Search Results Page
Search Results
1 - 2 of 2 (0.17 seconds)Basana Sen vs Aghore Nath Sen on 6 August, 1928
12. The view which I take finds support from a Bench decision of this Court in Tirthapati Sen v. Parcsh Nath Sen, ILR (1967) 1 Cal 449. In that decision it has been held by A. C. Sen, J. that there is nothing in the Act which prevents the Court from first deciding the issue in the suit as to whether the defendant is the tenant of the plaintiff and thereafter, deciding the plaintiff's application under Section 17 (3) or from deciding both together; that in either case the Court cannot strike out the defence against delivery of possession on the ground that the defendant did not apply under Section 17 (2) within the prescribed time, even if the said issue is decided in favour of the tenant, and that moreover, the time prescribed for raising the dispute by the defendant under Section 17 (2) has no application to the plea taken by the defendant that he is not the tenant by way of objection to an application by the plaintiff under Section 17 (3). Most respectfully I agree with the aforesaid Bench decision. The learned Munsif was not justified in not considering the contention of the petitioner regarding the dispute as to the existence of relationship of landlord and tenant even at the time of hearing of the application under Section 17 (3). Before passing an order under Section 17 (3) the Court has to determine whether there is any such relationship
particularly in a case where such relationship has been denied. In my opinion, the learned Munsif acted illegally and with material irregularity in the exercise of his jurisdiction in not considering the contention of the petitioner and deciding the dispute before striking out the defence of the petitioner against delivery of possession.
1