Calcutta High Court
Synthetic Plywood Industries (P) Ltd. vs Smt. Manjulika Bhaduri & Ors. on 12 March, 1998
Equivalent citations: (1998)1CALLT350(HC), 1998(1)CHN387
Author: B. Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT B. Bhattacharya, J.
1. The revisional application under section 115 of the Code of Civil Procedure has been assigned to us at the instant of N.K. Bhattacharyya. J. for answering the following questions framed by His Lordship:--
(a) Whether in deciding a matter under section 17(2) of the West Bengal Premises Tenancy Act touching the question of relationship or existence of landlord and tenant and an issue pertaining thereto can be decided as a preliminary issue under Order 14 Rule 2 of the Code of Civil Procedure while disposing of the application under section 17(2) of the West Bengal Premises Tenancy Act?
(b) Whether West Bengal Premises Tenancy Act, being a special statute, and particularly section 17(2) of the Act, being a special provision in that statute will override and get precedence over the general provision under Order 14 Rule 2 of the Code of Civil Procedure?
(c) Whether the law laid down in decisions of Aloka Ghosh v. Inspector General reported in 66 CWN 302, Union of India v. N.K. Chowdhury reported in 79 CWN 371, Paral Banerjee v. Anand Kumar Agarwalla reported in 1979(2) CLJ 297. Btswa Bfiusan Base v. Kusum Agarwalla reported in 1981(1) CLJ 1 and Wanda Gopal Das v. Rabindranath De reported in 1987(1) CHN 362 are no longer good taws and are judgments per incurian?
2. The facts giving rise to the instant application as follows:
The opposite parties filed a suit for eviction against the present petitioner oh the ground inter alia of default in payment of rent under the provision of West Bengal Premises Tenancy Act. (Act) After entering appearance in the aforesaid suit the present petitioner filed an application under section 17(2) of the Act thereby disputing the relationship of landlord and tenant between the parties. In the written statement filed by the petitioner the same dispute was raised and consequently an issue viz. issue No. 10 was framed to the following effect:
"Was there any relationship of landlord and tenant between the plaintiff and defendant No. 1 Company in respect of the suit flat until its alleged determination."
3. At the time of hearing of the aforesaid application under section 17(2) of the Act, the aforesaid issue was also taken up for hearing and evidence was led for the disposal of the aforesaid application and the issue. Ultimately by the order impugned, the learned trial Judge held that petitioner was not a defaulter in payment of rent and no amount was payable by it. The issue as to relation ship of landlord and tenant between the parties was however answered in affirmative in favour of the landlord.
4. Being dissatisfied with the aforesaid order passed by the learned trial Judge, the petitioner has preferred the instant revlsional application and the only question that was agitated before Mr. Justice N.K. Bhattacharyya was that in view of amended provision of Order 14 Rule 2 of the Code of Civil Procedure, (Code) the learned trial Judge acted without jurisdiction in taking up the said issue as a preliminary issue.
5. The petitioner further contended that in view of the amended provision of Order 14 Rule 2 of the Code, the decisions of this court in (a) Aloka Ghosh v. Inspector General (66 CWN 302), (b) Unton of India v. N.K. Chowdhury (78 CWN 371). (c) Parul Banerjce v. A.K. Agarwalla 1979(2) CLJ 297. (d) Biswa Bhusan Bose v. Kusum Agarwalla 1981 (1) CLJ 1 and (e) Nanda Gopal Das v. Rabinaranath Dey 1987(1) CHN 362, are no longer good law.
6. N.K. Bhattacharyya, J. did not agree with the submission made on behalf of the petitioner but in view of the decision of A.K. Nandy, J. In Ram Prosad Bajaj and Ors. V. Development Builders Pvt. Ltd. and Ors. reported in 1991(1) CHN 443 wherein Nandy, J. accepted the aforesaid contention of the petitioner, referred the matter to the Hon'ble the Chief Justice for assigning the same to a Division Bench for its opinion.
