Lew Banerjee vs Panchu Chowdhury and Others

Narayan Chandra Sil, J.—This application is directed against the judgment and decree dated 8-10-1993 passed by Sri T. K. Bhattacharya, learned Assistant District Judge, Sealdah in connection with Title Appeal No. 64 of 1992 affirming the judgment and decree dated 27-6-1992 and 10-7-1992 respectively passed by Sri M.P. Srivastava, learned Munsif, First Court. Sealdah in Title Suit No. 37 of 1978. It appears that the trial court was pleased to decree the suit on contest in part and the first appellate court was pleased to affirm the same having dismissed the appeal on contest.

It appears from the record that the substantial questions of law for the consideration of the present appeal were formulated at the time of admission of the appeal by the Division Bench of this Court by order dated 8-4-1994 and it further appears therefrom that the ground Nos. 2 to 4 taken up in the memo of appeal were treated as the substantial question of law. It is, thus, stated in ground No. 2 of the memo of appeal that the courts below erred in law in not taking into consideration the judgment and order dated 6-9-1991 passed by this court in Civil Order No. 3088 of 1991 whereby admission of the respondent about the nonexistence of the structure on the suit premises would be evident and there was a direction of the court for adjudication of the question regarding the period of non-existence of the structure on the suit premises by the courts below but the same was not decided and as such the courts below could not come to any conclusion in the suit as regards the ground of default. In ground No. 3 it is stated that the courts below ought to have taken into consideration the judgment and decree dated 21-12-1989'' passed by this Court in Civil Order No. 3399 of 1989 wherein this court was pleased to give liberty to the petitioner to challenge the Order No. 44 dated 7-9-1982 passed in the Title Suit No. 37 of 1978 in appeal and as such the decision of the court was liable to be set aside. It is stated in ground No. 4 that the" petition u/s 17(2) of the West Bengal Premises Tenancy Act was filed by the defendant before the trial court wherein it was raised that the defendant was a thika tenant and not a tenant under the West Bengal Premises Tenancy Act and as such the trial court was legally bound to determine the quantum of arrears of rent at the time of disposal of such petition but that having not been done, both the courts below could not have held that the order No. 44 dated 7-9-1982 could not be challenged in appeal u/s 105 of the Code of Civil Procedure. Thus, in order to sum up the ground Nos. 2, 3 and 4 in the memo, of appeal and so also the substantial questions of law involved for the determination in the present appeal it stands as follows :

"1. What are the purports of the order passed by this Court on 21-12-1989 in Civil Order No. 3399 of 1989 and order dated 6-9-1991 passed by this court in Civil Order No. 3088 of 1991 and how far those orders have been followed by the courts below;

Whether the order No. 44 dated 7-9-1982 passed by the trial court in Title Suit No. 37 of 1978 stood the test in the appeal in terms of the order passed by this court in Civil Order No. 3399 of 1989 and whether the order passed by the trial court in disposing of the petition u/s 17(2) of the West Bengal Premises Tenancy Act is still open to be challenged in this Second Appeal under the provisions of Section 105 of the Code of Civil Procedure."

The suit before the trial court was filed for eviction of the tenant on the ground of (1) default in payment of rent, (2) reasonable requirement of the plaintiff/landlord and (3) waste and mischief caused in the suit premises by the tenant. The trial court was pleased to decree the suit only on the ground of default in payment of rent dismissing the other two grounds. The first appellate court was pleased to affirm the judgment and decree passed by the trial court.

Mr. Biman Kanti Bose, learned Advocate appearing on behalf of the appellant/defendant draws my attention to the order No. 44 dated 7-9-1982 passed by the trial court and submits that the trial court was pleased to hold that the defendant was not a thika tenant. In fact, the impugned order No. 44 dated 7-9-1982 is In connection with the disposal of the petition u/s 17(2) of the West Bengal Premises Tenancy Act filed by the defendant after the suit was remanded back to the trial court from the first appellate court for re-hearing of the matter. It is pointed out by Mr. Bose to me that the trial court in the said order did not determine the arrears of rent to be paid by the defendant and ultimately the defendant had been deprived of the benefit under the provisions of Section 17(4) of the West Bengal Premises Tenancy Act. It is farther submitted by Mr. Bose that thereafter a review petition was filed and by order No. 78 dated 22-2-1985 the trial court was pleased to reject the said petition for which a revisional application was filed by the defendant before the High Court and the High Court by its order dated 10-6-1988 was pleased to reject the said revisional application. It is further argued by Mr. Bose that thereafter the defendant/appellant filed an application before trial court for determination of his arrears of rent but the said petition was rejected for which the defendant filed a revisional application before the High Court and the High Court while rejecting that application being maintainable was pleased to observe that the applicant can very well challenge the order in appeal, if law permits

