Manatosh Lahiri vs Biswanath Bhattacharya

Amulya Kumar Nandi, J.—The plaintiff in T. S. No. 87 of 1985 of the first court of Munsif, Howrah sued the defendant for eviction from the suit property. The suit premises is governed by West Bengal Premises Tenancy Act (hereinafter called the Act). During the pendency of the petition u/s 17(2) and (2A) of the Act the defendant-petitioner preferred an application for stay of the proceeding until hearing of his petition for fixation of fair rent u/s 10 of the Act which was registered by the Rent Controller as P. T. Case no. 12 of 1989. The trial court rejected the petition. So the defendant-petitioner has preferred by his revision. There is no doubt that even after determination of tenancy or as a matter of fact after institution of suit for eviction a tenant can maintain a petition u/s 10 of the Act. The definition of tenant in section 2(h) of the Act includes a statutory tenant. Section 10 of the Act therefore brings within its scope determination of fair rent on the application of a statutory tenant. Similar question came up for consideration before a Bench of this court. In Nisit Kumar Sarkar v. Sunil Kumar Bose (89 Calcutta Weekly Notes 971) the learned Judges held that a statutory tenant can very well ask for fixation of fair rent u/s 10 of the Act.

Reiving upon the decision in P.V. Shetty Vs. B.S. Giridhar, it is urged on behalf of the petitioner that pending determination of fair rent by the Rent Controller the hearing of the petition u/s 17(2) (2A) of the Act may be stayed. In view of the statements made in paragraphs 3 to 5 of the revisional application the petition for stay is liable to be rejected. What has been sought to be said in those paragraphs is that the petitioner preferred an application u/s 10 of the Act since there is a dispute as to the rate of rent. The landlord claims that rent is Rs. 75/- per month while the tenant says that it is Rs.55/- only. I am afraid the Rent controller can hardly decide such a dispute. Furthermore, the controversy as to the rate of rent will be set at rest in the decision u/s 17(2) of the Act by the trial court itself. Therefore the civil court need not await the decision of the Rent Controller in this behalf while such a controversy is awaiting decision before itself.

Therefore P. V. Shetty''s case (supra) has no application. Even if we assume for argument''s sake that the petitioner asked for fixation of fair rent before the Rent Controller, the Supreme Court decision has no application in the facts of the present case. In that case the disposal of the suit without determination of fair rent would cause serious prejudice to the tenant since he would be denied the protection of Rent Act having regard to the contractual rent. If the Rent Controller would fix rent at Rs.500/- or below per month as against contractual rent of Rs.650/- the tenant would get protection under the Rent Act. This fact very much weighed with the Supreme Court to stay the suit. This conclusion is conspicuously absent in this case. The other factor taken into account by the Supreme Court is that the application for fixation of fair rent preceded the institution of the suit. In the instant Case the petition has been filed as late as in 1989 while the suit was filed in 1985. The belated application can hardly be held to be bonafide. It is intended to stall the suit. I have the other reason to say so. The remedy of grievance, as pointed out above, is very much available to the trial judge while he unnecessarily rushes to the Rent Controller. In this view of the matter also the stay should be refused.

A contrary view will bring about a disastrous result. The counsel for the respondent expressed his serious apprehension to the Hon''ble Judge of the Supreme Court that once the suit is stayed pending disposal of the application before the Rent Controller it will take years to decide the suit. The learned Judge did not refuse to consider the submission and so directed the Rent Controller to give top priority to the application. Once it is laid down as a blanket proposition that a suit for eviction is liable to be stayed pending disposal of an application for fixation of fair rent possibly a single suit cannot but suffer the order. And the Rent Controller will be seriously encumbered with petitions which are not all bonafide. The inevitable consequence is that numerous suits will remain stayed for wars. Supreme Court obviously did not desire this result. We must approach the problem with a little bit of pragmatism.

The petitioner suffers no prejudice or injury on account of rejection of petition for stay. Section 12(a) of the Act provides that the fixation of fair rent takes effect from the month of tenancy next after the date of application. It makes provision for recovering of excess amount paid. Since the application has been made during the pendency of the suit for eviction it would be the duty of the court to adjust the excess amount if fair rent is fixed in the meantime. In Nisit Kumar''s case (supra) the learned Judge relied upon a Bench decision in Ahmed Ali v. I. V. Claire (64 Cal Weekly Notes 391) to mean that section 17(2) of the Act is subject to the result of fixation of fair rent. If that were so, court on the application of the petitioner will adjust the excess amount even if the fair rent is fixed after disposal of the petition u/s 17(2) of the Act but before disposal of suit. If fixation of fair rent is made after the disposal of suit, an action for recovery of excess amount shall be maintainable. Section 4 of the Act does not bar such a suit. The Rent Controller may order recovery u/s 12(a) of the Act if the suit for ejectment end in dismissal. In any view of the marten therefore the petition for stay would not succeed. The revisional application accordingly fails. The observations made by me in this matter shall not influence the trial court in disposing of the suit or matters arising thereform.

Let a copy of this order go down to the court below fourthwith.