7. The matter has thus been assigned before us.
8. Before we proceed to answer the questions referred to us, it will be appropriate to take note of the provision contained in Order 14 Rule 2 of the Code as amended and the provision as it stood prior to amendment of 1976;
Prior to Amendment "Where issues both of law and fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on the issues of law only it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact untlll after the issues of law have been determined."
After Amendment "2(1) Notwithstanding that a case may be disposed of on a preliminary issue, the court shall subject to the provisions of sub-rule (2), pronounce Judgment on all issues.
(2) Where issues both of law and fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-
a) the jurisdiction of the court, or
b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and "may deal with the suit in accordance with the decision on that issue."
9. It will also be apposite to refer to the provisions contained in sections 17, 20, 29(6) and First Schedule of the Act. Those are quoted here-under :--
"section 17. When a tenant can get the benefit of protection against eviction.--(1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in section 13, the tenant (shall, subject to the provisions of sub-sectlon(2), within one month) of the service of the writ of summons on him (or where he appears in the suit or proceeding without the writ of summons being served on him, within one month of his appearance) (deposit in court or with the Controller or pay to the landlord) an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of eight and one third per cent, per annum from the date when any such amount was payable up to the date of deposit, and shall thereafter continue to deposit or pay, month by month, by the 15lh of each succeeding month a sum equivalent to the rent at that rate.
(2) If in any suit or proceeding referred to in sub-section(1) there is any dispute as to the amount of rent payable by the tenant, the tenant shall, within the time specified in sub-section(1), deposit in court the amount admitted by him to be due from him together with an application to the court for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. On receipt of such application, the court shall-
a) having regard to the rate at which rent was last paid, and the period for which default may have been made, by the tenant, make, as soon as possible within a period not exceeding one year, a preliminary order, pending final decision of the dispute, specifying the amount, if any, due from the tenant and thereupon the tenant shall, within one month of the date of such preliminary order, deposit in court or pay to the landlord the amount so specified in the preliminary order, and
b) having regard to the provisions of this Act, make as soon after the preliminary order as possible, a final order determining the rate of rent and the amount to be deposited in court or paid to the landlord and either fixing the time within which the amount shall be deposited of paid or, as the case may be, directing that the amount already deposited or paid be adjusted in such manner and within such time as may be specified in the order.
2(A) Notwithstanding anything contained in sub-section (1) or sub-section(2), on the application of the tenant, the court may, by order,-
a) extend the time specified in sub-section (1) or sub-section (2) for the deposit or payment of any amount referred to therein; b) having regard to the circumstances of the tenant as also of the landlord and the total sum inclusive of interest required to be deposited or paid under subsection (1) on account of default in the payment of rent, permit the tenant to deposit or pay such sum in such instalments and by such dates as the court may fix : provided that where payment is permitted by instalments, such sum shall include all amounts calculated at the rate of rent for the period of, default including the period subsequent thereto up to the end of the month previous to that in which the order under this sub-section is to be made with interest on any such amount calculated at the rate specified in sub-section (1) from the date when such amount was payable up to the date of such order.
(2B) No application for extension of time for the deposit or payment of any amount under clause (a) of sub-section [2AJ shall be entertained unless it is made before the expiry of the time specified therefor in subsection (1) or sub-section (2), and no application for permission to pay in instalment under clause (b) of sub-section (2A) shall be entertained unless it is made before the expiry of the time specified in sub-section (1) for the depositor payment of the amount due on account of default in the payment of rent.
(3) If a tenant falls to deposit or pay any amount referred to in subsection (1) of sub-section (2) within the time specified therein or within such extended time as may be allowed under clause (a) of sub-section (2A), or falls to deposit or pay any instalment-permitted under clause (b) of sub-section (2A) within the time fixed therefor, the court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit.
(4) if a tenant makes deposit or payment as required by sub-section (1), sub-section (2) or sub-section(2A) no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the court but the court may allow such costs as it may deem fit to the landlord;
Provided that a tenant shall not be entitled to any relief under this sub-section if, having obtained such relief once in respect of the premises, he has again made default in the payment of rent for four months within a period of twelve months."
