Biswanath Roy vs Annapurna Roy

P.N. Mookerjee. J.

This Rule arises out of a proceeding u/s 17(3) of the West Bengal Premises Tenancy Act, 1956. The ejectment suit in question was filed on June 23, 1959, the ground taken under the West Bengal Premises Tenancy Act, 1956, being one u/s 13(1)(f) of that Act. The suit premises comprises a portion of Municipal Premises No. 3/1, Panditia Road, which, according to the Plaintiff who is the Petitioner before us, was being occupied by the Defendant opposite party as a. monthly tenant under him at a rental of Rs. 20 per month. The Plaintiff Petitioner purchased the suit premises from its previous owner on February 20, 1959. According to him, due notice or intimation of this purchase was given by registered post to the Defendant on or about February 25, 1959, and there was also the relative letter of attornment from his (the Plaintiff''s) vendor, the previous owner, to the said tenant Defendant.

On or about April 16, 1959, the Plaintiff Petitioner served the notice to quit upon the Defendant by registered post, purporting to terminate her tenancy in respect of the suit premises and alleging that the same was required by him, the Plaintiff, for his own occupation after demolition of the existing dilapidated building and re-building upon the same. To this notice, there was a reply on behalf of the Defendant on April 28, 1959 and eventually, as stated above, the present suit was instituted on June 23, 1959.

Even prior to the institution of the suit and prior also to the service of the notice to quit, the Defendant for reasons, best known to her, was, according to the Plaintiff Petitioner, depositing rents with the Rent Controller in respect of the disputed premises in the Petitioner''s favour upon affidavit and application for permission to make such deposit and upon admission that she was the tenant of the suit premises, and indeed, the sole tenant in respect thereof- under the Plaintiff Petitioner as landlord. This was the Petitioner'' allegation in the plaint which contain other requisite allegations- for purposes of the suit for ejectment. There was, however, in the plaint, no allegation and no claim of any outstanding or arrear rent.

The summons of the suit appears to have been served upon the Defendant on August 24, 1959, and she entered appearance therein on September 9, 1959, and filed her written statement on November 16, 1959. In the aforesaid written statement, amongst various other pleas, a plea was taken as to defect of parties upon the allegation that the Defendant''s son Anil Kumar was in truth, the real original, tenant in respect of the suit premises and, upon his death, his two sons, namely, the Defendant''s two grandsons, by her said son, became the tenants of the same and the suit could not proceed without joining them or in their absence.

In the suit, on November 16, 1959, the Plaintiff Petitioner applied u/s 17 of the West Bengal Premises Tenancy Act, 1956, or more accurately, under Sub-section (3) of that section, for striking out the defence against ejectment for alleged noncompliance with the said section (Section 17) in the matter of deposit of rent. This application of the Plaintiff was opposed by the Defendant, who disclaimed any interest in the tenancy in suit and put forward the plea that her aforesaid two grandsons,� and. not she herself, were the tenants in respect of the same. In view of that allegation in the written statement, an issue was raised in the suit as Issue No. 2, touching this question of defect of parties. That issue along with the Plaintiff''s aforesaid application u/s 17, more accurately, under Sub-section (3) of that section, for striking out the defence was taken up for hearing by the learned Additional Munsif on December 22, 1959, when, by his order No. 17 of the said date the said learned Munsif was pleased to decide the said Issue No. 2 in favour of the Plaintiff, but, at the same time, upon a finding, which, according to the Plaintiff, is not consistent with his said earlier finding the learned Munsif reached the conclusion that the Plaintiff had not been able satisfactorily to establish the relationship of landlord and tenant between the parties by any competent evidence and that the defence, as also the objection to the Plaintiff''s application u/s 17(3), raised mainly the dispute as to such relationship, and, as, in the opinion of the learned Munsif, that dispute amounted to one u/s 17(2) of the West Bengal Premises Tenancy Act, 1956, be fixed the hearing of the said matter u/s 17(2) on January 6, 1960, dismissing, at the same time, the Plaintiff''s application u/s 17(3). It is against this order that the present rule was obtained by the Plaintiff Petitioner and one of the principal submissions on his behalf in this Court has been that the learned Munsif''s order was self-inconsistent and extremely unsatisfactory and could not be supported. Mr. Sen, appearing for the Plaintiff Petitioner in this Court, has further contended that there was, in truth, no dispute as to relationship of landlord and tenant between the. parties, but only an allegation of defect of parties for nonjoinder of the Defendant''s two grandsons as Defendants in the suit; which allegation had been answered against the Defendant by the learned Munsif in answering Issue No. 2 in the Plaintiff''s favour.

Mr. Sen has further contended that, even assuming that there was a dispute as to relationship of landlord and tenant between the parties, such a dispute would not necessarily or by itself bring the case within Section 17(2) of the aforesaid Act, as that dispute was not sufficient to amount to a "dispute as to the "amount of rent payable by the tenant," which is the only dispute contemplated under the said Sub-section.

