Tirthapati Sen vs Paresh Nath Sen

A.C. Sen, J.—This Rule was issued on December, 14, 1964, calling upon the Plaintiff opposite party to show cause why the order dated December 5, 1964, u/s 17(3) of the West Bengal Premises Tenancy Act, 1956, by Mr. S.K. Chakravartty, Judge, 8th Bench, City Civil Court, Calcutta, in Ejectment Suit No. 1012 of 1964, should not be set aside.

The opposite parties instituted a suit being Ejectment Suit No. 1012 of 1964 in the City Civil Court, Calcutta, against the Petitioner for ejectment from a portion of municipal premises No. 157/2A, Acharya Prafulla Chandra Road, in the town of Calcutta. They instituted the suit as successors to the estate of late Pravabati Dasi. According to the opposite parties, premises No. 157/2A, to which the disputed tenancy appertains, forms part of the estate of the deceased and the Petitioner was a tenant under them in respect of a portion of the said premises in the 2nd floor on a monthly rent of Rs. 55. Their further case is that the said tenancy was terminated by a notice to quit asking the Petitioner to vacate by the end of April 1964 and that the Petitioner is not entitled to any protection under the West Bengal Premises Tenancy Act, 1956, as he has not paid rent since November, 1959.

The summons appears to have been served upon the Petitioner personally under registered cover with acknowledgment due on August 6, 1964. The Petitioner appeared on August 7, 1964 and filed hit written statement on September 23, 1964. The Petitioner contended in the written statement that he was never a tenant under the Plaintiff opposite parties or under the estate which they represent, nor was he a tenant under the testatrix. His contention was that he was a co-sharer in the disputed premises and had been residing there as such and that there was no relationship of landlord and tenant between him and the Plaintiff opposite parties. He claimed to be a co-sharer to the extent of 1/4th share and asserted that he was in occupation not only of the small portion in respect of which ejectment suit had been instituted but of a much bigger portion of the said premises No. 157/2A, Acharya Prafulla Chandra Road. He denied the story of tenancy on a monthly rent and asserted that no question of default in paying rent could arise.

In para. 4 of the present petition it has been stated that an issue as to whether there is the relationship of landlord and tenant between the parties has been framed in the suit as the principal defence of the Petitioner is that he is a co-sharer and not a tenant.

On November 20, 1964, Plaintiff opposite parties filed an application u/s 17(3) of the West Bengal Premises Tenancy Act, 1956, wherein it was contended that the defence against delivery of possession was liable to be struck out on the ground that the Defendant-Petitioner failed to deposit the current rent as required u/s 17(1) and also on the ground that the Petitioner did not file any application as required by Section 17(2) raising any dispute as to the amount of rent payable.

The learned Judge of the City Civil Court allowed the application u/s 17(3) and directed that the defence against delivery of possession be struck out. The present petition u/s 115 of the CPC is directed against the aforesaid order.

Mr. Mukherjee appearing on behalf of the Petitioner contends that the learned Judge of the City Civil Court was not justified in striking out the defence against delivery of possession without first deciding the issue as to whether there was relationship o� landlord and tenant between the parties. According to him, once the Defendant denies that he is a tenant, the Court must decide, before taking any other step in the suit, whether there is relationship of landlord and tenant between the parries. He further submits that the Court cannot exercise jurisdiction u/s 17(3) unless it is established beyond reasonable doubt that the Defendant is a tenant. He says that the language of Section 17(3) leaves no room for doubt that his contention is correct. Section 17(3) reads as follows:

If a tenant fails to deposit or pay any amount referred to in Sub-section (1) or Sub-section (2), the Court shall order the defence against delivery at possession to be struck out and. shall proceed with the hearing, of the suit

Mr. Mukherjee argues that there cannot be any question of depositing or paying any amount referred to in Sub-section (1) or Sub-section (2) of Section 17 unless the Defendant is a tenant. Such failure to deposit or pay being the condition precedent to exercising jurisdiction u/s 17(3), there is no possibility of the condition precedent being, fulfilled unless the Defendant is a tenant. He, therefore, concludes that no order striking out defence can be passed u/s 17(3) unless the Defendant is a tenant and that consequently if any order is passed u/s 17(3) when the Defendant denies that he is a tenant without first deciding that question, the order is liable to be set aside.

It goes without saying that no order u/s 17(3) can be passed if in fact the Defendant is not a tenant. As was pointed out by Chakravartti, C.J. in D.R. Gellatly Vs. J.R.W. Cannon, , "the rent Act can apply only to tenants". Chakravartti, C.J. had to decide a case under the West Bengal Premises Rent Control Act, 1950. Section 14(4) of the said Act provides as follows:

If the tenant contests the suit, as regards claim for ejectment, the Plaintiff landlord may make an application at any stage of the suit for order on the tenant-Defendant to deposit rent and also the arrears of rent, if any and the Court may make an order for deposit of rent and the arrears of rent, if any and on failure of the tenant to deposit the arrears of rent the rent the Court shall order the defence against ejectment to be struck out....