10. Section 20. Special provisions regarding jurisdiction of courts for trial of suits for possession.--"Notwithstanding anything con-tained in any other law, a suit or proceeding by a landlord against a tenant in which recovery of possession of any premises to which this act applies is claimed shall lie to the courts, as set out in (the first schedule) and no other court shall be competent to entertain or try such suit or proceeding."
"Section 29.
1 .....
2.....
3.....
4 .....
5.....
6 The provisions of the Code of Civil Procedure, 1908, shall apply to all suits and proceedings referred to in section 20 except suits or proceedings which lie to the High Court."
The first Schedule-"1) Where the premises are situated on land, wholly within the Ordinary Original Civil Jurisdiction of the Calcutta High Court-
i) Where the value of the suit does not exceed (ten lakh rupees) to the City Civil Court as defined in the City Civil Court Act, 1953 (West Bengal Act XXI of 1953).
ii) Where the value of the suit exceeds (ten lakhs rupees) to the High Court at Calcutta.
(2) Where the premises are situate on land, wholly or partly outside the Ordinary Original Civil Jurisdiction of the Calcutta High Court.the court other than the Calcutta High Court, which would have had jurisdiction to try the suit if this Act were not passed."
11. Therefore, the aforesaid provisions of law quoted herelnabove indicate that whenever a suit fa filed by a landlord against his tenant for eviction on any of the grounds referred to in section 13 of the Act in any court mentioned in section 20 read with First Schedule ,of the Act, it is the duty of the tenant to comply with the requirement of section 17(1) of the Act by depositing or paying an amount calculated at the rate of rent at which it was last paid for the period of default including the period subsequent thereto up to the end of the month previous to that in which such payment or deposit is made with interest as mentioned in the said section. it is also the duty of the tenant to go on paying or depositing an amount equivalent to rent at the rate last paid within 15 of each succeeding month so long the proceeding for eviction will continue. if there is any dispute as to the amount of rent payable by a tenant, in that event, it is the duty of the tenant to raise such dispute within the time specified in section 17(1) of the Act. On such dispute being raised, court will adjudicate such dispute and will determine the amount of rent payable by the tenant. This is now well settled that any type of dispute affecting the amount of rent payable comes within the purview of section 17(2) of the Act. Thus, if a defendant complains that he is not at all a tenant under the plaintiff in such a case he cannot be held liable to pay any rent whatsoever to the plaintiff and as such the said dispute also comes within the purview of section 17(2) of the Act.
12. If a defendant asserts that he is not a tenant at all under the plaintiff, he is however under no obligation to file an application under section 17(2) of the Act inasmuch as section 17 speaks of the obligation of a tenant and not a defendant. But, for non filing of such an application, a plaintiff may very well come up with an application under section 17(3) of the Act for striking out the defence of the defendant on the ground of non compliance with the provisions contained in sections 17(1) and 17(2) of the Act.
13. To protect such a defendant, several Division Bench decisions of this court referred to in the Judgment of N.K. Bhattacharyya. J. have categorically held that the defence of a defendant cannot be struck out under the provision of section 17(3) of the Act if he raises a dispute as to relationship of landlord and tenant between the parties unless issue as to relationship of landlord and tenant between the parties is decided against the defendant. Otherwise, if without deciding the aforesaid issue the defence lg struck out, in that case the defendant will not be able to lead evidence in support of his plea that he is not a tenant under the plaintiff even at the time of trial. Therefore the consistent view of this court for about last 40 years is that if any dispute is raised by a defendant to the aforesaid effect even without filing an application under section 17(2) of the Act, before striking out his defence on the ground of non-compliance of 17(1) of the Act, the court must decide that issue.
14. A defendant intending to take such a defence case also by filing an application under section 17(2) of the Act raise such a dispute and in such a case even if it is held that he is a tenant under the plaintiff then by complying with the direction for payment of all arrears found to be due, he can get protection under section 17(4) of the Act.
15. Mr. Aloke Banerjee, the learned advocate appearing on behalf of the petitioner has contended before us that in view of amended provision contained in Order 14 Rule 2 of the Code, a court cannot decide the aforesaid issue as a preliminary issue. Thus, Mr. Banerjee contends that the decision on the preliminary issue is without Jurisdiction.
