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Purnendu Kishore Chakravorty Vs. Rasomay Ganguly - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberC.O. No. 437 of 1980
Judge
Reported inAIR1980Cal152
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 13 and 29B; ;West Bengal Premises Tenancy (Amendment) Act, 1976; ;West Bengal Premises Tenancy (Amendment) Act, 1978; ;Code of Civil Procedure (CPC) , 1908 - Order 23, Rule 1(3)
AppellantPurnendu Kishore Chakravorty
RespondentRasomay Ganguly
Appellant AdvocateBidyut Kr. Banerjee, Adv.
Respondent AdvocateSuchit Kr. Banerjee, Adv.
DispositionPetition dismissed
Cases ReferredManak Lal v. Dr. Prem Chand Singhvi
Excerpt:
- .....passed in title suit no. 595 of 1978 by the munsif, second court, alipore. by the said order the learned munsif allowed the prayer made by the opposite party under order 23, rule 1, sub-rule (3) of the code of civil procedure for withdrawal of the suit with liberty to file a fresh suit upon the same cause of action.2. in this matter a caveat was lodged on behalf of the opposite party in this court and mr. suchit kumar banerjee, learned advocate, appears on behalf of the opposite party. the application was assigned to me by the hon'ble the chief justice. after hearing mr. bidyut kumar banerjee, learned advocate for the petitioner, i heard mr. suchit kumar banerjee, learned advocate for the opposite party.3. title suit no. 595 of 1978 of the second court of the munsif, alipore, in which.....
Judgment:
ORDER

A.K. Janah, J.

1. This is an application under Section 115 of the Code of Civil Procedure for revision of an order dated November 29, 1979 passed in Title Suit No. 595 of 1978 by the Munsif, Second Court, Alipore. By the said order the learned Munsif allowed the prayer made by the opposite party under Order 23, Rule 1, Sub-rule (3) of the Code of Civil Procedure for withdrawal of the suit with liberty to file a fresh suit upon the same cause of action.

2. In this matter a caveat was lodged on behalf of the opposite party in this Court and Mr. Suchit Kumar Banerjee, learned Advocate, appears on behalf of the opposite party. The application was assigned to me by the Hon'ble the Chief Justice. After hearing Mr. Bidyut Kumar Banerjee, learned Advocate for the petitioner, I heard Mr. Suchit Kumar Banerjee, learned Advocate for the opposite party.

3. Title Suit No. 595 of 1978 of the second court of the Munsif, Alipore, in which the order has been passed was filed by the opposite party against the petitioner for recovery of possession of a certain premises (hereinafter referred to as the disputed premises) after evicting the petitioner therefrom. The case of the opposite party is that the petitioner is a tenant in respect of the disputed premises under the opposite party; that the opposite party is a retired army officer and he is a qualified surgeon. After his retirement the opposite party is living in a rented house at Poona and he has been served with a notice to quit by his landlord. The opposite party wants to shift to Calcutta with his family and start the profession of a medical practitioner and therefore he requires the disputed premises for his own use and occupation. On these grounds the suit was filed for eviction of the petitioner from the disputed premises. The suit was filed on December 22, 1978. In 1976 Chapter VIA of the West Bengal Premises Tenancy Act was introduced by West Bengal Act LII of 1976 making certain provisions for disposal of applications for eviction on the ground of bona fide requirement by a certain class of landlords. Section 28B is one of such provisions in Chapter VIA. The relevant portion of Section 29B reads as follows:

'Section 29B (1). No Civil Court shall entertain any application by a landlord being a Government employee, and who being in occupation of any residential premises allotted to him by his employer, is required by, or in pursuance of, an order made by such employer to vacate such residential accommodation, or in default, to incur certain obligations on the ground that he owns a residential accommodation either in his own name or in the name of his wife or dependent child at or near the place where he is posted for the time being, for the recovery of possession of any premises on the ground specified in Clause (ff) of Sub-section (1) of Section 13 but such application shall be dealt with by the Controller in accordance with the procedure specified in this section'.

A further amendment to Section 29B was introduced by West Bengal Act XXXVI of 1978. After the said amendment, Section 29B now stands as follows:

'Section 29B (1): No Civil Court shall entertain any application by a landlord being a Government employee......... on the ground that he owns a residential accommodation either in his own name or in the name of his wife or dependent child at or near the place where he is posted for the time being, or by a landlord who is a retired member of the naval, militay or air force of the Union of India or who will retire within a period of less than one year as such member for the recovery of possession of any premises on the ground specified in Clause (ff) of Sub-section (1) of Section 13 but such application shall be dealt with by the Controller in accordance with the procedure specified in this section.'

