Bina Kumar vs Sri Janardan Roy

Harish Tandon, J. - C.O. 2906 of 2016 is filed challenging an order dated November 27, 2015 passed by the learned Civil Judge (Junior Division), 3rd Court, Sealdah in Ejectment Suit No. 48 of 2004, by which an application under Order 7, Rule 10 of the Code of Civil Procedure is rejected.

C.O. 2912 of 2016 is filed by the same petitioners challenging an order dated June 13, 2016 passed in the said suit disposing of an application under Section 7 (2) of the West Bengal Premises Tenancy Act, 1997 determining the arrear of rent and directing the petitioners to deposit the same within thirty days from the said date.

Admittedly the suit is filed by the plaintiffs/opposite parties for eviction of a tenant, inter alia, on the ground of default and reasonable requirement. After receiving the summons the disputes are raised under Sub-section 2 of Section 7 of the said Act relating to the arrears rent and the relationship of "landlord and tenant".

Indubitably the Court allowed the parties to adduce evidence in support of their respective stands in a proceeding under Section 7 (2) of the said Act and thereafter determined the arrears rent without embarking to determine the relationship of "landlord and tenant".

In this regard the reference can be made to a decision rendered by a Co-ordinate Bench in case of Manik Lal Sett & Anr. v. Smt. Hira Basu @ Surali Basu & Ors. reported in 2008 (2) CLJ (Cal) 675, wherein it is held that if a dispute as to the existence of relationship of "landlord and tenant" is raised by a tenant in an eviction proceeding, the Court should determine the same along with an issue to be framed in this regard. In other wards it is held that the determination of such dispute in absence of the issue may invite an anomalous situation and, therefore, it is proper that the Court should frame an issue with regard to the existence of relationship between "landlord and tenant" and should determine the same along with the said application.

It would be apt and profitable to quote the relevant excerpts from the said judgement, as under:

"10. The question is what would be the effect if the trial Court decides and disposes of the 17(2) and 17(2A)(b) petitions involving the relationship of landlord and tenant without framing issue thereon, or whether such a decision upon 17(2) and 17(2A)(b) without framing issue can be recorded as infirm or without jurisdiction. An Hon''ble Single Judge in the Mantu Naik v. Bankim & Anr (supra) held that under the amended provisions of Order 14 Rules 1 and 2 of the C.P.C. it is permissible and justified for the Court to take up and decide an issue of fact along with an interlocutory application in isolation of other issues framed in the suit and thereafter to pronounce judgment on all the issues. The previous decisions of this Court as referred to above were also considered in this decision. The question has been given a fresh look in a later Division Bench Judgment in Synthetic Plywood Industries Ltd. (supra) where it was held that it was permissible for the Court, rather desirable that the issue should be taken up relating to such relationship and the trial Court having taken up the issue in question did not run counter to the policy of Order 14, Rule 2 of the C.P.C. Their Lordships of the Division Bench held as follows:

''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 is truck 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.''

In view of the legal position obtaining under the given situation when a decision is rendered under Section 17(2) asking the defendant to deposit the arrears of rent affirming the existence of relationship of landlord and tenant without framing any issue thereon the question would arise what legal consequences would follow if the order under Section 17(2) or 17(2A)(b) of the Act is not complied with by the defendant. The order cannot be basically illegal; it being a tentative nature but in the event of noncompliance with the order defence under Section 17(3) of the Act cannot be stuck out. It follows therefore that such an order becomes infructuous because invocation of the provision of Section 17(3) does not necessarily follow from non-compliance with the order passed under Section 17(2). Thus, the position would be that the defendant will be at liberty to adduce evidence both oral and documentary to speak of absence of relationship at the trial with respect to an appropriate issue necessarily to be framed in view of the pleadings of the parties. If at the trial the issue is answered in favour of the defendant, it is one thing; but it is quite another if the issue is answered in favour of the landlord and in the event of the issue being anasered in favour of the landlord then the defendant would be insisting on protection under Section 17(4) of the Act by an order to grant instalment to make the arrears of deposit.

This would become a cumbersome situation. Thus, an order under Section 17(2) and 17(2A)(b) to be binding upon the defendant the consistent view of this Court has been that the issue must be decided along with the 17(2) application and the decision on that issue would be a final one and such a decision on a single issue would not, as has been held in Mantu Naik (supra), militate against the principle of Order 14 Rules 1 and 2 of the C.P.C. In that view of the matter it is but appropriate that the learned Trial Court decides the 17(2) and 17(2A)(b) application along with the issue to be framed, if not framed earlier. The order impugned does not show that the learned Trial Court has decided the issue after framing one such together with the application under Section 17(2) and 17(2A)(b) of the Act. If the order would have reflected that the issue has also been decided once for all after framing issues then the position would have been in order, regardless or whether the finding of the issue was legally correct or not. Therefore, I am not inclined to go into the merit of the finding in the above circumstance. But one thing that has been pointed out before me by the learned Advocates for the petitioner is that the learned Trial Court has recorded that the plaintiff filed the certified copy of the Deed of Conveyance dated 04.01.1929 executed by Putiram Kabi & Ors. in favour of Manmatha Nath Kundu and Jatindra Mohan Seth. According to Mr. Chatterjee, learned Advocate appearing for the petitioner it was not the deed filed by the plaintiff but by the defendant and it is the defendant''s case that the defendant Nos. 1 and 2 are the legal heirs of Manmatha Nath Kundu and Jatindra Mohan Seth, the transferee from Putiram Kabi and Ors. by Kobala dated 04.01.1929 in respect of the structure. It has been further pointed that the learned Trial Court referred to a Deed of Partition (Exbt. E) and a Certificate of Probate (Exbt. F) but without elaborating how by that Deed of Partition and the Probate the plaintiff could get title the property inclusive of land and structure. It has been stated that the order impugned does not disclose the alleged devolution of title in favour of the plaintiff and the alleged documents of title of the plaintiff have not been considered, vis-a-vis Exbt. 1, the kobala dated 04.01.1929. The learned Trial Court will analyse the facts in details as the matter goes back on remand."

Mr. Ghosh is very much vocal in his submission that the suit as it stands cannot be defeated on the point raised by the tenants/petitioners.

This Court feels that any observation in this regard may have an impact on the merit of such question or may assume persuasive effect on the learned Judge in the Trial Court and, therefore, refrains to make any observations thereupon.

Since the Co-ordinate Bench have held that if such dispute is raised, the application should be decided along with an issue to be framed in this regard, this Court feels that the approach of the Trial Court in not determining such dispute upon framing a specific issue is contrary to the said decision.

Accordingly, the order impugned is hereby set aside. The Trial Court is directed to frame an issue as to the relationship of "landlord and tenant" and shall determine the same along with the application under Section 7 (2) of the said Act.

Since the parties have already adduced evidence in support of their respective stands in the said proceeding, the Trial Court shall proceed to decide the said issue along with the said application and shall see that the same is disposed of within three weeks from the date of the communication of this order in accordance with law.

C.O. 2906 of 2016 is thus disposed of.

Since the application under Section 7 (2) of the West Bengal Premises Tenancy Act, 1997 is remitted back to the Trial Court for fresh consideration, the other revisional application, being C.O. 2912 of 2016, challenging the order, by which the application under Order 7, Rule 10 of the Code of Civil Procedure is rejected, does not warrant any interference. The same is accordingly disposed of.

There will be no order as to costs.