Gopendra Nath Ghosh vs Nanda Gopal Biswas

Challenge in this revisional application is the order passed by learned Chief Judge, Small Causes Court at Calcutta dated 30th July, 2005 in SCC suit no. 462 of 2004 whereby and whereunder learned Judge has allowed the application under Section 41 of the Presidency Small Causes Court Act and directed the petitioner/defendant to vacate the concerned premises in favour of the applicant/opposite party within 3 months from the date of order.

Being aggrieved by and dissatisfied with such order this application under Article 227 of the Constitution of India has been filed by the defendant/petitioner on the ground that learned trial Judge has failed to take note of the fact that the actual tenant of the premises was not made a party in such proceeding. The further case of the petitioner is that in fact the petitioner was inducted as a sub-tenant in the suit premises by one Kshitishchandra Roy and the petitioner used to pay some rent to Kshitishchandra Roy. Kshitishchandra Roy was inducted as a tenant in the suit premises. The petitioner in accordance with Section 42 of Presidency Small Causes Court Act had filed show cause stating inter-alia that a proceeding under Section 26 of West Bengal Premises Tenancy Act has been going on in the Court of Rent Controller in pursuance of an application of the petitioner for payment of rent to the present applicant/opposite party in respect of the suit premises. Therefore, the petitioner has shown sufficient causes by filing show cause before the learned trial Judge and learned trial Judge ought to have rejected such application of the opposite party simply on the basis of such show cause of the petitioner. Lastly learned trial Judge could not appreciate the true purport and legal principles evolved in the decision reported in AIR 1925 Bombay, 415(Peruri Suryanarayanan Vs. W. L. Narsimha).

Learned advocate Mr. Haradhan Banerjee appearing on behalf of the petitioner vehemently contended that the entire case of the opposite party under Section 41 of Presidency Small Causes Court Act ought to have been rejected by the trial Judge simply on the ground that Kshitishchandra Roy (erstwhile tenant in the suit premises) was not made a party in such proceeding. Mr. Banerjee further contended that in the decision reported in AIR 1925 Bombay, 415(Supra) it is evident that the tenant was also made a party in such proceeding wherein the occupier was directed to vacate the suit premises in the proceeding under Section 41 of Presidency Small Causes Court''s Act.

Mr. Banerjee further contended that a regular suit ought to have been filed by the applicant/opposite party in order to get the possession of the suit premises and that having not been done, the instant application under Section 41 of Presidency Small Causes Court Act is not at all maintainable and learned trial Judge has erroneously passed a decree against the present petitioner.

Mr. Banerjee fairly contended that the High Court cannot exercise its jurisdiction as a revisional or appeal Court in a proceeding under Article 227 of the Constitution of India but while exercising such power under Article 227 of the Constitution of India, the High Court has got sufficient power to look into the jurisdictional error committed by the trial Court.

It is submitted that learned Chief Judge, Presidency Small Causes Court has committed serious jurisdictional error by entertaining the application under Section 41 of the Presidency Small Causes Court''s Act without looking into the relevant provisions and their applicability in the proceeding under reference. In support of his contention Mr. Banerjee has referred the following decisions reported in ; 1. 2016(1) CHN (SC) 16 (Hiralal Shaw Vs. Ganga Shaw).

AIR(35) 1948 Madras 440(Mohammed Haji Gani Vs. Mohsin Raja).

1968 Mah. L.J 158(Hassan Abdul Vs. Nandgauri Bhogilal).

Learned Advocate appearing on behalf of the opposite party however supported the judgment of learned Chief Judge, Presidency Small Causes Court on the ground that since there was no privity of contract between the applicant and the occupier, learned Judge was perfectly justified in entertaining the application under Section 41 of the Presidency Small Causes Court Act.

Learned Advocate appearing on behalf of the opposite party has relied on a decision reported in AIR 1949 Calcutta 248( Gangaram Dhar Vs. Santosh Kumar Mitra) in support of his contention that only the occupant has to be impleaded as a party in a proceeding under Section 41 of Presidency Small Causes Court Act and there was absolutely no justification/reason to implead the actual tenant in the aforesaid proceeding as a party defendant.

Learned Advocate for the opposite party has also drawn the attention of the Court with regard to the explanation to Section 43 of the Presidency Small Causes Court Act. It is submitted that the petitioner could not show sufficient cause in terms of the explanation given in Section 43 of the Presidency Small Causes Court Act and accordingly learned trial Judge was justified in rejecting such show cause of the petitioner and in directing the petitioner to deliver possession of the suit premises in favour of the applicant. Learned Advocate appearing on behalf of the opposite party also contended that no suit is required to be filed for eviction of the petitioner from the suit premises since the occupation of the petitioner squarely falls within the purview of Section 41 of Presidency Small Causes Court Act. The cross examination of the opposite party in the trial Court clearly reveals that Kshitishchandra Roy surrendered his tenancy and as such there was absolutely no scope of impleading Kshitishchandra Roy a party in a proceeding under Section 41 of the Presidency Small Causes Court Act.