It is also argued by Mr. Bose that the defendant had filed one petition for local inspection in order to determine as to whether there was any structure on the suit property and the High Court by its order dated 6-9-1991 In Civil Order No. 3088 of 1991 observed that "the question as to the point of time from which the said structure ceased to exist is kept open to be decided in the suit." It is pointed out by Mr. Bose that despite the observation made by the High Court the trial court eschewed itself from considering the said point. The learned Advocated for the appellant/defendant has then referred to some case laws which I shall discuss at the appropriate point of time. The learned Advocate for the appellant then argues before me that in view of his submissions the case may be remanded to the trial court for determination of the arrears of rent and since when the structure in question ceased to be in existence on the suit property.

Mr. Harish Tandan, learned Advocate appearing on behalf of the respondent/plaintiff submits before me that although the petition u/s 17(2) of the West Bengal Premises Tenancy Act was rejected ex parte, such ex parte order was made on merits of the petition. It is pointed out be him that after the ex parte order the defendant had filed one petition u/s 151 of the CPC before the trial court with a prayer to recall the said ex parte order, but the said petition u/s 151 of the CPC was rejected on contest And only thereafter the defendant went on revision before the High Court and the High Court in its turn was pleased to dismiss the said revisional application on merits. It is also pointed out by Mr. Tandon that the defendant did not deposit any arrears of rent before the trial court. From the submissions made by the learned Advocate for the appellant, it is understood by Mr. Tandan that the only case of the appellant is that they can challenge the matter here in Second Appeal under the provisions of Section 105 of the Code of Civil Procedure.

It is also pointed out by Mr. Tandan that the petition u/s 151 of the CPC filed by the substituted defendant with a prayer to allow them to deposit the arrears of rent was dismissed on merits by the trial court and the revisional application filed by the defendant there against before the High Court was also dismissed. As regards the scope of Section 105 of the Civil Procedure Code, Mr. Tandan has referred to some case laws which will be discussed at the appropriate point of time. It is pointed out by Mr. Tandan at the time of his argument that the defendant/tenant can avail of the opportunity provided u/s 17(4) of the West Bengal Premises Tenancy Act only when the order passed u/s 17(1) of the said Act is complied with. In reply the learned Advocate for the appellant has drawn my attention to the order dated 6-9-1991 passed by His Lordship Mr. Justice K. Ganguly in Civil Order No. 3088 of 1991.

From the argument made by the learned Advocates for both, the parties there appears some salient features of this case and this prompts me to consider first the order No. 44 dated 7-9-1982 passed by the trial court. It appears from the paper book that the order No. 44 dated 7-9-1982 was in connection with a petition u/s 17(2) of the West Bengal Premises Tenancy Act filed by the defendant. It is observed by the learned Munsif in the said order that the suit, was received back on remand on one of the grounds that the petition u/s 17(2) of the Act filed by the defendant was not disposed of. The learned Munsif found that the defendant stated in the said petition that he was never a monthly tenant of the plaintiff under the West Bengal Premises Tenancy Act and the defendant held the suit premises as a thika tenant under the Calcutta Thika Tenancy- Act and defendant, thus, constructed temporary structures with tiles shed and brick wall on the said land. In the petition u/s 17(2) of the Act the defendant wanted the trial court to determine the relation of the parties as such, as it was found by the learned Munsif. The petition was contested by the plaintiff by filing written objection in which the material allegation that the defendant was a thika tenant under the plaintiff was denied and it was also denied that the defendant constructed a temporary structure on the vacant land of the suit property. It appears from the said impugned order that at the time of hearing the defendant was absent on repeated calls and the learned Munsif was pleased to dispose of the petition on merits. The learned Munsif thereafter having discussed the materials on record and on the petition and written objection particular/ in view of a series of rent receipts showing that the defendant was the tenant under the plaintiff and the corporation tax receipts filed by the plaintiff and also the registered sale deed in the name of the father of the plaintiff in respect of the suit premises and also having considered that no documentary evidence was filed by the defendant/tenant, was pleased to dismiss the petition u/s 17(2) of the West Bengal Premises Tenancy Act. Against the said ex parte order passed by the trial court the defendant had filed one petition with a prayer to recall the said exparte order which was disposed of by the learned Munsif by his Order No. 78 dated 22-2-1985. By the said order the learned Munsif was pleased to dismiss the said petition of the defendant on contest.