The tenant in his defence in that case took the plea that there was no relationship of landlord and tenant between him and the Plaintiff opposite parties. It was contended on behalf of the tenant that since that defence had been taken in the written statement, there could not be any question of making any order u/s 14(4) till the issue raised by the tenant was decided against the tenant and it was held that he was, in fact, a tenant. Chakravartti, C.J. on this contention observed as follows:

That contention appears to me to be right. The Rent Act can apply only to tenants. In fact, Section 14(4) says that an order under that section will be made if the tenant contests the suit. If the person sued as tenant pleads that he is not a tenant, then till that question is decided against him, there can be no question of proceeding against him as tenant or applying to him Section 14(4) or any other provisions of the Rent Act.

The same view was taken by another Division Bench of our High Court presided over by Das Gupta, J. (as his lordship then was) in Ashalata Mitra v. A.D. Viz (1955) 59 C.W.N. 692 (3). Das Gupta, J. who delivered the judgment observed as follows:

In my judgment it is the Court''s duty when an application is made u/s 14(4) to decide for the purpose of the application, first that there is relationship of landlord and tenant in case this is disputed....

These observations were no doubt obiter dicta but the correctness of the proposition laid down is beyond question.

Those observations, no doubt, were made in connection with the West Bengal Rent Control Act, 1950. It is to be considered how far the principle enunciated by Chakravartti, C.J. and Das Gupta, J. quoted above applies to the West Bengal Premises Tenancy Act, 1956 (Act XII of 1956). This Act was amended by the West Bengal Tenancy (Amendment) Act (Act XXVII of 1959) by which the original Sub-section (2) of Section 17 was substituted by the present Sub-section (2) of Section 17. The substituted Sub-section (2) of Section 17 became effective on and from February 29, 1960.

There is scarcely any room for doubt that, before February 29, 1960, if any person sued as tenant pleaded that he was not a tenant, there could be no question of proceeding against him as tenant for striking out his defence against delivery of possession u/s 17(3) of the Act. If any authority is needed for this proposition, reference may be made to the decision of a Division Bench in Biswanath v. Annapurna (1960) 65 C.W.N. 149. There the Defendant in her written statement, inter alia, took the plea that her son Anil was the original tenant, that on the death of Anil his two sons became the tenants of the suit premises and that consequently the suit could not proceed in their absence. On the very day the written statement was filed, the Plaintiff filed a petition u/s 17(3) for striking out the defence against delivery of possession for alleged non-compliance with the provisions of Section 17(1) in depositing rent. The application of the Plaintiff was opposed by the Defendant on the ground that not she but her two grandsons were the tenants of the disputed premises. P.N. Mookerjee, J. who delivered the judgment observed as follows:

A dispute as to the existence of relationship of landlord and tenant between '' the parties does, in our opinion, as already sufficiently indicated above, affect the question of rent payable by a tenant to a particular landlord and in that view of the matter, in a case where such a dispute has been raised, unless and until the Court has decided and determined that dispute and made an appropriate order u/s 17, no question of striking out the defence u/s 17(3) can arise provided, of course that the said dispute is a bona fide dispute, as, otherwise, the said Sub-section (2) would not be attracted.

The above passage clearly indicates that before the commencement of the amending Act of 1959, the defence against recovery of possession could not be struck out unless the Court had decided the dispute raised by the tenant by an averment either in the written statement or in his objection to the Plaintiff''s petition u/s 17(3) or in both that he was not a tenant under the Plaintiff. P.N. Mookerjee, J., however, thought that the decision was to be made u/s 17(2), as it stood before its amendment by the amending Act of 1959, because, in his opinion,

a dispute as to the existence of relationship of landlord and tenant between the parties will be a dispute under or within the contemplation of Sub-section (2) of Section 17.

Under Section 17(2), as it stood before its amendment by the amending Act of 1959, there was no time limit for raising a dispute under that sub-section. In Taraknath v. Lt. Col. Karuna Kumar (1958) 62 C.W.N. 830, decided by a Division Bench presided over by Das Gupta, J., as his Lordship then was their Lordships held approving the decision of Renupada Mukherjee, J. sitting singly in Dwijesh Chandra Maitra v. Kshitish Chandra Ghose (1957) 61 C.W.N. 837 that the time limit prescribed in Sub-section (1) of Section 17 was not applicable to cases arising under Sub-section (2) of Section 17. Their Lordships not only rejected the argument that deposits or payments were to be made under Sub-section (2) of Section 17 within one month of the service of the summons, but also the argument that at any rate the dispute as to the amount of rent payable must be raised within the aforesaid period. In that case the dispute as to the amount of rent payable was raised by the tenant, for the first time long after the expiry of one month after the service of the writ of summons, in his objection to the application filed by the Plaintiff u/s 17(3). The defence was struck out by the trial Court without determining the dispute in the view that such dispute had to be raised within one month of the service of the writ of summons. Their Lordships set aside the order of the this Court and ordered that the dispute as regards the amount of rent payable be determined by the trial Court.

