Calcutta High Court (Appellete Side)
Sukhen Paul Alias Sukhendu Paul & Anr vs Smt. Tora Mitra & Anr on 10 February, 2020
Author: Biswajit Basu
Bench: Biswajit Basu
1
6
sandip
Ct. 18
10.02.2020
C.O. No. 1857 of 2018 Sukhen Paul alias Sukhendu Paul & Anr.
Vs. Smt. Tora Mitra & Anr.
Mr. Asit Baran Raut, Mr. Asit Kr. Chowdhury, Ms. Ishita Raut ... For the petitioners.
Mr. Purbangshu Chandra Mitra, Mrs. Piyali Mitra `... For the O.P. No. 1.
The revisional application under Article 227 of the Constitution of India is at the instance of the defendants in a suit for ejectment and is directed against Order No. 35 dated May 11, 2018 passed by the learned 4th Bench, Small Causes Court at Calcutta in Ejectment Suit No. 557 of 2013, whereby the learned Trial Judge has disposed of one application under Section 7(1) and another under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as the 'said Act' in short), holding that the petitioners are defaulter in payment of rent since March 2008 and directed to deposit the arrear rents along with the statutory interest.
Mr. Raut, learned advocate appearing on behalf of the petitioners submits that in the application under Section 7(2) of 2 the said Act the petitioners have specifically prayed for abatement of rent on the ground for non-supply of water as well as not delivering the possession of the kitchen which forms part of the tenancy in terms of the tenancy agreement, but the learned Trial Judge deferred the said issues to be decided at the time of disposal of the suit.
He draws my attention to the decree passed in the Title Suit No. 1676 of 2008 filed by the petitioners for declaration of their tenancy right and other consequential reliefs in respect of the suit property of the suit out of which the present revisional application arises, wherefrom it appears that the said suit was decreed with the following terms:-
"that the present suit be and the same is hereby decreed ex parte with cost against the defendant. The plaintiffs do get a decree declaring that they 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 are bound to bear 50% cost for making the same.
The plaintiffs do further get a decree declaring that the plaintiffs are entitled to get kitchen being a part and parcel of the tenancy.
The plaintiffs do also get a decree for permanent injunction restraining the defendants from making any disturbance in using the common areas of the suit premises and/or from making any disturbance in 3 availing uninterrupted supply of filtered water through the overhead tank to the suit premises and/or from dispossessing the plaintiffs from their possession in the suit premises without due process of law. The defendants are hereby directed to allot the kitchen to the plaintiffs in terms of the agreement and to make the reservoirs as agreed upon by the parties within two months from this date, in default, the plaintiffs are at liberty to put the decree into execution."
Mr. Raut submits that the said decree was exhibited in course of the Trial of the said application under Section 7(2) of the said Act, but the learned Trial Judge did not consider the said document at the time of disposal of the said application. The tenants/defendants are entitled to seek for abatement of rent in an application under Section 7(2) of the said Act and since such abatement if allowed would have a direct impact on the assessment of arrear rent, duty casts upon the learned Trial Judge to decide the said issue at the time of disposal of the said application instead of deferring the same for future adjudication. The order impugned is set aside.
The learned Trial Judge is directed to decide the application under Section 7(2) and the application under Section 7(1) of the said Act afresh in accordance with law on the basis of the evidences already on record.
4In view of the age of the ejectment suit the learned Trial Judge is required to dispose of the said applications within a period of six weeks from the date of communication of this order without granting any unnecessary adjournment to either of the parties. C.O. 1857 of 2018 is thus disposed of.
No order as to costs.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Biswajit Basu, J.)