It appears from the said Order No. 78 dated 22-2-1985 that the ground of absence of the defendant at the time of hearing of the petition u/s 17(2) of the West Bengal Premises Tenancy Act was attributed to the sudden illness of Mr. Lew Banerjee, the only tadbirkar of the defendant in the suit. It was also stated in the said petition by the defendant that due to such sudden illness the said tadbirkar could not contact the lawyer of the defendant and as such no step was taken. The said petition was contested by the plaintiff before the learned Munsif and it was contended by the plaintiff that on the date of hearing of the petition u/s 17(2) of the West Bengal Premises Tenancy Act i.e. on 2-9-1982 the defendant No. 1 was present in the court and on call Mr. R. C. Ganguly, learned Advocate for the defendant informed the court that he had no instruction from the defendant to argue the matter. It was also contended that when the petition was taken up for hearing at 4 p.m. one Advocate came with a petition praying for adjournment and as such it was absolutely false that the defendant was ill and no step was taken on 2-9-1982. Both the parties adduced evidence before the learned Munsif and after having considered the facts and circumstances the learned Munsif arrived at the conclusion that Mr. Lew Banerjee was ill on the date of hearing. But the learned Munsif could not allow the petition on the ground that the order No. 44 dated 7-9-1982 was a comprehensive order and as such the same was an appealable order. Against the said order the defendant went on revision before the High Court and the High Court by its order dated 10-6-1988 in connection with Civil Rule No. 1264 of 1985 was pleased to discharge the Rule having vacated all the interim orders. It was observed by the High Court in that order as follows:

"I am of the view that the learned Munsif passed this order after considering the relevant materials and that I do not find any Illegality to interfere with such order passed by the learned Munsif in revision. I also do not find that the learned Munsif had failed to exercise his jurisdiction and/or acted illegally or with material irregularity in this matter."

Thereafter. the defendant filed an application u/s 151 of the CPC before the learned Munsif with a prayer to determine the arrears of rent to be deposited by the defendant. And the said application was rejected on contest by the learned Munsif with the observation that earlier the petition under Section. 17(2) of the West Bengal Premises Tenancy Act was rejected and it was upheld by the High Court in C.R. No. 1263 of 1985. It was also observed by the learned Munsif that as the defendant was held to be a tenant under West Bengal Premises Tenancy Act it was the duty of the defendant to ask for determination of the rent, but in the petition for consideration before the learned Munsif the defendant did not state anything as regards the rate or the period since when the defendant did not pay the rent and in such circumstances the learned Munsif, came to the conclusion that the petition is nothing short of the device to drag the suit Thus, the learned Munsif by his order No. 101 dated 7.9.1989 rejected the prayer of the defendant. Against that order the defendant came before the High Court in its revisional jurisdiction and the matter was heard by His Lordship Mr. Justice A. K. Nandy in Civil Order No. 3399 of 1989. His Lordship was also pleased to reject the said revisional application being not maintainable and in doing so the following observations were made by it Lordship:

"In my opinion, this case does not warrant interference for the simple reason that the law of limitation will come to operate. Initial error was committed by the trial court while passing an order u/s 17(2) of the West Bengal Premises Tenancy Act. While the court found him to be a premises tenant, the court ought to have worked out the total amount of rent in arrear. The trial court did not do it Therefore, a revision would lie against that defective order. The tenant had not chosen to do so. Now, he cannot by virtue of Section 151 again take an opportunity of questioning the initial defective order u/s 17(2) of the West Bengal Premises Tenancy Act."

After drawing the conclusion in the order His Lordship has also observed that if law permits the defendant/revisionist can very well challenge the order in appeal and in such case the order passed by His Lordship shall not operate as a bar.

The defendant thereafter filed an application under Order 39 Rule 7 of the CPC before the trial court which was rejected by the trial court and thereafter by the learned Additional District Judge, Alipore, Third Court and against those orders the defendant moved the High Court. His Lordship Mr. Justice Kalyanmoy Ganguly had disposed of the said petition in Civil Order No. 3088 of 1991 with the observation that in view of the admission that there was no structure on the suit property on the date of the filing of the petition there was no necessity for the appointment of any pleader commission. Ultimately the petition was rejected by His Lordship.

