Sri Jugal Kisor Das Naskar vs Sri Dilip Das & Anr
2023 Latest Caselaw 2813 Cal

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                      IN THE HIGH COURT AT CALCUTTA
                          Civil Revisional Jurisdiction
                                 Appellate Side



                                   Present:

                The Hon'ble Justice Biswaroop Chowdhury


                              C.O. 1893 of 2022
                          Sri Jugal Kisor Das Naskar

                                   VERSUS

                             Sri Dilip Das & Anr.




For the petitioner:                       Mr. Chiranjib Sinha, Adv.
                                          Mr. Dyutiman Banerjee, Adv.
                                          Mr. Sohini Chakrbaorty, Adv.
for the opposite parties:                 Mr. Prajaaini Das, Adv.



Judgment on: April 21, 2023

Biswaroop Chowdhury,J:


      The petitioner before this Court is a plaintiff in an Ejectment

Suit in the learned Court below and is aggrieved by an order

dated 18-06-2022 passed by Learned Civil Judge Senior Division

3rd Court Alipore in Ejectment Suit No. - 26 of 2021 in directing

the petition under Section 7(1) and 7(2) of the West Bengal

Premises Tenancy Act 1997 for consideration along with the
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preliminary issue of the suit. The petitioner being aggrieved by

the said order has come up with the instant application.


     The case of the plaintiff/petitioner may be summed up thus:


  1.

The petitioner has filed a suit for eviction and damages

against the opposite parties before the Learned Civil Judge

(Senior Division) 3rd Court at Alipore and the same has been

registered as ejectment suit No. 26 of 2021.

2. The ground for ejectment in the suit is that the father of the

opposite parties died on 25-03-2010, leaving behind his wife

and the opposite parties. The opposite parties therefore

became the joint tenants in respect of the suit property as

the mother of the opposite parties relinquished her right of

tenancy. The mother of the petitioner also died and the

petitioner become the sole owner of the suit property.

3. According to the petitioners the right of tenancy of the

opposite parties subsisted for a period of 5 years from death

of their father and as such they have become trespassers in

respect of the suit property.

4. The petitioners requested the opposite parties to vacate the

suit property but the opposite parties did not do the same.

Hence the suit.

5. In the said suit the opposite parties filed an application

under Section 7(2) of the West Bengal Premises Tenancy Act

1997 and the petitioner filed objection thereto. In the said

application the opposite parties stated that the opposite

parties are the tenants under the petitioner in respect of the

suit property at the rate of Rs. 600/- per month. It was

further contended that the opposite parties paid the rent

up-to-October 2019, and the petitioner issued rent receipts

and after that the petitioner refused to accept the rent.

6. The petitioner filed an application challenging the

maintainability of the petition filed by the opposite parties

under Section 7(2) and 7(1) of the West Bengal Premises

Tenancy Act 1997, on the ground that since the opposite

parties are trespassers in respect of the suit property, the

provisions of West Bengal Premises Tenancy Act 1997 would

not be applicable in the instant suit. The opposite parties

filed objection to the said petition.

7. The Learned Court below by Order dated 18/06/2022 was

pleased to observe and direct as follows:

'On perusal of the materials on record it appears to me that

the plaintiff filed this suit claiming the defendant the statutory

trespasser under Section 2(g) of WBPT Act and the defendant are

claiming them statutory tenant under the plaintiff on the basis of

agreement dated 21-01-2012. Defendant already filed the written

statement in this case. So the matter in issue is closely related

with the main issue 'whether the defendant is a tenant under the

plaintiff or trespasser in respect of the suit premises? This issue

is framed as a preliminary issue and will be considered by taking

evidence. The present petition of the plaintiff and the petition

under Section 7(1) and 7(2) of WBPT Act will be considered with

the above issue.

To 19.07.2022 for evidence in respect of preliminary issue.'

The petitioner being aggrieved by the order dated 18-06-2022

passed by the Learned Court below has come up with the instant

application.

