Mira Roy and Another vs Rani Chatterjee and Another

P. Mandal, J.—This second appeal is at the instance of the defendant Nos. 1 & 2/appellants and is directed against the judgment and decree dated September 19, 2011 passed by the learned Additional District Judge, Sealdah in Title Appeal No. 65 of 2009 thereby reversing the judgment and decree dated November 3, 2009 passed by the learned Civil Judge (Junior Division), 2nd Court, Sealdah in Title Suit No. 527 of 1999. The plaintiffs/respondents herein instituted the aforesaid title suit being Title Suit No. 527 of 1999 for a decree of declaration that the plaintiffs were the joint tenants in respect of the suit room as per schedule to the plaint under the defendants, order of restoration of the possession of the plaintiffs in the suit room and other consequential reliefs.

The defendants/appellants herein contested the said suit denying the material allegations raised in the plaint and it is their specific case that they filed a suit being Title Suit No. 129 of 1985 before the learned Civil Judge (Junior Division), 3rd Court, Sealdah for ejectment on the grounds of default, damages and reasonable requirement.

The plaintiffs of the instant suit entered an appearance in the said suit and filed applications under Sections 17(1), 17(2), (2A) & (b) of the West Bengal Premises Tenancy Act, 1956 and that applications were disposed of by directing the father of the plaintiffs to pay the arrears of rent at the rate of Rs. 75/- per month. But, the father of the plaintiffs died on July 13, 1988 and the balance amount had been paid. They filed an application for repair of the suit room and also for electric connection but the plaintiffs filed an application u/s 17(3) of the West Bengal Premises Tenancy Act. The said application was allowed and the suit was then decreed ex parte on the ground of default. An execution case was filed and the decree-holder got possession of the said shop room by executing the decree. Therefore, the instant suit in the present form is not maintainable at all.

Upon analysis of evidence on record, the learned Trial Judge dismissed the said suit, but, the First Appellate Court allowed the appeal preferred by the plaintiffs of the Title Suit No. 527 of 1999 and the said appeal was allowed on contests thereby setting aside the judgment and decree dated November 3, 2009 passed by the learned Civil Judge (Junior Division), 2nd Court, Sealdah. The First Appellate Court has also set aside the ex parte judgment and decree of Title Suit No. 129 of 1985 passed by the learned Civil Judge (Junior Division), 3rd Court, Sealdah. He has also held that the plaintiffs/appellants are not entitled to get recovery of possession of the suit premises in view of the provisions u/s 17(4) of the West Bengal Premises Tenancy Act, 1956 and accordingly, the respondents have been directed to restore possession of the suit premises in favour of the appellants within a period of two months from date. Being aggrieved by such judgment and decree of the First Appellate Court, this second appeal has been preferred.

At the time of admission of the appeal, the following substantial questions of law were framed for decision:--

Whether the learned Court of Appeal below committed a substantial error of law in decreeing the instant lis in view of the same being barred by res judicata;

Whether the learned Appellate Court below committed a substantial error of law in travelling even beyond the reliefs claimed by the plaintiff in the instant lis in setting aside the earlier decree passed in Title Suit No. 129 of 1985;

Whether the learned Court of Appeal below was justified in suo moto going into the veracity of the orders passed in an earlier suit u/s 17(2A)(b) and section 17(3) of the West Bengal Premises Tenancy Act, 1956 in view of the said order having been passed on contest and being unchallenged till date.

Upon hearing the learned Counsel for the parties and on going through the materials on record, I am of the view that the First Appellate Court has totally misdirected himself in coming to his conclusion in granting the decree in favour of the plaintiffs/appellants as recorded above.

The plaintiffs of the Title Suit No. 527 of 1999 filed the aforesaid suit praying for the following reliefs in the said title suit:--

a) That a decree for declaration that the plaintiffs are the jointly tenants in respect of the suit room as per schedule below at the premises No. 7/1/H/1, Hari Mohan Roy Lane, P.S. Entally, Calcutta-700015 under the defendants;

b) That to restore the possession of the plaintiffs in the suit room as per schedule below at the premises No. 7/1/H/1, Hari Mohan Roy Lane, P.S. Entally, Calcutta-700015;

c) Costs of the suit;

d) That any other order or future order or orders as your Honour may deem fit and proper.

It is an admitted position that the defendants of the said title suit got an ex parte decree of eviction on the ground of default in Title Suit No. 129 of 1985. In that suit, the defence against delivery of possession had been struck out by allowing the application u/s 17(3) of the 1956 Act. Thereafter, the decree-holder put the decree into execution by filing the Title Execution Case No. 10 of 1997 and then he got possession of the suit premises on May 22, 1997. Then the judgment debtor of the earlier suit came to Court only on March 15, 1999 and took steps for institution of the suit, i.e., almost after two years from the date of eviction. Thereafter, the suit was filed in August 1999, i.e., more than two years after the date of recovery of possession by the decree-holder through the Court.

Upon consideration of all such facts and circumstances of the earlier suit and the execution case thereon, the learned Trial Judge came to the finding that the plaintiffs were not entitled to any kind of relief as prayed for.

