Pradip Kumar Das vs Bijoy Talukdar

Prasenjit Mandal, J.—This application is at the instance of the defendant and is directed against the Order No. 28 dated June 30, 2008 passed by the learned Civil Judge (Junior Division), Barrackpore in Title Suit No. 296 of 2005 thereby rejecting an application u/s 151 of the CPC for repair of the premises in suit. The plaintiff/opposite party herein instituted a suit being Title Suit No. 296 of 2005 against the petitioner for recovery of possession and other reliefs. The defendant/petitioner is contesting the said suit and he filed an application u/s 151 of the CPC praying for giving necessary direction upon the plaintiff to repair the suit premises. That application was rejected by the impugned order. Being aggrieved, this application has been preferred.

Now, the question is whether the impugned order should be sustained.

Upon hearing the learned Counsel for the parties and on goring through the materials-on-record, I am of the view that the learned Trial Judge has committed a mistake by holding that the Court (Trial Court) does not have the jurisdiction to pass any order regarding the prayer of the defendant u/s 151 of the CPC.

In a catena of the decisions like Somnath Mukherjee Vs. Mamata Rani Saha, , Monisha Roy and Others Vs. Biplab Sengupta and Others, , this Hon''ble Court has held that in spite of the specific provision empowering the Rent Controller to take such measures, when a suit u/s 6 of the 1997 Act is pending, the Civil Court is quite competent to entertain such application.

On the other hand, learned Counsel for the opposite party has referred to the decision o Dipak Kumar Singh Vs. State of West Bengal and Others, and Bollepanda P. Poonacha and Another Vs. K.M. Madapa, and thus, he submits that the concerned Controller is empowered to entertain the dispute in fixation of fair rent, etc and if the party has any grievance against the Order of the Rent Controller, remedy lies before the Land Tribunal. Accordingly, the petitioner ought to have approached the Tribunal first against the order of the learned Civil Judge. It is also submitted that since, there is an express bar in the Act of 1997, according to the decision of Bollepanda P. Poonacha and Another Vs. K.M. Madapa, , this Hon''ble Court should not exercise such jurisdiction.

With due respect to the learned Counsel for the opposite party, I hold that these two decisions are not applicable in the instant situation. When a civil suit is pending u/s 6 of the 1997 Act in spite of the specific provisions u/s 35 and 44 of the Act, the Civil Court is quite competent to deal with such matters.

Accordingly, I am of the view that the learned Trial Judge has committed a mistake in rejecting the said application. The impugned order is set aside.

The learned Trial Judge is, therefore, directed to dispose of the said application on merits within 30 days from the date of communication of this order.

The revisional application is allowed in the manner indicated above.

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