It would be convenient to mention the fact of the case in order to appreciate the case of the party and the contentions of learned Advocates mentioned herein above. The opposite party had filed an application under Section 41 of the Presidency Small Causes Court''s Act for recovery of possession of the property situated at holding no. 2A, Sudhir Sen Barat Lane, P.S.- Muchipara, Calcutta- 700009 against the present petitioner. One Gosthobehari Biswas since deceased, had executed a registered deed of family settlement and transferred his properties to the trust "Estate of Gosthobehari Biswas" and himself became the first beneficiary of such trust. He then nominated and appointed his eldest son Jyotishchandra Biswas as the second trustee who was scheduled to take possession of trust Estate on the demise of said Gosthobehari Biswas. Gosthobehari Biswas died in December, 1940 and thereafter Jyotishchandra Biswas being next in line of succession and trustee took possession of the Estate for management in terms of the deed of family settlement. Jyotishchandra Biswas had inducted Khitish Chandra Roy as tenant of the premises no. 2A Sudhir Sen Barat Lane, P.S.- Muchipara, Calcutta- 700009 at a monthly rent of Rs.150/- payable according to English calendar month. Kshitishchandra Roy used to possess the said suit premises as a tenant under Jyotishchandra Biswas.

The entire Estate of Jyotishchandra Biswas thereafter was subjected to litigation. After the demise of Jyotishchandra Biswas, one Sunil Kumar Mitra learned Advocate of this Hon''ble Court was appointed as receiver.

The dispute amongst the co-owners was ultimately decided by the judgment of Civil Court dated 3rd October, 2002 and the present opposite party took over the Estate as the sole and absolute owner of trust Estate of Gosthobehari Biswas including the suit premises. Thereafter the opposite party had filed the suit under Section 41 of Small Causes Court''s Act against the present petitioner. The petitioner admittedly appeared before learned trial Judge and submitted show cause stating inter-alia that the petitioner was inducted as a sub-tenant under Kshitishchandra Roy at monthly rent of Rs.120/- and thereafter the Kshitishchandra Roy left the suit premises on account of his illness and the petitioner had been/has been using and occupying the suit premises as a sub-tenant under Kshitishchandra Roy. The petitioner has also filed a proceeding before the rent controller under Section 26 of the West Bengal Premises Tenancy Act stating inter-alia that the petitioner has become a direct tenant under the opposite party and the opposite party may be directed to accept rent from the present petitioner as a tenant in the suit premises. The further case of the petitioner is that the proceeding under Section 41 of the Presidency Small Causes Court''s Act is not at all applicable since the petitioner has become a direct tenant under the opposite party and in view of pendency of the proceeding under Section 26 of the West Bengal Premises Tenancy Act, the application under Section 41 of the Presidency Small Causes Court Act ought to have been rejected by the learned trial Judge.

Before delving into the merit of the contentions of both the parties as well as the actual position of law it would not be out of place to mention in brief about the evidences adduced by the parties in the Court below.

It has been elicited in the cross examination of opposite party that Kshitishchandra Roy actually surrendered the property in favour of the opposite party. It is also the case of the petitioner that he has been occupying the suit property since 1956 as a sub-tenant under Kshitishchandra Roy. The evidences on record clearly reveal that the petitioner was a minor in the year 1956 and he had completed his education in the year 1965 only. Therefore, the question of coming into possession of the suit premises as a sub-tenant in the year 1956 does not arise at all.

Section 41 of the Presidency Small Causes Court Act has been incorporated with a view to meet the contingencies that arose in the Presidency towns like Bombay, Calcutta and Madras where there was continuous floating population coming and going day to day. The legislature in his wisdom has incorporated and made a special statute in order to provide immediate relief to the owner of the properties which are in possession of the occupiers. The legislature definitely thought it fit to incorporate such provision despite having specific statute for eviction of tenant only with a view to evict the occupiers having no privity of contract with the actual owner or even with the tenant.

The Apex Court in the decision reported in 2016(1) CHN (SC) 16 (Supra) set aside the order passed by this Court and directed the Small Causes Court to decide the status of the defendant/opposite party. There is absolutely no ratio in the aforesaid decision to hold that the original tenant ought to be made party in a proceeding under Section 41 of the Presidency Small Causes Court''s Act. The aforesaid decision is accordingly not applicable in the context of the given facts and circumstances of this case. The decision reported in 1968 Mah. L.J. 158 (Supra) has been referred only to show that the tenants were also made party in a proceeding under Section 41 of Presidency Small Causes Court''s Act. The ratio initiated in AIR 1948 Madras 440 is not at all applicable in the present case since the decision was rendered in respect of Madras Building (lease and rent control Act).

On the contrary it has been categorically observed by our High Court in the decision reported in AIR 1949 Calcutta 248(Supra) that the word occupant in 4th para refers to person who has actually been asked to deliver up possession and has refused to do so. It is that person who is to be defendant in proceedings contemplated by that para. Learned trial Court has also rightly relied on the decision reported in 1925 Bombay, 415(Peruri Suryanarayanan Vs. W. L. Narsimha).

It is therefore apparent from the aforesaid discussions that the petitioner is a occupier of the suit premises without having any privity of contract with the opposite party and that the petitioner could not show cause in terms of Section 43( in terms of the explanation of the Section 43 of the Presidency Small Causes Court Act) and accordingly the learned trial Judge was justified in decreeing the suit in favour of the opposite party and directing the petitioner to deliver possession of the suit premises in favour of the opposite party. On careful consideration of the point of law as well as the jurisdiction exercised by learned trial Judge, I find no reason to interfere with such order passed by learned trial Judge.

Accordingly the application under Article 227 of the Constitution of India is dismissed.

No order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.