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Sibapada Roy Chowdhury Vs. Sudhangsu Kumar Sen - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberC.R. No. 981 of 1979
Judge
Reported inAIR1980Cal90
ActsWest Bengal Premises Tenancy Act, 1956 - Section 13(1) and 13(4); ;Civil Prodecure Code , 1908 - Section 47; ;West Bengal Premises Tenancy (Amendment) Act, 1969
AppellantSibapada Roy Chowdhury
RespondentSudhangsu Kumar Sen
Appellant AdvocateS.P. Roychoudhury and ;N.K. Ghosal, Advs.
Respondent AdvocateS.N. Mukherjee and ;S.K. Bansi, Advs. for Opposite Party No. 1
Cases Referred and Bahadur Singh v. Muni Subrat Dass
Excerpt:
- .....appeal filed from the decision of the court of appeal below and a rule was issued calling upon the landlord decree-holder to show cause as to why further proceedings in the title execution case no. 42 of 1964 arising out of the said decree should not be stayed. the said rule was issued on condition that the tenant-petitioner would vacate 3 rooms together with a kitchen and a bath room within a period of one month from the date of the rule.3. the case of the tenant-petitioner is that in obedience to the said order of this court delivery of possession of a portion of the suit premises was made. the truth of this fact was denied by the landlord-decree holder. while making the said rule absolute this court directed that as the possession of about half the tenancy was delivered in pursuance.....
Judgment:
ORDER

D.C. Chakravorti, J.

1. This Rule is directed against order No. 97 dated 27-1-79 made by the learned Munsif, 6th Court at Alipore on an application made by the tenant-judgment-debtor under Section 47 of the Code of Civil Procedure. By the said order the learned Munsif dismissed the Miscellaneous Case arising out of the said application under Section 47 of the Code of Civil Procedure.

2. The facts leading to the present application, stated succinctly, are as follows :--

Sometime in 1960, the decree-holder opposite Party No. 1 brought a suit for eviction against one Nalini Bhushan Roy Chowdhury, the predecessor-in-interest and the father of the petitioner and the opposite parties Nos. 2 to 4 on the grounds that said tenant defaulted in payment of rent since September 1958, that the plaintiff required the suit premises for his own use and occupation and for purposes of building and re-building and that the tenant sublet a portion without the knowledge and consent of the landlord. In February 1963, the suit was decreed on the ground of reasonable requirement of the suit premises of the plaintiff for his own use and occupation. The appeal preferred from the decisions of the trial Court was dismissed by the learned Subordinate Judge 7th Court at Alipore. There was a second appeal filed from the decision of the Court of Appeal below and a Rule was issued calling upon the landlord decree-holder to show cause as to why further proceedings in the Title Execution Case No. 42 of 1964 arising out of the said decree should not be stayed. The said Rule was issued on condition that the tenant-petitioner would vacate 3 rooms together with a kitchen and a bath room within a period of one month from the date of the Rule.

3. The case of the tenant-petitioner is that in obedience to the said order of this Court delivery of possession of a portion of the suit premises was made. The truth of this fact was denied by the landlord-decree holder. While making the said Rule absolute this Court directed that as the possession of about half the tenancy was delivered in pursuance of the order of this Court the tenant was to deposit Rs. 35/- instead of Rs. 70 p.m. and that he should go on depositing the rent every month at the rate of Rs. 35/-per month as aforesaid month by month in the trial Court within 15th of each following month and that in default the Rule would stand discharged. The original defendant-appellant died intestate on January 13, 1973 leaving behind the petitioner and opposite parties Nos. 2 to 4 as his heirs and legal representatives. On January 25, 1971, the aforesaid second appeal was dismissed for default. Sometime in 1973, the present petitioner filed two applications -- one for restoration of the said second appeal and the other for substitution -- and the Rules which were issued on the basis of those two applications were ultimately discharged.

4. In the said application under Section 47 of the Code of Civil Procedure, the case that was sought to be made out by the petitioner was as follows:

The tenant in pursuance of the order of the Hon'ble High Court delivered possession of the first floor of the suit premises to the authorised agent of the plaintiff and a fresh tenancy at a rental of Rs. 50/- per month was created on October 10, 1964 in respect of the rest of the premises. The judgment-debtor further paid a sum of Rs. 1000/- as ad-vance to the decree-holder and permitted him to construct a privy in the ground floor and as the decree was already satisfied by delivery of possession of the first floor of the suit premises in pursuance of the order of this Court, the Execution Case was not maintainable.

