Sri Shyamal Auddy & Ors vs Sri Asit Kumar Haldar
2021 Latest Caselaw 4487 Cal

IN THE HIGH COURT AT CALCUTTA
           CIVIL APPELLATE JURISDICTION
                 APPELLATE SIDE

Present:

The Hon'ble Justice Arindam Sinha
           And
The Hon'ble Justice Sugato Majumdar


                 S.A. 383 of 2019
                                 +
  IA No.CAN 1 of 2019 (Old No.CAN 10722 of 2019)
                    (not found)
             (Via Video Conference)
                                    r




               Sri Shyamal Auddy & Ors.
                         Vs.
                Sri Asit Kumar Haldar


   For appellants       : Mr. Buddhadev Ghosal, Adv.

   For respondent       : Mr. Gopal Chandra Ghosh, Adv.

   Heard on             : 2nd September, 2021.

   Judgment on          : 2nd September, 2021.

Arindam Sinha, J.: Mr. Ghosal, learned advocate appears

on behalf of appellants and submits, the trial and lower appellate

Courts concurrently held against his clients for being evicted by

applying section 2(g) in West Bengal Premises Tenancy Act, 1997.

He submits, his clients' father was original tenant. He died in

year 1989, when the 1997 Act was not there. Their mother then

became tenant. She died in year 2005. Under clause (h) in section

2 of West Bengal Premises Tenancy Act, 1956, his clients, having

had resided with their father in the demise, inherited the tenancy

alongwith their since deceased mother. A question of law arises

on whether such heritable right could be taken away by operation

of change in the law.

He submits further, another question of law arises.

This is on the factual premise. Even after the period of 5 years

upon commencement of the 1997 Act had been applied, thereafter

plaintiff participated in the proceeding in suit, under section 7 of

the later Act, regarding, inter alia, payment of rent, wherein he

admitted appellants were his tenants. That made his clients

tenants under the 1997 Act. He relies on order dated 11th

November, 2019 made by a coordinate Bench in SAT 306 of

2019 (Avijit Mukhopadhyay vs. Ashis Kumar Bose), the

paragraph therefrom reproduced below.

"As far as the ground under section 2(g) of the Act of 1997 is

concerned, it appears that in course of proceedings under

Section 7(2) of the said Act, the plaintiff admitted that the

defendant was a tenant. Once such admission was on

record, it was no longer open to the plaintiff to urge the

ground under Section 2(g) of the said Act."

Section 45 in the 1997 Act is the provision on repeal and

savings. Appellants' right claimed to be inherited under the old

Act, was not saved under the new Act. Instead the heritable

aspect of tenancy stood curtailed by the new Act. Both Courts

below found that appellants cannot seek protection after death of

original tenant, having been tenants only upto the period limited

and expired. So, the period of five years from date of coming into

effect of the new Act was applied and eviction decreed in favour of

plaintiff. Said Act being one that protects tenancies and in force,

was applied to deal with the suit and no question of law arises

thereby.

Section 7 proceeding in the suit was an interlocutory

proceeding. The purpose was to ascertain the facts and

circumstances relating to arrears and payment of rent with

reference to the landlord's grounds for eviction of appellants, as

his tenants, under section 6 of the 1997 Act. Even then the

issues in suit regarding eviction, on any of the grounds, including

default, could not be subject matter up for adjudication in the

proceeding. Upon the determination, if the tenant satisfies the

requirement in sub-section (4) of section 7, then, subject to the

proviso, in the suit there would be no order for eviction on

ground of default. The other protection available is the right to

defence on payment, pursuant to, as aforesaid, determination in

the proceeding. On pain of repetition it must be said that section

7 does not refer to meaning of tenant under section 2(g) but to

when a tenant can get protection against eviction in a suit on any

of the grounds in section 6. Applicability or operation of section

2(g) can by no stretch of imagination be a controversy to be

decided in the section 7 proceeding. As such, plaintiffs'

participation in the proceeding, in opposing it or otherwise,

cannot be seen to be admission made by him as proof of

acceptance of appellants as tenants against operation of section

2(g). That would then be decision in the suit at the interlocutory

stage, implying creation of new tenancy. Avijit Mukhopadhyay

(supra) was order passed at admission stage of the second appeal

tender. The appeal was not admitted. We don't see the same as

gives rise to a substantial question involved in this appeal.

There is no question that arises for admission of the

appeal.

SAT 383 of 2019 along with IA No. CAN 1 of 2019 (Old

No. CAN 10722 of 2019) (not found), if any pending, are

dismissed.

(Arindam Sinha, J.)

(Sugato Majumdar, J.)