The assent of the President to this Act was first published in the Calcutta Gazette (Extraordinary) on October 30, 1978. Thereafter the opposite party filed an application under Order 23, Rule 1, Sub-rule (3) of the Code of Civil Procedure for withdrawing the suit so that he could file an application before the Rent Controller under Section 29B of the West Bengal Premises Tenancy Act for recovery of possession of the disputed premises. The said application was opposed by the petitioner on several grounds. The learned Munsif allowed the said application by order No. 17 dated November 29, 1979. Against this order the present application has been filed by the petitioner.

4. Mr. Bidyut Kumar Banerjee, learned Advocate appearing in support of this petition, contended in the first place, that the learned Munsif having found that the court had no jurisdiction to try the suit in view of the provisions of Section 29B of the West Bengal Premises Tenancy Act, he had no jurisdiction to pass the impugned order. He has contended that if the court has no jurisdiction to entertain the suit, the court has also no power to pass any order in that suit. In the second place Mr. Banerjee has contended that the conditions mentioned in Section 29B of the Act for enabling the landlord to avail of the special procedure prescribed by that section not having been fulfilled in the present case, the trial court ought to have held that the opposite party was not entitled to proceed under Section 29B of the Act. Mr. Banerjee has contended that there is no material before the court in the present case that the opposite party is in occupation of any premises allotted to him by his employer or that he is required by such employer to vacate his residential accommodation and that being so, Section 29B was not applicable to the opposite party. The last contention of Mr. Banerjee is that Act XXXVI of 1978 is not retrospective in operation and the opposite party having retired in 1975 was not entitled to have the benefit of the amending Act.

5. In so far as the first contention raised by Mr. Banerjee is concerned, it is sufficient to say that the trial court did not come to any conclusion that it had no jurisdiction to try the suit. At one place of his order the learned Munsif has referred to this aspect of the matter. But that is in connection with the submissions which were made before him on behalf of the opposite party where the learned Munsif says that it was contended on behalf of the opposite party in support of his prayer for withdrawal of the suit that the trial court had no jurisdiction to try the suit as the opposite party was a retired military officer. But there is no finding by the learned Munsif that the suit was not maintainable before that court or that the trial court had no jurisdiction to try the suit. With regard to the second contention raised by Mr. Banerjee it is to be pointed out that after the amendment of Section 29B brought about by Act XXXVI of 1978, the conditions mentioned in Section 29B to enable a Government employee to avail of the special procedure prescribed by that section are no longer necessary at least for the opposite party who is a retired military officer. With regard to the third contention raised on behalf of the petitioner by Mr. Banerjee it is to be pointed out that even if Act XXXVI of 1978 is not retrospective in its operation, the petitioner can very well avail of the provisions of the said Act as it stands now. After the amendment the said section specifically mentions that an application may be made before the Rent Controller for eviction of a tenant by a landlord who is a retired member of naval, military or air force of the Union of India. The opposite party is a retired military officer and therefore he is entitled to make an application before the Rent Controller under Section 29B for recovery of possession of the disputed premises. The last submission of Mr. Banerjee on behalf of the petitioner has been that the petitioner having filed the suit on December 22, 1978, he must be deemed to have waived his right to file an application before the Rent Controller. In support of this contention Mr. Banerjee has relied upon the decision in Manak Lal v. Dr. Prem Chand Singhvi reported in : [1957]1SCR575 . The facts of that case were however quite different. It is well-established that in order to constitute waiver there must be a voluntary abandonment by a party of a right which is known to him. In the present case there is no material before the court to show that the opposite party was aware of this provision of law at any time before the institution of the suit. On the other hand, the case of the opposite party is that he was advised by his lawyer to file an application before the Rent Controller under Section 29B of the Act after the institution of the suit The plea of waiver raised by Mr. Banerjee cannot be upheld on the materials on record. There is therefore no reason to interfere with the order passed by the learned Munsif.

6. This application is therefore rejected. But in the circumstances of the case, I make no order as to costs. Let this order be communicated to the court below as early as possible.


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