5. The decree-holder opposite party denied the material averments made in the application under Section 47 of the Code of Civil Procedure. His case was that he did not authorise anyone to take delivery of possession on his behalf of the first floor and that the possession of the first floor was not delivered to his agent. He further denied that in pursuance of any agreement any fresh tenancy in respect of the ground floor at the alleged rental of Rs. 50/- was created. He also denied that the alleged sum of Rs. 1000/- was paid to him.

6. It may also be noted that two Letters Patent Appeals which were preferred from the decision of this Court en the application for restoration ard the application for substitution referred to above were dismissed by this Court. In the circumstances, the decree-holder opposite party asserted that the application under Section 47 of the Code of Civil Procedure was made with a view to harassing the decree-holder and ought to be rejected.

7. The learned Munsif who disposed of the said application under Section 47 disbelieved the story of creation of a new tenancy as also the contention of the petitioner that the possession of the first floor of the suit premises was delivered in pursuance of the order of this Court referred to above. In this view of the matter the learned Munsif dismissed the Miscellaneous Case arising out of the said application under Section 47 of the Code of Civil Procedure.

8. In the present Rule the decision of the learned Munsif on the said application under Section 47 of the Code of Civil Procedure was challenged.

9. When the present Rule was taken up for hearing an application was filed praying for the amendment of the application under Section 47 of the Code of Civil Procedure. The application cannot be considered and ought to be dismissed outright as the decree-holder opposite party No. 2 was not given earlier notice of such application. A copy of that application was served at the time when the application was filed and that was when the present Rule was taken up for hearing. That application is accordingly dismissed.

10. In support of the present Rule Mr. S. P. Roy Chowdhury the learned Advocate, for the petitioner, raises three questions. His first contention is that the matter should go back to the learned Munsif for reconsideration inasmuch as the learned Munsif did not take into consideration important materials on record. Mr. Roy Chowdhury draws my attention to the fact that while making absolute the Rule requiring the judgment-debtor opposite party to show cause why further proceedings in the connected Execution Case should not be stayed, the Court made the following observation:

'The Rule is made absolute with the following directions:

(1) that because possession of about half of the tenancy has been delivered in pursuance of this Court's order dated 11-9-64, the rent which the petitioner is to deposit per month will be Rs. 35/-(Rupees Thirty Five) instead of Rs. 70/-(Rupees Seventy). The petitioner would go on depositing the monthly rent at the rate of Rs. 35/- month by month in the trial Court within the 15th of next following month. In default the Rule will stand discharged.....'

and submits that this order recording the fact that possession of about half of the suit premises was delivered in pursuance of this Court's order was not taken into consideration by the learned Munsif while hearing the Miscellaneous case arising out of the application under Section 47. This omission, according to Mr Roy-chowdhnry, vitally affects the decision of the learned Munsif and the learned Munsif cannot be said to have duly exercised his jurisdiction. In this regard Mr. Roychowdhury places reliance on the following lines appearing in Sambhu Dayal v. Pt. Basudeo Sahai, : AIR1970All525 (FB);

'If a Court omits to consider a material on record having a bearing (in this case the material had a vital bearing) on the question to be decided by it or fails to apply its mind to or to record a finding on a crucial aspect of the case which cannot be ignored in the determination of the controversy before the Court, it certainly acts illegally or at least with material irregularity in the exercise of its jurisdiction.'

11. Having regard to the facts and circumstances of this case, I find no substance in this contention of Mr. Roychowdhury. Firstly, because the said order of this Court recording the fact that the possession of the first floor was delivered has no bearing on the question raised on behalf of the petitioner before the Executing Court to the effect that there was a fresh arrangement between the parties giving rise to a new tenancy. Even if it be accepted that the possession of a part of the premises in question was delivered to the decree-holder or his agent in obedience to an interim order by this Court that in no way proves or has any bearing on the question as to whether there was a new tenancy created by the parties concerned. Further it is the case of the decree-holder that there was no such delivery of possession of the first floor as alleged by the petitioner. It is the further case of the decree-holder that at the time of the hearing of the Rule wherein the said order was made recording delivery of possession of the first floor the decree-holder was not present and the learned lawyer appearing for him did not have the instruction from the landlord decree-holder indicating that there was delivery of possession of the first floor as alleged. Under the circumstances, it cannot but be said that the order of this Court recording delivery of possession was not at all material for the purpose of establishing the alleged case of creation of new tenancy. Accordingly, the proposition laid down in the Allahabad case referred to above has no application to the facts and circumstances of the present case. This contention of Mr. Roy-chowdhury fails and I find no necessity for requiring the Executing Court to reconsider the application under Section 47.

