Skip to content


Loken Bose Vs. Sm. Ashima Dey and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberC.R. No. 2993 of 1976
Judge
Reported inAIR1977Cal318,81CWN948
ActsWest Bengal Premises Tenancy Act, 1956 - Section 34; ;Code of Civil Procedure (CPC) - Order39, Rules 1 and 2
AppellantLoken Bose
RespondentSm. Ashima Dey and anr.
Appellant AdvocateJ.N. Bakshi, Adv.
Respondent AdvocateR.N. Mitra, Adv.
Excerpt:
- .....as provided for in section 34 of the act 2. under section 34, the controller has beenauthorised to grant relief to the tenant for the making of repairs and taking of measures for the maintenance of essentialservices. there is nothing in section 34 or in any other provisions of the west bengal premises tenancy act, 1956 which bars either expressly or by necessary implications the jurisdiction of the civil court to grant the same or similar relief to a tenant who is a defendant in a suit for ejectment. it is true that the remedy under section 34 is a speedy remedy which a tenant can avail of for the restoration of essential services to and repairs of the premises. but, if the tenant has an additional remedy under any other law, i do not think that he should be deprived of that remedy.3. it.....
Judgment:
ORDER

M.M. Dutt, J.

1. This Rule is at the instance of the tenant-defendant in a suit for ejectment and it is directed against an order of the learned Munsif dismissing his application under Order 39, Rules 1 and 2 of the Civil P. C. In the said application, the defendant prayed for a temporary mandatory injunction, directing the plaintiff landlord to restore water supply to the first floor of premises No. 4/1. Russa Road, South First Lane, Jadabpur, Calcutta. The learned Munsif dismissed the said application of the defendant on the ground that in view of Section 34 of the West Bengal Premises Tenancy Act, 1956, the application was not maintainable. In other words, the learned Munsif took the view that in a suit for ejectment the court will have no jurisdiction to entertain an application for the grant of relief in respect of matters as provided for in Section 34 of the Act

2. Under Section 34, the Controller has beenauthorised to grant relief to the tenant for the making of repairs and taking of measures for the maintenance of essentialservices. There is nothing in Section 34 or in any other provisions of the West Bengal Premises Tenancy Act, 1956 which bars either expressly or by necessary implications the jurisdiction of the Civil Court to grant the same or similar relief to a tenant who is a defendant in a suit for ejectment. It is true that the remedy under Section 34 is a speedy remedy which a tenant can avail of for the restoration of essential services to and repairs of the premises. But, if the tenant has an additional remedy under any other law, I do not think that he should be deprived of that remedy.

3. It is, however, contended on behalf of the plaintiff opposite party that as a special remedy has been provided for in the statute for the grant of relief to the tenant as mentioned in Section 34, it should be presumed that by necessary implication the legislature has barred the jurisdiction of the Civil Court to grant the same relief to the tenant in a suit for ejectment. I am unable to accept this contention. The bar of jurisdiction of a Civil Court should not be readily inferred. It is not the intention of the legislature to drive a tenant to a separate proceeding under Section 34 to avail of the relief as provided for therein. If, in spite of the fact that a suit for eviction is pending, the tenant has to approach the Controller under Section 34 for the restoration of essential services to the premises, it will mean multiplicity of proceedings. Moreover, a temporary injunction under Order 39, Rules 1 and 2 of the Civil P. C. is granted in aid of the legal right of the party who seeks such an injunction. The duration of such injunction will be for the period during which the suit will continue. It does not at all stand to reason that by enacting Section 34, the legislature has impliedly curtailed the power of the Court under Order 39, Rules 1 and 2 of the Civil P C. in respect of the matters provided for in Section 34. In a suit for eviction, the power of the court to grant temporary mandatory injunction for the restoration of essential services, in my view, has not been fettered or restricted by the provision of Section 34 of the Act. In these circumstances, I hold that the learned Munsif was not right in dismissing the application of the defendant petitioner on the ground that it was not maintainable. The learned Munsif has, therefore, failed to exercise his jurisdiction vested in him by law by dismissing the application for temporary injunction. The order of the learned Munsif is accordingly set aside and he is directed todispose of the application on merits in accordance with law. The Rule is made absolute, but there will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //