Anil Kr. Ghosh vs Manicklal Manna

B.N. Maitra, J.—The facts are not in dispute. On the 20th of February, 1976, the tenant-petitioner filed three applications, one u/s 17(1), another u/s 17(2) and the other one u/s 17 (2A) of the West Bengal Premises Tenancy Act. He alleged that there was no relationship of landlord and tenant between the parties. There was no arrear or default in paying rent. He also asked for an order to deposit current rent month by month. On the 31st of March, 1977, the applications u/s 17(2) and 17(2A) of the Act were heard and disposed of by the order no. 17. The learned Munsiff held that the defendant was not defaulter and was not liable to pay any arrear rent. The further order was that the dispute regarding the relationship of landlord and tenant between the parties would be kept open at that stage of the proceeding and it would be disposed of at the final hearing. Then on the 7th of September, 1978, the landlord opposite parties filed an application u/s 17(3) of the Act and prayed for striking out the petitioner''s defence against delivery of possession on the allegation that he had failed to pay or deposit in Court month by month the rent. The petitioner filed an objection thereto. He also filed an application u/s 151 of the CPC along with a prayer u/s 5 of the Limitation Act to condone the delay in depositing rent for April, 1977, January, 1978, and February, 1979. The learned Munsif rejected the tenant''s prayer, allowed the landlords application and struck out the petitioner''s defence against delivery of possession. Hence this revisional application. It has been argued on behalf of the petitioner that since by the order no. 17 dated 31st of March, 1977, the Court expressly left the question of relationship of landlord and tenant between the parties open, there was no jurisdiction to pass an order u/s 17(3) of the Act striking out the defence against delivery of possession.

The learned Advocate appearing on behalf of the landlords opposite parties has referred to the case of Lakshmi Narayan vs. Amalendu reported in 1977 (1) C.L.J. 199 to show that if the tenant in his petition of objection does not raise any plea that there was no relationship of landlord and tenant between the parties, the Court is justified in allowing landlord''s application u/s 17(3) of the Act. In this case no such defence was raised by the petitioner in his objection filed on the 4th of June, 1979, to the landlord''s application u/s 17(3) of the Act. Hence the present contention cannot be canvassed in this Court. The case of Dilip Kumar vs. Lilabati reported in 1977 (2) C.L.J. 314 has been referred to show that where an order was made u/s 17(2) of the Act and the Court passed an order thereon, but subsequently the tenant failed to comply with the provisions of section 17(1) of the Act, his defence against delivery of possession was rightly struck out. In this case the admitted position is that on the 31st March 1977, the Court kept the question of relationship of landlord and tenant open in presence of the parties. The petitioner did not move the High Court against that order. Consequently, that order is binding on him. After the petitioner''s applications u/s 17(2) and 17(2A) were disposed of, he failed to comply with the requirements of section 17(1) of the Act, because, his own case is that he failed to deposit rent of the aforesaid three months in time. The Court was therefore, justified in striking out the defence against delivery of possession. The learned Munsif disbelieved the petitioner''s version. There is a question of fact. The High Court has no power to enter into such question of fact in its revisional jurisdiction. The matter has, therefore, been concluded by the order of the learned Munsif.

The principles of law laid down in cases of K. Basu vs. P. M. Sarkar, 74 C.W.N. 42 ,Baidyanath vs. Jyotsna in Baidyanath Kundu Vs. Sm. Jyotshna Rani Karmakar, and Upendra Pal vs. Sasthi, 1979 (2) C.H.N. 121 may be referred to. The position of law is that unless a dispute u/s 17(2) of the Act has been decided and determined by making a proper and appropriate order u/s 17(2) of the Act, no question of striking out the defence u/s 17(3) can arise, provided that the dispute is bonafide one. Of course, it has been strenuously contended on behalf of the landlords that the petitioner did not raise in his objection petition filed on the 4th of June, 1979, that he was not a tenant under the landlords. Nevertheless, such objection was previously raised and decided by the Court only by side tracking the issue and leaving that matter open to be decided at the trial. The Court gave its opinion. Hence after the Court left that question open, it was no longer necessary for the tenant to plead the same afresh in his petition of objection. So, there is no defect in this respect.

In the case of Upendra Pal vs. Sasthi (supra) it has been clearly stated that where the tenant denied the relationship of landlord and tenant and thereafter the landlord filed an application u/s 17(3) of the Act, the Court had no jurisdiction to pass an order u/s 17(3) allowing the landlord''s application. In that case the order was, therefore set aside with the direction to the learned Munsif to decide the question of existence of relationship of landlord and tenant and then to take up the application u/s 17(3) of the Act for disposal. Similar course will be adopted in this case. I fined that the learned Munsif made a jurisdictional error in allowing the application u/s 17(3) of the Act after expressly leaving the dispute as to relationship of landlord and tenant open. He acted illegally in passing such order because unless he found that the defendant was the plaintiff''s tenant, he could not strike out such defence u/s 17(3) of the Act. Hence, the case must be remitted to that Court. The learned Munsif will decide the question as to existence of relationship of landlord and tenant between the parties first, then take up the application u/s 151 of the Code read with section 5 of the Limitation Act and then hear the petition u/s 17(3) of the Act.

The application is allowed and the impugned order set aside. There will be no order as to costs.