub-section (1) of section 13, it shall specify the period within which the building or re- building, or the additions or alterations, on or to such premises shall be completed and may on the application of the landlord extend such period from time to time for good and sufficient reasons.
(2) On the completion of the building or re-building, or the additions or alterations, on or to such premises the Controller may, on the application of the tenant who has been ejected from such premises made within three months of the date of such completion and after giving the landlord an opportunity of being heard, by order direct the landlord to put such tenant in possession of such premises or such part thereof as the Controller may specify in his order within fourteen days of the date of the order."
(11) Learned Counsel submitted that admittedly the petitioner obtained possession of the suit property from the opposite parties or their predecessor-in-interest on 15 November, 2011. As per the decree of eviction, the petitioner was obliged to put back the opposite parties in possession within one year from that date. However, the petitioner has failed to do so and has in fact, not even commenced reconstruction of the building. The petitioner must have been aware of the risk of some of the tenants not vacating even after the ejectment decree and resisting the execution of the decree in various manners. This was not an unforeseen risk. Hence, the petitioner is not entitled to take shelter behind non-delivery of possession by some of the tenants of the portions under their occupation. There is a clear 'failure' on the part of the petitioner within the meaning of Secs. 18 and 18A of the WBPT Act, 1956 and hence, the learned Court below rightly applied the principles of the aforesaid sections and ordered restoration of possession to the opposite parties. He further submitted that the interest of the petitioner has been sufficiently protected by taking an undertaking from the opposite parties that they will handover possession of the suit property to the petitioner within one month from the date of receipt of notice that the petitioner has obtained possession of the remaining rooms and is ready for demolition of the old building and construction of the new building. Learned Senior Counsel prayed for dismissal of the revisional application. (12) I have considered the rival contentions of the parties. (13) The eviction decree in question directed the petitioner/plaintiff to put back the tenants in possession in the reconstructed building within one year from the date of delivery of the possession by the tenants to the petitioner. (Emphasis is mine). On a careful reading of the said direction it can only mean that the one year period would start running from the date when all the tenants have made over vacant possession of the petitioner as without the same the petitioner would not be in a position to start demolition and re-construction work. It is not that the petitioner is sitting idle after obtaining possession from the some of the tenants. The petitioner is pursuing the execution cases against other tenants. Indeed, the petitioner is gaining nothing by delaying demolition of the old building and putting up the proposed new building. It is not the case of the opposite parties that the petitioner having obtained vacant possession from some of the tenants is utilizing such space gainfully for other purposes. In my opinion, the petitioner cannot be faulted for not starting the demolition of the old building or reconstruction of the new building or for not putting the tenants who are out of possession back in possession in the new building. The petitioner is clearly prevented by sufficient cause from doing so. (14) The other point to be noted and on which great emphasis has been laid by Learned Counsel for the petitioner is that the petitioner is required to rehabilitate the tenants in the re-constructed building. There is no obligation of the petitioner to put back the tenants in possession in the existing building. If the petitioner has been unable to commence or complete reconstruction of the building for no fault of its own and for reasons beyond its control, it cannot be said that the petitioner has deliberately not commenced the re-building process and hence the principles of Sec. 18 of the WBPT Act, 1956 would not apply. Further the application for being put back in possession appears to have been made by the opposite parties or their predecessor-in-interest before the learned Court below much beyond the period prescribed under Sec.
18. (15) Further, Sec. 18A of the 1956 Act comes into play only after construction of the new building or additions or alterations thereto is complete. In the present case, the reconstruction work has not yet commenced. Hence the principles of Sec. 18A would have no manner of application to the present case. Under the said section when a decree for eviction is passed under Sec. 13(1)(f) of the 1956 Act, the landlord has the obligation to put the tenants back in possession in the re-constructed building. As observed by the Hon'ble Apex Court in the judgment and order dated 5 April, 2007 referred to above, any attempt by the landlord to defeat his obligation under Sec. 18A of the 1956 Act cannot be encouraged and should be put down with an iron hand. The landlord will be pinned down to his obligations under Sec. 18A of the said Act and would not be allowed to extricate himself from it or delay the performance of his obligations by resort to devious means. However, in the facts of the present case, the opposite parties have not been able to point out any devious ploy adopted by the petitioner/plaintiff to shirk or wriggle out of its obligations under the eviction decree or to delay the performance of its duty under the decree.
(16) I am also inclined to agree with the submission of learned Counsel for the petitioner that putting back the opposite parties in possession would defeat and rendering nugatory the entire attempt and process initiated by the petitioner to obtain possession of the suit premises from the tenants and will prove to be counter-productive. Once the tenants including the opposite parties who are out of possession by reason of the eviction decree having been executed against them, are put back in possession, albeit, upon their undertaking to vacate within one month from receipt of notice from the petitioner that the other tenants have vacated, the same is likely to give rise to a fresh round of litigation. This would not be desirous at all.
(17) I have already opined that there is no failure or neglect on the part of the petitioner in complying with the terms of the eviction decree passed by the learned Court below. The one year period for complete reconstruction has not yet begun to run. In that view of the matter the learned Court below committed material irregularity and an error on the face of the record in directing the petitioner to put the opposite parties back in possession in the existing building. By doing so, the learned Court below acted contrary to the terms of the decree and has acted beyond jurisdiction. The order impugned cannot be sustained and is hereby set aside.
(18) CO. 932 of 2015 is accordingly disposed of. There will, however, be no order as to costs.
(19) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
(Arijit Banerjee, J.)