12. The second contention of Mr. Roychowdhury is that because of the contravention of the provisions of subsection (4) of Section 13 of the West Bengal Premises Tenancy Act the decree which was sought to be executed was a nullity. The relevant part of the provisions of Sub-section (4) of Section 13 is as follows:--

'Where the landlord requires the premises on any of the grounds mentioned in Clause (f) or Clause (ff) of Sub-section (1), and the Court is of opinion that such requirement may be substantially satisfied by ejecting the tenant or a subtenant from a part only of the premises and allowing the tenant or the subtenant to continue in occupation of the rest, then, if the tenant or a sub-tenant agrees to such occupation, the Court shall pass a decree accordingly and fix the proportionate rent for the portion remaining in the occupation of the tenant or the sub-tenant'.

13. I find it difficult to agree with Mr. Roychowdhury's contention that it is obligatory on the part of the Court in all cases where the landlord seeks to evict a tenant on the ground mentioned in Clause (f) or (ff) to investigate the question whether the landlord's requirement may be substantially satisfied by ejecting the tenant from a part of the premises. The provisions of Sub-section (4) of Section 13 require the Court to pass a decree for partial eviction only in cases where the Court is of opinion that the requirement of the landlord may be satisfied by ejecting the tenant from a part only of the premises in his occupation. In the present case there is nothing to indicate that the Court which passed the decree was of the opinion that the landlord's requirement would be met if there is a decree for partial eviction of the tenant. Ac-cordingly, this contention of Mr. Roychowdhury also fails.

14. The last contention of Mr. Roy-chowdhuray is that in view of the amendment of Clause (f) of Section 13 (1) by the West Bengal Premises Tenancy (Second Amendment) Act (XXIV of 1969) no order or decree for recovery of possession of any premises shall be made by any court in favour of the landlord against the tenant unless the landlord succeeds in proving that he is not in possession of any reasonably suitable accommodation in terms of Clause (ff) of Section 13 (1) in a case where the ground taken by the landlord is that the premises in question are reasonably required by him for his own occupation, In the circumstances of the present case, Mr. Roychowdhury contends that the Court while passing a decree for eviction was lacking in inherent jurisdiction inasmuch as the landlord did not prove that he was not in possession of any reasonably suitable accommodation as required by said Clause (ff) of Section 13 of the said Act.

15. Mr. Roychowdhury in this regard places reliance on the decisions in B. Banerjee v. Smt. Anita Pan : [1975]2SCR774 , Sunder Dass v. Ram Prakash, : [1977]3SCR60 and Bahadur Singh v. Muni Subrat Dass (1969) 2 SCR 432. In B. Banerjee's case (supra) the Supreme Court took the view that Section 13 of the said Amending Act of 1969 makes the amendments effected in the relevant provisions of the West Bengal Premises Tenancy Act by Sections 4, 7, 8 and 9 of the said amending Act expressly applicable to pending actions. The amendments referred to above shall be effective in respect of suits including appeals pending at the commencement of the said amending Act. It is further held in the said case of B. Banerjee (supra) that although the old Clause (f) is substantially similar to the present clauses (f) and (ff), the latter impose more severe restriction protecting the tenants and much more has to be proved by the landlord now before he could get eviction than when he was called upon to prove under the earlier corresponding provisions of the basic Act. In the present case, admittedly during the pendency of the second appeal in this Court the said amendments were effected in the West Bengal Premises Tenancy Act. Now the question that arises for consideration is whether the Court which passed the decree which is sought to be executed had no inherent jurisdiction to pass the same or whether the Court passing the decree had inherent jurisdiction to pass the same but the decree was illegal on the ground of contravention of any rule of law. In the present case sub-section (1) of Section 13 provides that notwithstanding anything to the contary in any other law no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the ground stated in clauses (a) to (h) of that sub-section. Thus, Section 13 (1) prohibited the Court from passing an order or decree for recovery of possession in favour of the landlord against the tenant unless the Court was satisfied about the existence of any one or more grounds referred in Clauses (a) to (h) of sub-section (1) of Section 13. In other words, it may very well be said that unless the landlord succeeds in proving the existence of any one of the grounds referred to above the Court has no jurisdiction to pass an order or decree for recovery of possession of the suit premises in favour of the landlord against the tenant. In such circumstances, the decree or order, as the case may be, will be a nullity and cannot be enforced in execution. This view finds support from the decision in said Bahadur Singh's case (supra).

