Lt. Col. Dr. T. Banerjee vs N.P. Shah

Joytirmoyee Nag, J.—This Rule is directed against the order passed by the learned Rent Controller in K. C. Case No 3 of 1981. The proceeding before the learned Rent Controller u/s 29B of the West Bengal Premises Tenancy Act provides for expeditious disposal of an application for eviction of a tenant. The petitioner is the owner of premises No. 18A. Ramesh Mitter Road, Calcutta-25. The opposite party is a monthly tenant in respect of ground floor flat at 18A, Ra-mesh Mitter Road which consists of three living rooms one kitchen, one bathroom, one privy and a courtyard at a monthly rental of Rs. 140. The petitioner is a retired military officer and he was attached to the Army Medical Corps. He retired from active military service from the 30th July, 1977. After his retirement, he out up with his elder brother, but now since his elder brother cannot accommodate him on account of his own requirement, he requires the suit premises for his personal occupation. Hence, he filed the application u/s 29E of the West Bengal Premises Tenancy Act after giving notice to quit on the 19th Nov., 1980. After receipt of summons the opposite party entered appearance in the said proceeding and filed an affidavit and an application praying for leave to defend the eviction proceeding. He, however, did not disclose any fact either in the affidavit, or in the petition which would disentitle the petitioner from obtaining an order for recovery of possession of suit premises on the grounds specified in Clause (ff) of Sub-section (1) of Section 13. On 23-3-81 the learned Rent Controller passed the following order:

"Both the parties are present with their learned Advocates. Heard both sides. Learned Advocate has filed a leave petition on behalf of the opposite party praying for adjournment for supplementary affidavit. Keep it with record. To 7-4-81 for order on the leave petition."

After argument on 23rd March, 1981, the opposite party filed an application u/s 151, Civil P. C. praying for leave to file a fresh application for disclosing facts which would entitle the opposite party to defend the proceeding. The petitioner was neither given a copy of the application nor was he given an opportunity to object to the said application made u/s 151, Civil P. C. The learned Rent Controller accepted the said application of the opposite party and by his order dated 20-4-81 allowed the opposite party to file a fresh affidavit and fixed 7th May, 1981 for that purpose. The petitioner being aggrieved by the order dated 20-4-81 has filed the present revisional application on which the Rule has been issued.

The main objection raised by the petitioner is that the learned Rent Controller had no jurisdiction to entertain an application u/s 151. Civil P. C. inasmuch as according to the provisions of Section 29B, Sub-section (8) "the Rent Controller shall follow the practice and procedure of a Court of Small Causes including the recording of evidence" and it is submitted on behalf of the petitioner that the learned Rent, Controller being empowered to follow the procedure prescribed for a Court of Small Causes cannot exercise inherent power u/s 151. Civil P. C. as such a Court has no such inherent, power. Apart from this, it is submitted on behalf of the petitioner that the learned Rent, Controller should not have allowed the application of the opposite party and granted leave to file a fresh affidavit disclosing the grounds for eviction when the earlier affidavit did not disclose any such ground. It is only when the arguments were concluded on behalf of the petitioner and it was pointed out to the learned Rent Controller that no ground to resist the petitioner''s application for eviction was made out that the opposite party then filed an application for adjournment and permission to file a fresh affidavit was prayed for, the application being made u/s 151, Civil P. C. No copy of this application as already stated was given to the petitioner nor was he given an opportunity to object to the same. In view of this lacuna the order of the learned Rent Controller is liable to be set aside as being without jurisdiction. Learned Advocate for the petitioner in support of his submissions referred to the following cases (1) Kanwal Kishore Chopra Vs. O.P. Diwedi and Another, (2) Busching Schmitz Private Limited Vs. P.T. Menghani and Another, and (3) Shri Sarwan Singh and Another Vs. Shri Kasturi Lal, . All these cases are in connection with Section 14A of the Delhi Rent Control Act (59 of 1958). In the case reported at Busching Schmitz Private Limited Vs. P.T. Menghani and Another, stress has been laid on the summary process which has to be strictly followed and the Court cannot be fooled and statute mocked at by prolonging the procedure while taking up pleas with that object in view. "In the next case reported at page 265 of the same report the same principle has been laid down that in tenant''s application for leave to contest the landlord''s eviction petition, he is required to state facts which will disentitle the landlord from obtaining eviction. Merely negative or vague pleas to put the landlord on proof are not enough and if they are allowed to merit the grant of leave the whole object, of the summary procedure would be defeated. A plea which is extremely vague and has been raised mala fide to gain time has been rejected by the Rent Controller as it does not entitle the tenant to obtain leave to contest the eviction petition."

On the other hand, on behalf of the opposite party it is submitted that ordinarily the Rent Controller exercises his powers under West Bengal Premises Tenancy Act and is endowed, u/s 29 (6) of the West Bengal Premises Tenancy Act to exercise powers u/s 151, Civil P C. and that cannot be taken away by Section 29B Sub-section (8) as argued on behalf of the petitioner. It must not, however, be forgotten that the proceeding before the Rent Controller u/s 29B is specially meant for disposing of an application as expeditiously as possible in the case of retired military personnel and Government employees and the jurisdiction of the Civil Courts is barred in view of the fact that in ordinary civil courts suits cannot be disposed of expeditiously and this summary procedure is for the benefit of retired military personnel and Government employees and procedure laid down in the Civil P. C. has been dispensed with and the procedure and practice of a Court of Small Causes have to be followed. Ordinarily the Rent Controller is not considered to be a Court but in view of Section 29 (5) of the West Bengal Premises Tenancy Act. "The Controller will be deemed to be a Court, for the exercise of powers u/s 151 and Section 152. Civil P. C. u/s 29B, the application of the body of the Code is excluded and the provisions applicable to Small Causes Court are to be followed in an enquiry under the said section. Accordingly the Rent Controller is not clothed with inherent power for the purposes of Section 29B of the West Bengal Premises Tenancy Act. In view of the object of the Act which brooks no delay. I am inclined to accept the submission made on behalf of the petitioner that the Rent Controller acting u/s 29B cannot exercise any inherent power in view of Section 29-B (8) which expressly bars the Rent Controller from exercising powers under the Civil P. C.

In the result, the order passed by the learned Rent Controller dated 20-4-81 is set aside and the learned Rent Controller is directed to proceed from the stage prior to the passing of the order impugned.

The Rule is accordingly made absolute.

There will be no order as to costs. Let the records go down immediately.