After amendment by the amending Act of 1959 Sub-section (2) of Section 17 stands thus:

If in any suit or proceeding referred to in Sub-section (1) there is any dispute as to the amount of rent payable by the tenant, the tenant shall, within the time specified in Sub-section (1), deposit in Court the amount admitted by him to be due from him together with an application to the Court for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable....

Therefore, under the existing law, if there is any dispute as. to the amount of rent payable by the tenant, the tenant is bound within one month of the service of the writ of summons on him to deposit in Court the amount admitted by Mm to be due from him together with an application to the Court for the determination of the rent payable. According to the view expressed by P.N. Mookerjee, J. in Biswanath v. Annapurna (Supra), the phrase any dispute as to the amount of rent payable by the tenant includes a dispute a m the existence of the relationship of landlord and tenant. We fully agree with this view. So, where the person sued a tenant denies that he is tenant under the Plaintiff, he thereby asserts that nothing is due from him. Therefore, it is not necessary, for him to deposit any amount as rent but he must raise the dispute as to the existence of the relationship of landlord and tenant within one month of the service of the writ of summons. If he fails to do so, or if the application raising the dispute is filed beyond the period of limitation prescribed by Sub-section (1) of Section 17, the Court is not required to decide the dispute at the instance of the Defendant sued as tenant.

But what will happen when the Defendant has not raised any dispute denying the relationship of landlord and tenant within the time prescribed by Sub-section (2) of Section 17, but the Plaintiff file a petition under Sub-section (3) of Section 17 praying that the defence against delivery of possession be struck out for non-compliance on the part, of the Defendant with the requirements of Section 17(1).

This is exactly what has happened in the instant case. The written statement was filed on September 23, 1964. In the written statement it was stated that the Defendant was not a tenant under the Plaintiff but his co-sharer and that he was in occupation of a part of the disputed premises including the portion which, according to the Plaintiffs, was the subject-matter of tenancy, in his own right, as a co-sharer. It appears that an issue has been raised in the suit as to whether the Defendant was a tenant under the Plaintiff. The petition u/s (3) was filed by the Plaintiff opposite parties on November 20, 1964. It is not clear whether any written objection was filed by the Defendant Petitioner stating that as there was no relationship of landlord and tenant between the parties, the question of striking out his defence against delivery of possession could not arise. It was, however, contended at the hearing of the said petition u/s 17(3) that inasmuch as the Defendant had never been a tenant under the Plaintiffs he was not required to raise any dispute under Sub-section (2) of Section 17.

The learned Judge of the City Civil Court allowed the petition u/s 17(3) without deciding the dispute raised by the Defendant Petitioner as to the existence of the relationship of landlord and tenant between the parties. The reason is to be found in the following passage from the judgment of the trial Court:

It is clearly laid down in 65 C.W.N. 149 that the dispute as to the existence of the relationship of landlord and tenant between the parties is a dispute u/s 17(2) of the Act. Section 17(2) of the Act has been amended.... The amended section would show quite clearly that the dispute has to be raised within one month from the date of the service of summons. Here no such application has been filed and the written statement in which the dispute has been raised, has also been filed beyond one month in my view whether there is any relationship of landlord and tenant between the parties or not, it is the duty of the Defendant, if the denies this relationship, to raise such a dispute within one month from the date of service of the summons, and-if no such dispute has been raised, the Court has no option but to strike out the defence against delivery of possession.

According to the reamed Judge it is the duty of the Defendant, if fee denies that he is the tenant of the Plaintiff to raise the dispute within the time specified in Section 17(2);but it is also the duty of this Court when an application is made by the Plaintiff u/s 17(3) decide for the purpose of that application that there is relationship (sic) landlord and tenant in case that is disputed. The Court cannot avoid this duty simply because the tenant has not disputed his relationship with the Plaintiff by an application u/s 17(2) within the time specified. In our opinion, even if the tenant fails to raise the dispute as to relationship of landlord and tenant by an application u/s 17(2) within the time specified but raises the dispute by way of objection to the application filed by the Plaintiff u/s 17(3), it is the Court''s duty to deckle that dispute for the purpose of deciding the application u/s 17(3). The dispute as to the relationship of landlord and tenant may be raised in the written statement filed by the Defendant in the main suit and where the written statement has been filed, as in the instant case, before the date fixed for die hearing of, the application trader Section 17(3) held by the Plaintiff and at the hearing of the petition the Defendant wants to give evidence to make out a prima facie case in rapport of the statement in the written statement that he is not the tenant of the Plaintiff, it is the duty of the Court to give the Defendant that opportunity. It may be noted that by an order u/s 17(3) the Court shall order the defence against delivery of possession to be struck out. As pointed out by Das Gupta, J. in Tarak Nath Gupta''s case (Supra) that it is absurd and unrealistic to strike out a defence before a written statement has been filed. His Lordship thinks that

the law does not entitle the Court to anticipate a defence and strike out the defence in anticipation.