It is contended by the petitioner/plaintiff that the Learned

Trial Court erred in law by not considering that the suit is a suit

for eviction of trespassers and the provisions of West Bengal

Premises Tenancy Act 1997 do not apply. It is further contended

that the Learned Trial Court erred in law by not considering that

the opposite parties have filed the application under Section 7(2)

of the West Bengal Premises Tenancy Act 1997 in a mala fide

manner.

Heard learned Advocate for the petitioner and Learned

Advocate for the opposite parties. Perused the petition filed and

materials on record.

Learned advocate for the petitioner submits that the opposite

parties are not tenants as per Section 2(g) of the West Bengal

Premises Tenancy Act 1997 but are trespassers accordingly suit

for eviction is not filed under West Bengal Premises Tenancy Act

1997 Learned Advocate further submits that unless suit is filed

under Section 6(1) of the West Bengal Premises Tenancy Act

1997 application for deposit of rent under Section 7(1) and 7(2) of

the West Bengal Premises Tenancy Act 1997 is not maintainable.

Learned Advocate for the opposite parties submits that as the

opposite parties claim themselves as tenants of suit property they

require protection under Section 7 of the West Bengal Premises

Tenancy Act 1997.

The following decisions are relied upon by Learned Advocate

for the petitioner.

Dipali Halder and ors. VS Chandan Das and ors.

Reported in 2018(1) CHN. (CAL) 545.

C.O. 2374 of 2016. (Apurbo Ghosh Roy VS Uttam).

C.O. 436 of 2020 (Jagat Singh Dugar V Lalit Kumar Agarwal

and ors.

Upon hearing the learned Advocates and upon considering

the facts of the case this Court is of the view that as the ground

of challenge in the instant application is the maintainability of

the application under Section 7(1) and 7(2) of the West Bengal

Premises Tenancy Act 1997 it is necessary to consider the

relevant provisions contained in the said Sub-Sections of the

statute.

Section 7(1) of the West Bengal Premises Tenancy Act 1997

provides as follows:

a) On a suit being instituted by the landlord for eviction on

any of the grounds referred to in Section 6, the tenant shall

subject to the provisions of sub-Section (2) of this section

pay to the landlord or deposit with [the Civil Judge] all

arrears of rent calculated at the rate at which it was last

paid and up to the end of the month previous to that in

which the payment is made together with interest at the

rate of ten per cent per annum.

b) Such payment or deposit shall be made within one month of

the service of summons on the tenant or, where he appears

in the suit without the summons being served upon him,

within one month of his appearance.

c) The tenant shall thereafter continue to pay to the Landlord

or deposit with [the Civil Judge] month by month by the 15th

of each succeeding month a sum equivalent to the rent at

that rate.

As per sub-Section 2 of Section 7 of the West Bengal

Premises Tenancy Act if in any suit referred to in sub-Section (1)

there is any dispute as to the amount of the rent payable by the

tenant the tenant shall within the time specified in that sub-

Section deposit with [the Civil Judge] the amount admitted by

him to be due from him together with an application 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. On receipt of the application

[the Civil Judge] shall having regard to the rate at which rent was

last paid and the period for which default may have been made

by the tenant make as soon as possible within a period not

exceeding one year an order specifying the amount if any due

from the tenant and thereupon the tenant shall within one month

of the date of such order pay to the landlord the amount so

specified in the order.

Provided that having regard to the circumstances of the

case an extension of time may be granted by [the Civil Judge]

only once and the period of such extension shall not exceed two

months.

Thus upon reading the provisions contained in Section 7(1)

and 7(2) of the West Bengal Premises Tenancy Act 1997 it will be

clear that the said sub-Sections provides the liability of tenant in

depositing rent to get the benefit of protection against eviction.

However, the provision of Section 7 of the West Bengal

Premises Tenancy Act 1997 provides that the condition laid down

in the said section is to be complied in the event a suit for

eviction is instituted by a landlord against a tenant on any of the

grounds referred to in Section 6. Thus when a suit is not

instituted under Section 6 of the West Bengal Premises Tenancy

Act 1997 by a landlord against a tenant the compliance of

condition under Section 7 of the West Bengal Premises Tenancy

Act does not and cannot arise. It will also not be open to the

plaintiff to allege that the defendant has not complied the

condition as provided under Section 7 of the West Bengal

Premises Tenancy Act 1997, where suit is not instituted under

Section 6 of the West Bengal Premises Tenancy Act 1997.