16. Generally the Executing Court cannot go behind the decree nor can it question its legality or correctness. To this general rule there is an exception furnished by cases where the decree sought to be executed is a nullity on the ground of want of inherent jurisdiction of the Court passing the decree. If the Court passing the decree lacks in inherent jurisdiction to pass the same, the judgment-debtor may before the Executing Court challenge the executability of the decree. This is the legal position as laid down in the case of said Sunder Dass (supra).

17. Mr. Saktinath Mukherjee appearing on behalf of the opposite party No. 1 contended that in the circumstances of the present case it could not be urged that the Court passing the decree in question was lacking in inherent jurisdiction His contention is that the Court had jurisdiction to pass the decree in question and even though the decree that is passed may not be legal, the Executing Court cannot refuse to execute the decree on the ground that the decree was passed in violation of any law. In view of the clear provisions of sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act, to which I have already referred. I find it difficult to agree with Mr. Mukherjee that if a decree is passed by the Court even though the requirements of Clause (ff) of Section 13 (1) be not proved to the satisfaction of the Court, such decree may at best be illegal and can be challenged in appeal or in second appeal but not before the Executing Court on the ground of its illegality. If a decree is passed by a Court in violation of any rule of law where the Court did have inherent jurisdiction to pass it, such a decree, the executing Court would be bound to execute, for, it is not for the executing Court to see whether the decree was according to law or not. But when a Court passing the decree has no inherent jurisdiction to pass it the decree would be a nullity and the Executing Court is within its powers to take note of the fact that the decree is a nullity and to refuse to execute the same.

18. In the present case, if there be no finding recorded by the Court passing the decree that the landlord was not in possession of any reasonably suitable accommodation, the decree would be bad for want of inherent jurisdiction of the Court.

19. It is significant to note here that the question which was raised by Mr. Roychowdhury before me and which is now being discussed by me was nof raised in the said second appeal, for the second appeal was dismissed for default, Further the question was not even raised before the Court hearing Letters Patent Appeals from the decision of this Court rejecting the application for restoration of the second appeal and the application for substitution. The question was also not raised even before the executing Court. The executing Court did not have therefore any opportunity to go into the question whether the decree was a nullity on the ground now urged before me by Mr. Roychowdhury. Further at the time of the hearing of this Rule, I wanted the parties to produce before me the judgment on the basis of which the decree in question was passed and also the respective pleadings of the parties. The parties failed to produce the judgment and a type-written plain copy of the pleading which was furnished by Mr. Mukherjee also does not indicate that there was any amendment effected in the pleadings after the passing of the said amending Act. Further, on the face of the decree in question it is difficult to say whether the Court passing it was lacking in inherent jurisdiction. In such circumstances, the Executing Court would be justified to go into the original records of the suit in question and to ascertain whether the trial Court did have jurisdiction to pass the decree in question. If the Executing Court on a consideration of the materials before the trial Court is of opinion that the trial Court did record a finding to the effect that the landlord in the present case was not in possession of any reasonably suitable accommodation, the Executing Court cannot refuse to execute the decree. If, on the other hand, the Executing Court finds that there was no such finding recorded by the trial Court or any of the appellate Courts and that without any such finding the decree was passed, the Executing Court would be justified in refusing to execute the decree on the ground that the decree was passed by a Court having no inherent jurisdiction to pass the same.

20. In the circumstances aforesaid, the impugned order is set aside and the case is sent back to the Executing Court which is to ascertain only in the light of the observations aforesaid whether or not the Court passing the decree had inherent jurisdiction to do so. If the Executing Court finds that the decree was passed by a Court having inherent jurisdiction it will proceed to execute the decree. But if it be found that the decree was passed by a Court having no inherent jurisdiction it would refuse to execute the decree as being one passed without jurisdiction.

21. The Rule is accordingly made absolute, the impugned order is set aside and the case is sent back to the Executing Court for a fresh decision in the light of the observations made above. There will be no order as to costs.


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