16. Mr. Animesh Kanti Ghosal, the learned senior advocate appearing on behalf of the landlord has on the other hand contended that amended Order 14 Rule 2 of the Code does not prohibit trial of any issue, even of fact, as preliminary issue. What it prohibits is the disposal of the main suit on the basis of decision on such preliminary issue without deciding other issues on merit. In support of such contention Mr. Ghosal refers to a decision of this court in Mantu Naik v. B.C. Malty and Another reported in 1997(1) CHN page 1.
17. After hearing the learned Advocates for the parties and after going through the aforesaid provisions quoted above, we find substance in the contention of Mr. Ghosal. Prior to the amendment of 1976, under Order 14 Rule 2 of the Code, a court was competent to dispose of a suit on the basis of decision on an issue of law without settling other issues of fact. It appears that the Law Commission recommended amendment of the aforesaid provision. The recommendation of the amendment was made to avoid delay in disposal of the cases as would appear from the observation of the Law Commission which is quoted hereunder :--
"This rule has led to one difficulty. Where a case can be disposed of on a preliminary point, (issue) of law, often the courts did not inquire into the merits, with the result that when, on an appeal against the finding on the preliminary issue the decision of the court on that is reversed, the case has to be remanded to the court of first instance for trial on the other issues. This causes delay. it is considered that this delay should be eliminated by providing that a court must give Judgment on all issues, excepting ofcourse, where the court finds that it has no Jurisdiction or where the suit is barred by any law for the time being in force."
18. The said recommendation was accepted and accordingly Order 14 Rule 2 was amended. The object and reason of such amendment is as follows:--
"Clause 67--sub-clause (II)--Rule 2 is being substituted to provide that although a suit can be disposed of on a preliminary issue, the court shall ordinarily pronounce Judgment on all issues; but where any issue relating to the Jurisdiction of the court or a bar created by any law for the time being in force the court may postpone settlement of the other issues untill the preliminary issue with regard to the Jurisdiction of the court or such bar has been determined and the court may deal with the suit in accordance with the determination of such preliminary issue."
19. Therefore, as the amended Order 14 Rule 2 stands, a court can dispose of a suit on the basis of decision on a preliminary issue if such issue is an issue of law relating to the Jurisdiction of court or to a bar to the suit created by any law for the time being in force. Only under the aforesaid two conditions, a court can dispose of a suit on the basis of its decision on preliminary issue. But the aforesaid provision does not prohibit a court from deciding even an issue of fact if the court does not dispose of the suit on the basis of decision of such issue. There is no dispute that an issue as to relationship of landlord and tenant between the parties is essentially an issue of fact. Therefore, after the decision on such issue, even if it is answered in a negative, in view of the aforesaid provision of the Code, a court cannot dismiss the suit then and there on the basis of such decision but is bound to deliver judgment on all issues framed in the suit.
20. Thus, the aforesaid amended provision contained in Order 14 Rule 2 of the Code does not put any restriction on court to decide a particular issue of fact as a preliminary issue if it does not dispose of the entire suit on the basis of decision made thereon. It appears that unless such an issue, if raised in a suit, is decided as a preliminary issue, the provision contained in section 17 of the Act cannot be given effect to.
21. Therefore, the Division Bench decisions referred to in the judgement of N.K. Bhattacharya, J. cannot be said to have lost force in view of amendment of Order 14 Rule 2 of the Code. In the decision of Mantu Naik (supra) Chatterjee, J. In our opinion, has rightly held that the court has inherent power to regulate its procedure in such a manner as to shorten litigation and minimise expenses and result in substantial justice to the litigant parties. In our opinion, the aforesaid principle applies also to a case where preliminary hearing of an isolated issue is necessary in order to give effect to a particular provision of a statute, (in the instant case section 17 of the Act). There is no doubt that in view of section 29[6) of the Act, the Code of Civil Procedure applies to a suit for eviction. Since the aforesaid provisions contained in Order 14 Rule 2 of the Code is merely a procedural part of the Code and at the same time it is in no way conflict with the decision of a court to hear an issue of fact as preliminary issue, in our opinion, there is no substance in the contention of the learned advocate for the petitioner that the learned trial Judge acted without jurisdiction in deciding a particular issue of fact as a preliminary issue.