Keeping all this background in mind it appears to me whether the provisions of Section 105 of the CPC entities the defendant/appellant to reopen the issue involved in the petition u/s 17(2) of the West Bengal Premises Tenancy Act. Sub-Section (1) of Section 105 of the CPC reads as under:

"Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal."

Thus on a plain reading of the provisions of the above quoted Section it appears that if there is error, defect or irregularity in any order affecting the decision of the case the same may be set forth as a ground of objection in the memorandum of appeal.

The learned Advocate for the appellant has referred to the ratio decided in the case of Sk. Ali Sojjad vs. Moulavi Jafar Ali Khan, (1980) 1 CLJ 442. In the said case the plaintiff filed a suit for eviction of the defendant on the ground of default in payment of rent. The defendant denied relationship of landlord and tenant between the parties. The suit premises was governed by the West Bengal Premises Tenancy Act, 1956. The Trial Court found that there was relationship of landlord and tenant between the parties and it further found that the defendant was in arrears of rent. The suit was decreed by the trial court and the findings were affirmed by the lower appellate court. Thus, the Second Appeal was filed by the defendant and it was contended by the defendant/appellant that when the court had found that there was relationship of landlord and tenant, it was the duty of the court to determine the arrears of rent and to make necessary directions for payment of the same. It was also submitted that Section 17(2) of the Act was amended in 1959 by the Amendment Act 27 of 1959 but the said Amendment had no retrospective operation and even then the court was required to pass appropriate orders after determining the question of relationship of landlord and tenant between the parties. It was also submitted that if an order be passed directing the defendant to deposit arrears of rent as determined by the court and if the amounts so determined be deposited in pursuance to the order of the court, then the defendant would have got the protection of Section 17(4) which was amended by the Amending Act of 1959 and which had retrospective effect. In such circumstances it was held by this court in the said case that the amendment of Section 17(2) by the Amending Act of 1959 had no retrospective operation. It was also held that before such amendment there was no necessity for the tenant to file a separate application u/s 17(2) of the West Bengal Premises Tenancy Act, 1956 and it was enough if the denial with regard to the existence of relationship of landlord and tenant was taken in the written statement.

The ratio decided in the case does not appear to have any application in the instant case, for in the instant case a specific petition u/s 151 of the Civil Procedure was filed by the defendant/tenant. And not only that the said petition was disposed of on merits by the trial court and it appears from the said order of the trial court as it is discussed in the foregoing pages that in the absence of the assertion made by the defendant/tenant in the said petition as to the quantum of rent and the period of arrears of rent. I may hark back to mention it here that the petition filed by the appellant/defendant before the trial court u/s 17(2) of the West Bengal Premises Tenancy Act was rejected ex parte, but on merits. Thereafter, it has already been discussed earlier, the said order of the trial court stood the test of judicial scrutiny on merits before the High Court and the High Court was also pleased to reject the revisional application filed by the defendant against ex parte order passed by the trial court. In fact, the trial court had no scope to determine the quantum of rent or the period from which the arrears of rent was due as the petition of the defendant/tenant was conspicuously silent as to the quantum of rent and the period of arrears and this leads me to hold that there was no error or defect or irregularity in the order passed by the trial court m this regard.

The learned Advocate for the appellant has then referred to the ratio decided in the case of Seth Nanak Chand Shadiram Vs. Amin Chand Pyarilal, . In the said case the scope of Section 105 of the CPC was taken into consideration and it was held that though an appeal could have been taken from the order refusing the application for amendment on the ground of limitation, yet the question could be agitated in appeal from the decree inasmuch as the order affects the decision from which an appeal has been preferred. It was also held that it is the duty of the court to correct erroneous interlocutory orders though not brought under their consideration until the whole cause had been decided and brought by appeal for adjudication. In arriving at that decision the Division Bench of this court relied on the decision made by the Hon''ble Supreme Court in the case of Satyadhyan Ghosal and Others Vs. Sm. Deorajin Debi and Another, . The Supreme Court held in that case that an interlocutory order which had not been appealed, from either because no appeal lay or even though an appeal lay was not taken, could be challenged in an appeal from the final decree or order. Thereafter, the Division Bench Of this court in the said case appears to have accepted the submissions made by the counsel for the respondent that the counsel for the respondent was right in his contention that the application for amendment was not a matter of right but the petitioner had to allege facts and the Division Bench of this court came to the conclusion that the learned Judge correctly disallowed the proposed amendment with regard to paragraph 20(a) of the plaint. Thus, the sin qua non for the application of the provisions of Section 105 of the CPC is the erroneous order passed by the lower court affecting the judgment as it appears from the decision made in the case of Nanak Chand (supra). The Division Bench of this Court of course allowed the appeal in respect of the amendment sought for with regard to paragraphs 9, 12 and 20 of the plaint as it was found that those amendments were for the amplification of the case of extension already pleaded, but the ratio decided in this case does not also come to any help of the appellant defendant in my considered view since it may be replicated, there was no error found in the order passed by the trial court.