We may say at once that on a reading of the learned Munsif''s order, the first submission of Mr. Sen appears to be perfectly well-founded in view of the fact that the said order appears to contain inconsistent findings, or, at any rate, no firm finding for the disposal either of issue No. 2 or of the Plaintiff''s application u/s 17(3) of the West Bengal Premises Tenancy Act, 1956, which application, strangely enough has been dismissed by the learned Munsif even though he has reserved or purported to reserve consideration of the question u/s 17(2). Clearly, therefore, that order will have to be set aside and the matter will have to go back to the learned Munsif for fresh and further consideration in accordance with law. This position has not really been controverted by Mr. Chatterjee, who appears on behalf of the Defendant opposite party. But, before we remit the case for fresh or further consideration, as indicated herein before, it is necessary that we should dispose of the point of law, which has been raised by Mr. Sen and which was decided against his client by the learned Munsif, in the course of his aforesaid order, relying upon the decision of Guha Ray, J. sitting singly, in the case of Ganesh Chandra Bose v. Manmatha Nath Bhattacharjee (1957) 63 C.W.N. (notes portion) XXVI.

Mr. Sen has contended, as we have already stated, that the mere denial of relationship of landlord and tenant does not bring the case within Section 17(2) of the West Bengal Premises Tenancy Act, 1956, which requires a "dispute as to the amount "of rent payable, by the tenant" for the application of the said Sub-section. Guha Ray, J., in the decision cited, has expressed a contrary view on this point of law and Mr. Sen has argued that that view of the law is not correct and should not be affirmed or approved. In our opinion, however, the view taken by Guha Ray, J., in the case cited, is the only possible view of the particular Sub-section and of the particular phrase with which we are here directly concerned, namely, "dispute as to "the amount of rent payable by the tenant". As observed in that decision, of the three Sub-sections of Section 17 of the aforesaid Act, Sub-section (1) deals with the case, where there is no dispute at all between the parties either as regards the rate of rent or as to the amount payable by the tenant or as regards the question of the existence of relationship of landlord and tenant between them. Sub-section (2) provides for a case, in which there is a dispute of that nature. This will be clear, if one looks to the whole of the said Sub-section and, particularly to its last part, where the expression "the amount to be deposited or paid to the landlord "by the tenant in accordance with the provisions of Sub-section (1)" occurs. It is clear from these words that the court has to determine who is the landlord, to whom the amount in question is to be paid and once that is conceded, a dispute as to the relationship of landlord and tenant, which obviously involves and raises the question as to whether the particular Plaintiff is the landlord of the particular Defendant, even though the latter may be the tenant of the premises in question, would plainly be a dispute which will have to be decided before the question contemplated under Sub-section (2) can be finally answered. The denial of relationship of landlord and tenant will necessarily mean that the tenant''s contention is that no rent is payable to the particular Plaintiff, who claims to be the landlord or, in other-words, that he disputes the Plaintiff''s claim for rent, and, accordingly, it would come well within the phrase "dispute as to the amount "of rent payable by the tenant" in the context, particularly of the further provision that the court should determine what is the amount payable to the particular landlord by the particular tenant. In our opinion, then, as held in the aforesaid case cited, any kind of dispute which affects the amount of rent, payable by the tenant including a dispute as to the existence of relationship of landlord and tenant between the parties, will be a dispute under or within the contemplation of Sub-section (2) of Section 17. A dispute as to the existence of relationship of landlord and tenant between the parties does, in our opinion as already sufficiently indicated above affect the question of rent payable by a tenant to a particular landlord, and, in that view" of the matter in a case where such a dispute has been raised unless and until the court has decided and determined that dispute and made an appropriate order under Sub-section (2) of Section 17 no question of striking out the defence u/s 17(3) can arise, provided, of course, as held in the later but earlier reported case of Tarak Nath Gupta v. Lt.-Col. Karuna Kumar Chatterjee and Ors. (1958) 62 C.W.N. 830 and also in the much earlier but later reported case of Gujrat Printing Press v. Naraindas Jewraj (1957) 64 C.W.N. 157 that the said dispute is a bona fide dispute as otherwise, the said Sub-section (2) would not be attracted.

We do not think that the two decisions D.R. Gellatly Vs. J.R.W. Cannon, and Ashalata Mitra v. A.D. Viz (1955) 59 C.W.N. 692 cited by Mr. Sen, have any bearing on the present question and it is enough to say that those two decisions dealt with a statutory provision, which did not involve or require consideration of the said question now before us, and they actually throw no light upon the same and are of no assistance in the matter.

In our view, then, the learned Munsif took the correct view on this part of the case, although, as we have pointed out above, his order is otherwise defective and has to be set aside and the case sent back for. re-consideration in the light of our observations, made in this judgment. As prayed for by the learned advocates on both sides, liberty is given to either party to adduce fresh or further evidence on the point or points in dispute in the present matter in issue and the learned Munsif will decide the same on the evidence already on record, and such further evidence as may be adduced by the parties in pursuance of the leave, herein granted, in the light of the observations, made in this judgment.

We would, accordingly, make this Rule absolute, set aside the order of the learned Munsif and send the case back to him for a re-consideration of Issue No. 2 and of the Plaintiff''s application u/s 17(3) of the Act (West Bengal Premises Tenancy Act, 1956) with reference to Section 17(2), in the light of the observations, we have made hereinbefore.

Costs of this rule will abide the final result of the proceeding.

N.K. Sen, J.

I agree.