Calcutta High Court (Appellete Side)
Smt Aloybala Ghosh vs Goutam Sen & Ors on 17 January, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
CO No. 1477 of 2017
SMT ALOYBALA GHOSH
-Versus-
GOUTAM SEN & ORS.
For the Petitioner: Mr. Tarak Nath Halder,
Mr. Animesh Paul
Heard on: January 09, 2019.
Judgment on: January 17, 2019.
BIBEK CHAUDHURI, J. : -
1.Legality, validity and propriety of an order dated 28th September, 2017 passed by the learned Civil Judge (Junior Division), 4th Court at Sealdah in Ejectment Suit No.67 of 2007 is under challenge at the instance of the plaintiff/petitioner in the instant revision.
2. By order dated 28th February, 2017, the learned trial judge disposed of a petition filed by the defendants/opposite parties under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as the said Act) holding, inter alia that the defendants are defaulters in payment of rent in respect of the suit property.
3. The petitioner as plaintiff filed a suit for eviction against the defendants/opposite parties on the ground of default and reasonable requirement which was registered as Ejectment Suit No.67 of 2007. It is 2 alleged in the plaint that the opposite parties are defaulters in payment of rent since May 2001.
4. The opposite parties entered appearance in the suit and filed a petition under Section 7(2) of the said Act raising dispute with regard to the period of default as alleged by the petitioner with a prayer to determine the arrears of rent. It was specifically averred by the opposite parties that the father of the proforma defendant received rent up to the month of September 2007 by issuing rent receipt. Thereafter, he refused to accept the rent against rent receipt.
5. The petitioner filed a written objection against the above stated petition wherein he specifically denied the averment made by the opposite parties regarding payment of rent up to the month of September 2007 against valid rent receipt and reiterated her case alleging that the opposite parties are defaulters since May 2001.
6. Learned trial judge on the basis of the abovementiond petition and written objection as well as the evidence adduced on behalf of the petitioner and the opposite parties held that the opposite parties are not defaulters in payment of rent since May 2001 as alleged by the petitioner.
7. It is pertinent to mention here that the instant matter appeared for hearing on 20th December, 2018 in presence of the learned Advocate for the petitioner. The opposite parties were found absent in spite of service of notice upon them. On the last date of hearing, the petitioner filed a supplementary affidavit annexing the copies of deposition of the witnesses on behalf of the opposite parties and the petitioner in the said proceeding under Section 7(2) of the said Act.
8. Assailing the impugned order, learned Advocate for the petitioner submits that the learned trial judge committed gross illegality in holding the opposite parties not defaulters on the basis of solitary rent receipt 3 allegedly issued by the husband of the petitioner by misplacement of the burden of proof.
9. It is further submitted by the learned advocate for the petitioner by drawing my attention to the copy of the evidence adduced by the brother of the defendant No.1 that the said witness in his cross examination clearly admitted that the opposite parties would be unable to produce any rent bill issued by the petitioner or her deceased husband during the period May 2001 to August 2007. It is also submitted by the learned advocate for the petitioner that the witness on behalf of the petitioner stated in her examination-in-chief that the said rent receipt for the month of September 2007 is a manufactured and forged document. She also denied the suggestion made on behalf of the opposite parties during her cross examination that had the counterfoil of the rent receipt book been produced, it would transpire that her father received rent on behalf of the petitioner till September 2007.
10. Having heard the submission made by the learned Advocate for the petitioner and on perusal of the impugned order, it is ascertain that the learned trial judge accepted the pleading of the parties to the effect that they paid rent to the husband of the petitioner No.1 up to the month of September 2007. Such finding was arrived at on the basis of a rent receipt purportedly issued by the husband of the petitioner No.1 on 15th September, 2007. The learned trial judge did not consider that the petitioner disputed the genuineness of the said rent receipt (exhibit-1) and OPW1 stated on oath that the said rent receipt was manufactured and forged.
11. Learned trial judge also failed to consider that the opposite parties could not produce even a single rent receipt during the period between May 2001 to August 2007.
412. It is needless to say that in an eviction suit, initial burden of proof rests upon the plaintiff to prove the grounds of eviction. Default in payment of rent being one of the grounds for eviction, it is for the plaintiff to prove that the defendants/tenants is a defaulter in payment of rent. Section 7 curves out an exception when a tenant can get the benefit of protection against eviction on the ground of default. If the tenant seeks to get the benefit of Section 7 of the said Act, it is for him to discharge the burden by adducing evidence. In the instant case, the plaintiff/petitioner has alleged that the defendants had defaulted in payment of rent since May 2001. The defendants/opposite parties came up with an application under Section 7(2) of the said Act praying for determination of arrear rent with a specific pleading that they had amicably paid rent to the husband of the petitioner up to September 2007 against valid rent receipt. Therefore, in a proceeding under Section 7(2) it is for the defendant/tenant to prove the period up to which he paid rent to the landlord.
13. In the instant case, learned trial judge failed to appreciate that the petitioner had disputed genuineness of the purported rent receipt for the month of September 2007. Under such circumstances, the learned trial judge ought to have considered the authenticity of the said rent receipt by taking recourse of lawful comparison of the alleged signature of the husband of the petitioner on the purported rent receipt for the month of September, 2007 with his admitted signature on some document. She might have called upon the petitioner to produce certain document on which admitted signature of the husband of the petitioner appears and compare the rent receipt with such admitted signature either by himself or by appointment of an expert. The learned trial judge also could have asked the opposite parties to produce any other rent receipt duly signed by the husband of the petitioner in respect of some undisputed month and compared the signature with such admitted signature of the husband of the petitioner.
514. When execution of a document, viz purported rent receipt for the month of September 2007 is disputed by the petitioner, the learned trial judge ought not to have relied on a solitary rent receipt allegedly issued for the month of September 2007.
15. In view of the above discussion, I have no other alternative, but to hold that the impugned order suffers from the gross illegality and material irregularity. Accordingly the order dated 28th September, 2017 passed the learned Civil Judge (Junior Division), 4th Court at Sealdah in ejectment Suit No.67 of 2007 is set aside. The revisional application is accordingly allowed however, without cost.
16. The learned trial judge is directed to rehear the petition under Section 7(2) of the said Act only on limited point to adjudicate upon the question of authenticity and genuineness of the purported rent receipt (exhibit-1) dated 15th September, 2007 and come to a finding as to whether the said rent receipt was actually issued by the husband of the petitioner or not in the light of the observation made hereinabove and determine the issue of period of default made, if any in payment of rent.
17. Since the ejectment suit is pending since 2007 and even the petition under Section 7(2) has not been disposed of as yet, the learned trial judge is directed to dispose of the petition under Section 7(2) of the said Act with utmost expedition and preferably within 3 months from the date of communication of this order.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Bibek Chaudhuri, J.)