Mr. Tandan appearing on behalf of the respondent/plaintiff has referred to the ratio decided in the case of Shyamacharan Raghubar Prasad Vs. Sheojee Bhai Jairam Chattri and Another, . In the said case the plaintiff filed an interlocutory application under Order 12 Rule 6 CPC for judgment on defendant''s admission. On its rejection, the High Court in revision allowed it and directed the lower court to pass a decree in favour of the plaintiff. The defendant''s petition for special leave to appeal to the Supreme Court was rejected. A decree was passed by the lower court thereafter as directed by the High Court. On appeal to the High Court against that decree, it was held that the order passed by the High Court in revision was final as regards that court and its correction could not be challenged in appeal before the High Court. It was further held in that case that it could be challenged only before the Supreme Court in an appeal from the final decree. In arriving at that decision the High Court at Madhya Pradesh had relied on the ratio decided by the Hon''ble Apex Court in the case of Satyadhyan (supra). Similar is the situation before me. The impugned orders passed by the trial court in connection with the application u/s 17(2) of the West Bengal Premises Tenancy Act and thereafter for determination or the arrears of rent were all on merits and stood the test of judicial scrutiny by this High Court in revision. The similar view was taken by the High Court at Patna in the ratio decided in the case of Ramsarup Dass and Others Vs. Pyare Das and Another, . In the said case the High Court at Patna went a step further to hold that the interlocutory order passed by the lower courts and confirmed in an application u/s 115 of the CPC operates as res judicata in subsequent regular appeal. The High Court at Patna in arriving at such decision had relied on the ratio decided by the Hon''ble Apex Court in the case of Satyadhyan (supra).

The facts and circumstances of this case suggest that the defendant had not come with clean hands before the court of equity inasmuch as even after the determination of relationship of the parties, the defendant instead of taking straight forward way took his adversaries through labyrinth of legal procedure. But all his attempt ultimately ended in fiasco when all his revisional applications were dismissed on contest by this court.

Although the scope of revision and that of appeal are technically different, it appears that the merits of the orders passed by the trial court once in a petition filed u/s 17(2) of the West Bengal Premises Tenancy Act and then u/s 151 of the CPC were taken into consideration by the High Court in its revisional jurisdiction and the High Court did not find any illegality in the and passed by the trial court. And in such circumstances it cannot be pleasure of a party to challenge the validity of an order of the lower court again and again before the High Court and this is perhaps what is held by Madhya Pradesh High Court and Patna High Court in the cases of Shymacharan (supra) and Ramsarup (supra). There cannot be any doubt as regards the scope of Section 105 of the CPC that an interlocutory order can be reopened in appeal, but in the instant case the situation is altogether different since the merit of the interlocutory orders passed by the trial court, as it is stated earlier, had stood the test of judicial scrutiny before this High Court. Thus. I do not also find any merits in the submission made by the learned Advocate for the appellant to hold anything otherwise than what had been decided by the trial court earlier in connection with the petition u/s 17(2) of the West Bengal Premises Tenancy Act and also u/s 151 of the Code of Civil Procedure. In fact, the defendant/tenant/appellant has forfeited his right to avail the opportunity as provided u/s 17(4) of the West Bengal Premises Tenancy Act.

In view of what has been discussed in the foregoing lines the appeal fails.

The appeal is, therefore, dismissed on contest. There will be no order as costs. The judgment and decree passed by the courts below are hereby affirmed. A copy of this judgment along with the L.C.Rs. be sent down to the courts below forthwith.