It may be noted herein that the decree obtained by the plaintiffs of the earlier suit of 129 of 1985 was not under challenge in the subsequent suit filed by the tenant, i.e., in Title Suit No. 527 of 1999. But, while dealing with the appeal, the First Appellate Court has practically sat over the decisions passed by the learned Title Judge in the earlier suit, i.e., Title Suit No. 129 of 1985. He has recorded that arrears of rent as decided by the learned Trial Court in the earlier suit had been paid and the applications filed by the tenant for repair and electric connection were not entertained. But, the application u/s 17(3) of the 1956 Act was entertained and it was allowed. The First Appellate Court has practically criticized the orders passed by the learned Trial Judge in the earlier suit being Title Suit No. 129 of 1985 which he cannot do, unless such matters are under challenge. Those matters could only be the subject of revision or appeal as the case may be arising out of the Title Suit No. 129 of 1985 and not in the matter of decision of the Title Suit No. 527 of 1999. Thus, in my view, the learned First Appellate Court has misdirected himself in taking up the matter of the earlier suit which is beyond the scope of the pleadings of the parties on the ground stated therein.

The plaintiffs of the Title Suit No. 527 of 1999 could have prayed for revision against the order passed on the application u/s 17(3) or review before the learned Trial Judge to show that he had complied with the directions under Sections 17(2) & (2A) of the West Bengal Premises Tenancy Act. He had not done so. Even he did not contest the suit when the matter was taken up for ex parte hearing. Ultimately, the decree was executed and the recovery of possession was obtained by the decree-holder through the Court on the date already stated and after a lapse of a period of more than two years, the plaintiffs of the Title Suit No. 527 of 1999 preferred the said suit for the reliefs already stated. So, there is an unreasonable delay in filing the suit without any attempt to set aside the ex parte decree or the order passed in the execution proceeding. Accordingly, in my view, the First Appellate Court has erred in law in setting aside the ex parte decree obtained by the appellants in the earlier suit being Title Suit No. 129 of 1985. He has also misdirected himself in directing restoration of possession of the suit property to the plaintiffs of the Title Suit No. 527 of 1999 within a period of two months from the date of the impugned order. The learned First Appellate Court has also misdirected himself by overstepping the pleadings of the Title Suit No. 527 of 1999 and similarly, he has failed to appreciate that the Title Suit No. 527 of 1999 was not maintainable as the matter was directly and substantially in issue involved in the earlier suit being Title Suit No. 129 of 1985 although, no relief was sought for in effect with regard to that suit. Therefore, in my view, the learned First Appellate Court has committed a substantial error of law in allowing the Title Appeal No. 65 of 2009 on the ground that the contention raised by the plaintiffs of the Title Suit No. 527 of 1999 will not be barred by the principles of res judicata by filing a separate suit.

The reliefs granted by the learned First Appellate Court are totally beyond the reliefs sought for by the plaintiffs in Title Suit No. 527 of 1999 after travelling beyond the scope of the said suit and thus, he has committed a substantial error of law in allowing the first appeal. Since there was a scope to challenge the order passed on the application u/s 17(3) of the 1956 Act by way of revision, the same matter cannot be agitated by filing a suit and as such, the Lower Appellate Court was not justified at all by taking into consideration of the orders passed on the application under Sections 17(2A) & (b) and Section 17(3) of the 1956 Act in the subsequent suit.

Moreover, the plaintiffs of the Title Suit No. 527 of 1999 being out of possession of the suit shop room w.e.f. May 22, 1997 according to the definition of tenant u/s 2(h) of the West Bengal Premises Tenancy Act, 1956, they cannot be described as tenants at all and as such, their suit for declaration and recovery of possession as prayed for is not maintainable at all.

While arguing the case on behalf of the respondents, Mr. Sk. Jainal Abedin, learned Advocate has referred to the decision of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, and thus, he has contended that when a litigant has practised fraud upon Court, the entire matter is vitiated. The applications filed by the defendants in the Title Suit No. 129 of 1985 had not been disposed of. It is not a matter whether the tenants had failed to pay the arrears of rent and whether the defence against the delivery of possession had been struck out by allowing the application u/s 17(3) of the 1997 Act. With due respect to him, I am of the opinion this view cannot be accepted. Accordingly, in my view, this decision will not be applicable at all.

In that view of the matter, the learned First Appellate Court has committed substantial errors of law on the points referred to above, and for that reason the judgment and decree passed by the First Appellate Court cannot be sustained. The judgment and decree passed by the learned Trial Judge should be affirmed.

Accordingly, this second appeal is allowed.

The judgment and decree dated September 19, 2011 passed by the First Appellate Court in Title Appeal No. 65 of 2009 is hereby set aside. The said first appeal stands dismissed on contests but without costs.

The judgment and decree dated November 3, 2009 passed by the learned Civil Judge (Junior Division), 2nd Court, Sealdah in Title Suit No. 527 of 1999 is hereby affirmed.

Considering the circumstances, there will be no order to as costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.