In the instant suit the plaintiff has alleged that the

defendants/opposite parties are the trespassers in the suit

property, on the other hand the defendants/opposite parties have

claimed themselves to be tenants of the suit property. Now in the

event the defendants can establish themselves as tenants of the

suit property the suit will become 'not maintainable' and will fail

as because a tenant under West Bengal Premises Tenancy Act

1997 can be evicted only on the grounds as provided under

Section 6 of the said statute. In such a case the maintainability of

the suit should be decided first in accordance with law. In the

event suit becomes non-maintainable it shall fail. On the other

hand if the suit is maintainable it has to be proceeded and

decided in accordance with law.

In the case of Ramkrishna Poddar and ors VS Sudhanshu

Saha being CO 915, 917 and 918 of 2019, a Learned Single

Bench of this Court observed as follows:

'13. Learned Advocate for the plaintiff referring decision

reported in MANU/WB/1047/2017 : 2018 (1) CHN (Cal) 545

delivered in the case of Dipali Halder VS. Chandan Das

submitted that Section 7 of the West Bengal Premises Tenancy

Act, 1997 would be attracted only, when the grounds available

under Section 6 of the Act were invoked for eviction of tenant.

The opposite party/defendant had nothing to controvert the

settled proposition of law, as already referred by the petitioner

that the protections available under Section 7(1) and 7(2) of West

Bengal Premises Tenancy Act, 1997 would be attracted only in

cases where grounds shown in Section 6 of the Act were made

use for eviction of tenant under the Act.

14. Admittedly, no notice was issued before the institution

of the suit on the ground that the suit was not framed on the

basis of cause of action arose following service of notice under

Section 6(4) West Bengal Premises Tenancy Act. The proposition

of law is that notice under Section 6(4) of the Act will be served

upon the defendant/tenant mandatorily before filing of such suit

after expiry of the notice period provided under Section 6(4) of the

Act, if the tenant does not vacate the tenanted premises after

expiry of the notice period. But here in this case neither the suit

was founded, nor framed on the basis of cause of action following

service of notice under Section 6(4) of the West Bengal Premises

Tenancy Act, 1997. The instant suit not being against the tenant

within the meaning of tenant as defined under West Bengal

Premises Tenancy Act, 1997, the defendant/O.P.is not entitled to

get any protection under Sections 7(1) and 7(2) of the West

Bengal Premises Tenancy Act. The present suit essentially being

a suit for eviction of a trespasser, which is very much

maintainable in the manner in which it was framed or rather

founded where there is no scope of application under Section 7(1)

and 7(2) of the West Bengal Premises Tenancy Act.'

Upon considering the nature of the suit and the judicial

decisions relied it will appear that the Learned Trial Judge erred

in keeping the application under Section 7(1) and 7(2) of West

Bengal Premises Tenancy Act 1997 for consideration with the

preliminary issue when the said applications are not

maintainable. Thus the order passed by the Learned Civil Judge

(Senior Division) 3rd Court at Alipore in Ejectment Suit no-26 of

2021 should be modified. Hence the applications under Section

7(1) and 7(2) of the West Bengal Premises Tenancy Act 1997 filed

in Ejectment Suit No-26 of 2021 before Learned Civil Judge

Senior Division 3rd Court at Alipore stands dismissed as not

maintainable. However, the order of Learned Trial Judge in

framing the issue as to whether the defendant is a tenant under

the plaintiff or trespasser in respect of the suit premises is

affirmed. The said issue shall be decided in accordance with law.

Learned Trial Judge is thus directed to consider the

preliminary issue in Ejectment Suit No-26 of 2021 in accordance

with the above mentioned observation.

This Revisional Application stands disposed.

Learned Trial Court is requested to expedite the hearing of

the suit.

Biswaroop Chowdhury,J