22. However, the position would have been different if after arriving at a decision on issue No. 10 in negative, the court Immediately had dismissed the suit without pronouncing Judgment on other issues. In such a case ft can be argued that adoption of such a procedure will be contrary to the amended provision of Order 14 Rule 2 of the Code. Therefore, in our opinion, a court dealing with a suit for eviction on any of the grounds referred to in section 13(1) of the Act can hear out an issue of relationship of landlord and tenant between the parties as a preliminary issue, along with an application under sections 17(2) or 17(3) of the Act but it must not dispose of the said suit on the basis of the decision on such issue if such issue is answered in negative. In such a case notwithstanding decision of the court on such issue in negative, it will adjudicate all other issues involved in the suit and will give decisions on all issues.
23. Therefore, the questions referred before us are answered as follows :--
a) Yes, but suit must not be decided on the basis of decision on such issue if decided in negative without pronouncing Judgment 'on all other issues.
b) in view of answer of question No. (a), no answer is necessary, inasmuch as section 17(2) is in no way conflict with Order 14 Rule 2 of the Code.
c) The decisions referred to therein are still good laws and are not judgments per incuriam.
24. Since the entire revisional application has been assigned before us, in view of our answers given above we find no merit in the instant revisional application and the same is also dismissed. In the facts and circumstances of the case there will be however no order as to costs.
V.K. Gupta, J.
25. I have had the privilege of going through very lucid and elaborate judgment of my learned Brother Bhaskar Bhattacharya, J. whereas I fully agree with the reasoning advanced and the conclusions arrived at by my learned brother, because of the Importance of the point involved, I do wish to add a few words of my own in support of my learned brother's judgment.
26. At the centre of the controversy is the applicability of Order 14 Rule 2 CPC vis-a-vis section 17(2) of the West Bengal Premises Tenancy Act. 1956. In considering the question whether Order 14 Rule 2 CPC creates any bar for the court to decide. In isolation, a question or any issue relating to the status of the defendant under section 17(2) of the 1956 Act when he claims that either he is not the tenant, or the plaintiff is not the landlord of the suit property. The question may assume importance if in a given case, the decision on such issue is closely and directly linked with the merits of the application under section 17(2) of the Act. The two provisions of law, namely Order 14 Rule 2 and section 17(2) of the Act have to be so harmoniously constructed by us, in a way read together, that they complement each other, rather than attempting to exclude the operation of one qua the other.
27. If a defendant makes any application in the court under section 17(2) of 1956 Act claiming that either he is not the tenant of the of the premises or that the plaintiff la not the landlord (in other words disputing the relationship of landlord and tenant between the parties qua the property in dispute). In such an application the court has to return a definite finding about such a relationship because unless such finding is returned, the court cannot pass an order on such an application directing or not directing the defendant to deposit the arrears of rent and to pay the future rent in accordance with that section. if therefore for deciding any question relating to such relationship between the parties the court frames an issue, there is no bar under Order 14(2) CPC for the court to adjudicate upon such issue at the threshold of the suit so as to enable the court to decide upon the relationship between the parties arid thus to issue proper directions relating to the liability, if any, of the defendant under section 17(2) of the 1956 Act.
