Subir Saha vs Sankarlal Mitra and Others

Samapti Chatterjee, J—The petitioner/defendant No. 3 filed the present revisional application assailing the order No. 81 dated 16th February, 2015 passed by the Learned Judge, 3rd Bench, Small Causes court at Calcutta in Ejectment Suit No. 119 of 2005.

The defendant No. 3/petitioner''s case in brief is as follows:-

That the present suit for eviction has been initiated by the plaintiff/opposite party against his predecessor-in-interest namely Sri Kalipada Saha for eviction and recovery of Khas possession of the suit premises. It was also mentioned in the said suit that the said Kalipada Saha, since deceased was inducted as a tenant in respect of the suit premises in June, 1985 at a monthly rent of Rs. 125/- payable as per english calendar month.

It also appears that plaintiff/opposite party in the suit has claimed the monthly rent to be Rs. 550/- instead of Rs. 125/- and for establishing the same in proceedings under Section 7(2) of WBPT Act, 1997 the plaintiff/opposite party produced some documents bearing the signature of Kalipada Saha and his defendant/plaintiff which has been marked as Exbt. C, D and E. The plaintiff/opposite party categorically denied that rent has ever been enhanced from Rs. 125/- to Rs. 550/-.

It was also the case of defendant/petitioner that the signature of the defendant No. 3 or of Kalipada Saha on the said documents marked as Exbt.C, D and E are not at all genuine. On the basis of that the defendant No. 3/petitioner filed an application praying for appointment of handwriting expert at his own cost for comparison of the signature of Kalipada Saha on Exbt.C with admitted signature on Exbt.A and for comparison of the disputed signature of the defendant/petitioner on Exbt.D and E with his admitted signature on deposition sheet. The plaintiff/opposite party by filing written objection on 28th February, 2014 challenged the maintainability of the petition for appointment of handwriting expert and the plaintiff/opposite party contended in the written objection that it is merely an attempt on the part of the defendant to drag and delay the matter. The said application for appointment of handwriting expert was rejected by the Learned Court below. Challenging the same the defendant No. 3/petitioner filed a revisional application being C.O No. 2247 of 2014 before this Hon''ble court which was ultimately dismissed by this Hon''ble court vide Order dated 16th July, 2014.

At the time of dismissal of the said revisional application the Hon''ble Court held as follows:-

"Those documents are relevant for the purpose of ascertaining the rate of rent and not otherwise. The jural relationship of the landlord and tenant is not in dispute and, therefore, this Court does not find any illegality and/or infirmity in rejecting the said application.

However, this Court must record that the Trial Court shall consider the admissibility of those documents at the time of considering an application under Section 7(2) of the said Act and in the event, the Court finds that the rate of rent as claimed by the plaintiff/opposite party is correct, shall permit the petitioner to deposit the same in Court."

Thereafter the said application under Section 7(2) of WBPT Act, was allowed by the Order No. 81 dated 16th February, 2015 passed by the Learned 3rd Judge, Small Causes Court at Calcutta in Ejectment Suit No. 119 of 2005 with the following orders:-

"That the petition under Section 7(2) of the WBPT Act stands disposed of on contest without any order as to cost.

Till date, the defendants are found to be a defaulter in payment of rent for only 134 months being December, 2003 till January, 2015.

At the adjudicated rate of Rs. 550/-, arrear rent for 134 month arrives at Rs. 73700/-. Statutory interest @ 10% stands at Rs. 7370/-.

Thus, an amount of Rs. 81070/- (73700 + 7370) is found to be due and payable by the defendants towards arrear rent with interest. They directed to deposit the said amount of Rs. 81070/- in Court within a period of one month from the date of this order.

The defendants are further instructed to go on depositing the current month by month rent in Court from February, 2015 onwards within the time prescribed u/s 7(1)(C) WBPT Act, i.e. by the 15th day of each succeeding English Calendar month at the rate of Rs. 550/- p.m.

Let me reiterate that the findings regarding the rate of rent is tentative and the plaintiff shall not be allowed to withdraw the rent if any deposited in Court at that rate, till disposal of the Suit.

Fix 10.4.15 for framing of issues (including one regarding the dispute relating to rate of rent)."

Challenging the same, the defendant No. 3/petitioner filed the present revisional application.

Mr. Anit Kr. Rakshit, learned Advocate appearing for the defendant No. 3/petitioer submits that at the time of allowing the petition under Section 7(2) of the WBPT Act, the Learned Judge erred in law by holding "In this case,, signatures of Kalipada Saha in Exbt.A (admitted) and Exbt. C (disputed) appeared to the naked eye are similar and almost identical".

