Shrimati Anima Ganguly and Others vs Kalyan Kumar Neogi and Others

Kalidas Mukherjee, J.—This is an application under Article 227 of the Constitution of India assailing the order No. 126 dated September 23, 2008 passed by learned Civil Judge (Junior Division), First Court at Sealdah, 24 Parganas (South) in Title Suit No. 276 of 1992 disposing of the application u/s 17(2) of the West Bengal Premises Tenancy Act directing the defendants to deposit Rs. 5,731/- within a specified date. Being aggrieved by the said order the defendants have preferred the instant application.

The case of the petitioners/defendants is that the opposite parties instituted a suit bearing No. 276 of 1992 praying for eviction of the petitioners and for recovery of khas possession on the ground of default in payment of rent since March 2, 1988, reasonable requirement and also for mesne profits. The petitioner entered appearance in the said suit and filed written statement. The petitioners also filed an application u/s 17(1), 17(2) and 17(2A)(b) of the West Bengal Premises Tenancy Act, 1956. The application has been disposed of by the learned Judge of the Court below holding that the opposite parties are the owners of the suit premises and the petitioners are the tenants under them and that the petitioners are defaulters in payment of rent since March, 1988 and directed them to deposit Rs. 5,731/-. Although the petitioners filed an application u/s 17(2A)(b) of the West Bengal Premises Tenancy Act and prayed for payment of arrears rent by instalments to the opposite parties, the learned Judge observed that the petitioners did not press the application u/s 17(2A)b)of the Act. Being aggrieved by the said order the defendants have preferred the instant application.

The learned Counsel appearing on behalf of the petitioners submits that the learned Judge of the Court below ought to have considered the documents filed by the petitioners to the effect that the suit property is a thika Property and the opposite parties are neither the owners nor the landlord of the suit premises. It is contended by the learned Counsel that the Enquiry Officer made recommendation for accepting Smt. Anima Ganguly and others as provisional thika tenants at the premises No. 49A/H/1, Rani Harsha Mukhi Road, for an area of 300 Sq. ft., but, the learned Judge did not accept such contention on the ground that the defendants could not produce any document to show that the thika controller has accepted the defendants Smt. Anima Ganguly and others as thika tenant. It is contended that if it is accepted by the controller that the defendants are the thika tenants in that case the plaintiffs suit will fail. It is also contended that since the contention of the petitioners being thika tenants in respect of the suit premises are under consideration before the appropriate authority, it cannot also be the subject matter for consideration in the suit. It is submitted that since this question has not been decided before the appropriate authority, the learned Judge of the Court below was not justified in passing the impugned order.

The learned Counsel appearing on behalf of the opposite parties submits that the defendants filed written statement and in para 6 of the same it has been contended that the defendants have been paying rent regularly and in para 8 it has been contended that the defendants are still tenants under the plaintiff and entitled to get protection against eviction under the provisions of West Bengal Premises Tenancy Act, 1956. It is contended that the learned Judge was justified in passing the order impugned and there is no ground to interfere with the same.

In para 6 of the written statement the defendants contended that they have been paying rent regularly and, as such, the question of failure or being negligent in paying rent does not and cannot arise at all. In para 8 of the written statement it has been averred that the defendants are still tenants under the plaintiff and are entitled to get protection against eviction under the provisions of the West Bengal Premises Tenancy Act, 1956. The learned Judge of the Court below having considered the rival contentions of the parties held that there was no document to show that the controller accepted the defendants as the thika tenants. The learned Court further held on perusal of Exhibit 4 to 4b that Deb Kumar Ganguly was a tenant in respect of two rooms in premises No. 49/A/H/1, Rani Harsh Mukhi Road, Kolkata - 700 002. From the order impugned it further appears that P.W. 1 has also admitted in his cross-examination that the suit premises were constructed by the previous landlord of his father. The learned Court below also considered the registered deed of the plaintiffs and also the cross- examination of P.W. 1 wherein it has been stated that the plaintiffs have become the owners of the suit premises by virtue of a deed of sale dated 2.3.1988. The learned Court below considering materials on record held that the defendants were the tenants under the plaintiffs in respect of the suit premises and total amount of rent payable was Rs . 5731/-.

Having heard the learned Counsel for the parties and on perusal of the materials on record I find that there is no ground to interfere with the impugned order passed by the learned Court below.

In the result the application under Article 227 of the Constitution of India fails and the same stands dismissed. There will be no order as to costs.

Let a copy of this order be sent to the Court below immediately. Interim order, if any, stands vacated. The learned Judge of the Court below will dispose of the suit as early as possible.

Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.