28. Order 14 Rule 2 CPC in our opinion has two basic contours; one that the court should pronounce judgment on all issues, even if there are preliminary issues arising in the case, such is the mandate of sub-rule (1). Sub-rule(2) however creates an exception in the sense and to the extent limited therein, that if on a pure question of law touching upon either the Jurisdiction of the court or the creation of any bar to the suit by any law, the suit can be disposed of. without settling other issues, the court has the power to first frame such issues, being pure issues of law and depending upon the findings of the court on these preliminary issues, to dispose of the suit accordingly. This is the second contour of Order 14 Rule 2. if one reads both sub-rule(l) and sub-rule(2) of Rule 2 of Order 14 conjunctively and not in isolation of each other, one gathers the intention of the legislature that whereas sub-rule (2) is restrictive in its application, under sub-ruled) a discretion shall always vest with the court, after framing all issues together, whether or not to decide such preliminary issues first which might have a bearing on the progress of the suit and which may advance the cause of Justice, but with a condition that ultimately in the suit the court shall have to pronounce the Judgment on all the issues. In other words what sub-ruled) says is that alter you have settled all the issues based upon the pleadings of the parties, you can take up an issue or issues for your consideration even at the preliminary stage if you find that your decision on these issues will help you in the direction of proper progress of the case and you may accordingly decide such issues even before proceeding to deal with other issues. The only rider is that while deciding these issues at the preliminary stage, you cannot dispose of the suit on the basis of your findings on these issues, since the law casts an obligation on you that other issues also have to be decided because you have to "pronounce Judgment on all the issues together". Take for instance the question relating to improper verification of a plaint or a dispute raised by the defendant in the written statement regarding the valuation of the suit, or for that matter whether the suit suffers from any mischief of non-Joinder of proper or necessary parties. Now these are such questions which may not warrant or permit postpone' ment of decision at the stage of initial trial, in the sense that if the court finds merit in the objection of the defendant on any of'such questions, it can decide such relevant issues at the threshold of the trial and give opportunity to the defaulting plaintiff to either come forward With proper verification, make up the deficiency in the court fee. properly value the suit, or apply for addition of necessary or proper parties and so on and so forth so as to avoid the mischief which may erupt later and cause him such loss at the final stage which may then be rendered Irreparable. The condition is that if the plaintiff complies with these directions, the suit shall progress accordingly. Even if, however He does not comply with these directions, the suit cannot be disposed of at that stage and the other issues have also to be taken up so that the suit is finally disposed of ultimately by pronouncing the judgment on all the issues. The language employed in sub-ruled) therefore. In our view permits* such course of action for being adopted by the court. it does not create any bar for the court to deal with a suit in such a manner if such an eventuality arises. it is immaterial if the court's decision on such preliminary issues, as is covered under sub-rule(1), is based either purely on questions of law or by taking evidence in the matter.
29. Coming to the other contour of Order 14 Rule 2, regarding the scope of sub-rule(2), we find that the position is entirely different. The language employed in sub-rule(2), is quiet distinct and altogether different from that finding place in sub-ruled). Whereas sub-ruled) operates as a complete bar for the court in so far as deciding a suit at the initial stage is concerned, based on its findings upon the preliminary issues, sub-rule(2) permits the court to even dispose of a suit at the initial stage by taking up preliminary issues for consideration, subject of course to the condition that the preliminary issues must be pure issues of law, which in other words means that no evidence at all is required to be taken and that, as observed earlier, these relate only to the above referred twin purposes, namely the Jurisdiction of the court or the creation of any legal bar. There thus we find a complete dichotomy between the two situations in Order 14 Rule 2 itself, one permitting the court to take up for consideration and decide preliminary issues, both on facts and in law, but not disposing of the suit on the basis of its findings on these issues, and the other permitting the court to take up preliminary issues for consideration, but confining to and restriting itself only such issues which are pure issues of law and also additionally permitting the court to finally dispose of the suit on the basis of its findings on these issues. if the issues touch upon the twin questions relating to the jurisdiction of the court or the creation of any legal bar.
30. Applying the aforesaid touchstone to the merits of the controversy in the present case, we find that since the question relating to the relationship between the defendant and the plaintiff was vital for bringing into operation the applicability of section 17(2) of the Act, it was permissible for the court, rather desirable that it should have taken up the issues relating to such relationship at the threshold so that the parties would have been made aware of their status vls-a-vls each other, in order to avoid any future complications. In the present case therefore there was no need for the learned trial court to defer or postpone deciding this issue for the final stage, since the course of action adopted by the court in taking up the issue at the initial stage did not run counter to the policy of Order 14 Rule 2 CPC.
31. Application dismissed