Mr. Rakshit vehemently urged that it is crystal clear that Learned Judge was not at all sure about the genuineness of the signature in Exbt. A and Exbt.C. That is why on the basis of apprehension Learned Judge came to the conclusion that the signature of Kalipada Saha in Exbt.A (admitted) and Exbt.C (disputed) are similar and almost identical which clearly shows that he was not 100 % confident or satisfied that the signature on both the documents are similar and identical.

That being the position, Mr. Rakshit contended that this type of observation made in respect of the documentary evidence by the Learned Judge will frustrate the petitioner/defendant No. 3''s case in the pending Ejectment suit. Though admittedly on the face of the impugned order it is crystal clear that the Learned Judge failed to come to the conclusion regarding genuineness of the signatures appearing in Exbt. A (admitted) and Exbt.C (disputed). Therefore, the impugned order should be set aside by this Hon''ble Court by directing the Learned Court below to appoint handwriting expert to examine the genuineness of the signatures as disputed by the defendant No. 3/petitioner.

Mr. Sourav Sen, learned Advocate appearing for the plaintiff/opposite party vehemently urged that there is no scope to appoint handwriting expert at this stage when admittedly the application under Section 7(2) of WBPT Act has been disposed of by the impugned order No. 18 dated 16th February, 2015.

Mr. Sen further strongly contended that the petitioner''s application for appointment of handwriting expert was previously rejected by the Learned Court below and challenging the same the petitioner earlier filed a revisional application being C.O. No. 2247 of 2014 which was dismissed by this Hon''ble Court vide order dated 16th July, 2014. The petitioner/defendant No. 3 did not challenge the said order of this Hon''ble court by preferring any SLP before Hon''ble Apex Court. Therefore, that order dated 16th July, 2014 is binding upon the parties and has attained its finality.

Mr. Sen further contended that present revisional application has been filed with a ulterior motive to drag and frustrate and delay the proceedings of Section 7(2) of WBPT Act arisen out of Ejectment suit.

Mr. Sen also vehemently urged that the observation/view made in application under Section 7(2) of WBPT Act is tentative and it has not reached its finality. More so, the defendant No. 3/petitioner will get chance/scope to adduce evidence at the time of full fledged trial which would take place at the time of evidence in the Ejectment suit. In support of his contention Nanda Gopal Das Vs. Rabindra Nath De and Another, 92 CWN 1 which is quoted below:-

"Para-12 - That apart, the question before Mukherji, J., in J.K. Sons (supra) was whether the determination of the rate of rent under s. 7(2) of the Act could again be reopened at the trial by striking an Issue to that effect afresh, and the learned Judge answered the question in the negative. The learned Judge thought that since s.7(2) on its express terms requires determination of the rate of rent to be made firstly by a preliminary order made under such determination made by the final order must be final for all purpose. But even though not so expressly labelled, the determination of disputes under s. 14(4) of the 1950 Act was also obviously final, but as held in Ashalata Mitra (supra), it was final only for the purpose of the application. We do not find any material difference in the relevant context to indicate that while a determination of rate of rent under s. 14(4) of the 1950 Act was final for the purpose of the relevant application only, a similar determination under s. 7(2) of the 1956 Act is final also for the purpose of trial. At any rate, in view of the observations made in the later Division Bench decision of this Court in Aloka Ghose (supra), which is a decision under s. 17 of the present Act of 1956, the matter must be taken to have been clinched . We are, therefore, of the opinion that in view of the ratio in the Division Bench decisions in Ashalata Mitra (supra) and in Aloka Ghose (supra), we would have to hold that the determination of arrears and default under an application under s. 17(2) would be final for the purpose of that application only, unless the Issue of default in the suit and the application under s. 17 were heard and decided together."

Considering the submissions advanced by the learned Advocates appearing for the respective parties and after perusing the records I find that at present there is no scope to direct the Learned Court below to appoint handwriting expert as it is evident from the records that the defendant No. 3/petitioner filed an application for appointment of handwriting expert to examine the admitted and disputed signatures of Kalipada Saha as well as the defendant No. 3 but that was rejected by the Learned Court below. Feeling aggrieved by that order earlier the defendant No. 3/petitioner filed a revisional application being C.O. No. 2247 of 2014 which was rejected by this Hon''ble Court vide order dated 16th July, 2014.

I also find some substance in the argument of Mr. Sen that in the finding recorded by the Learned Judge at the time of allowing of the application under Section 7(2) of the WBPT Act, 1997 is nothing but a tentative findings and ultimately the petitioner/defendant No. 3 will get chance to adduce evidence when the full fledged trial would take place in Ejectment suit.

Therefore, considering the submissions of Mr. Sen and also considering the decision reported in 1987(1) CHN (Cal) (Supra) I have no hesitation to hold that the present revisional application should not be sustained in the eye of law and it should be dismissed.

Accordingly the present revisional application is dismissed without any order as to costs.

Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties after fulfilling all the formalities.