This position has not in any way been altered by the amending Act of 1959, because Sub-section (3) of Section 17has not been touched by the said amending Act. His Lordship went a step further and observed:

If an application u/s 17(3) is made by the landlord before the written statement raising a defence against ejectment has been filed, the proper course for the Court to take is to reject the application as premature, or taking the most favourable view to the landlord, he may perhaps keep such an application pending till such a written statement is filed and then if. a written statement is filed and the defence against ejectment raised, take up the application, u/s 17(3) and if on considering the fact he is of opinion that the defence should be struck out, he will make an order that the defence that has been made to be struck out.

We respectfully agree with the view expressed by Das Gupta, J.

If no order u/s 17(3) can be passed before the mitten. statement has been filed and if the Defendant in the written statement filed denies the relationship of landlord and tenant it is absurd to suggest that the Court should refuse to decide the dispute, which affects the very foundation of the suit and the application u/s 17(3) simply because the Defendant failed to raise the dispute by and independent petition u/s 17(2) within the time prescribed; it is equally absurd to suggest that the Defendant should not be given opportunity to adduce evidence in order to defeat the Plaintiff petition u/s 17(3) on the self-same ground, namely, Defendant to failure to apply in time u/s 17(2).

In the instant case the learned Judge has himself noted in the order moved against that in his written statement, he (the Defendant) has denied that he is a tenant under the Plaintiff, but rather alleges that he is a co-sharer of the Plaintiff.

That being the position, the learned Judge, before striking out the defence against delivery of possession, should have decided whether, in fact, the Defendant is a tenant under the Plaintiff, because the language of Section 17(3) makes it clear that an order under that sub-section can be made only when the Plaintiff is the landlord and the Defendant is the tenant. An order u/s 17(3) cannot be made unless the Plaintiff makes out a prima facie case that he the landlord and the Defendant is his tenant and that the Defendant who is his tenant has failed to deposit or pay any amount referred to in Sub-section (1) or Sub-section (2) of Section 17.

The dispute as to the existence of the relationship of landlord and tenant is not merely a dispute as to the amount of rent payable by a tenant but it is something more, it goes to the very root of the matter. The suit for ejectment as well as the proceedings u/s 17 are based on the relationship of landlord and tenant and if this relationship is challenged by the Defendant 1 is the duty of the Court first to ascertain whether the challenge is bone fide and then to come to a decision on the question of relationship not only for the purpose of the suit but also for the purpose of the proceeding u/s 17(3).

The question may be examined from another point of view. Where, as in the present case, the application u/s 17(3) is filed a few months after the written statement and the Court first decides as a preliminary issue whether the Defendant is the tenant of the landlord and the decision is in favour of the Defendant, can it be said that even in such a case the Court shall order the defence against delivery of possession to be struck out simply because the Defendant failed to raise the dispute by an application u/s 17(2) within the time prescribed? Certainly not and there is nothing in the West Bengal Premises Tenancy Act, 1956, as subsequently amended by the amending Act of 1959 which prevents the Court from first deciding (sic) issue in the suit as to whether the Defendant is the tenant of the 17(3) and thereafter deciding the Plaintiff''s application u/s 17(3) or from deciding the said issue and the said application under against together. In either case the Court cannot strike out defence not (sic) delivery of possession on the ground that the Defendant did issue (sic) u/s 17(2) within the prescribed time, even if the said the time decided in favour of the tenant. Moreover, in our opinion, (sic) prescribed for raising a dispute by the Defendant u/s 17(2) no application to the plea taken by the Defendant that he is not a tenant by way of objection to an application by the Plaintiff u/s 17(3), just as in a suit the law of limitation would not ordinarily apply to defence.

In the result the Rule is made absolute. The order of the learned Judge of the City Civil Court is hereby set aside and the case is sent Stack to the trial Court for re-consideration of the application u/s 17(3) in the light of the observations made above. Liberty is given to either party to adduce evidence on the point or points in dispute in the present matter and the learned Judge will decide the same on evidence for the purpose of the proceedings u/s 17(3).

Costs of this Rule will abide the final result of the proceeding, hearing fee being assessed at 3 gold mohurs.

Let the records be sent down early.

K.C. Sen, J.

I agree.