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Baidyanath Kundu Vs. Sm. Jyotshna Rani Karmakar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberC.R. No. 938 of 1971
Judge
Reported inAIR1972Cal443,76CWN720
ActsWest Bengal Premises Tenancy Act, 1956 - Section 17(2) and 17(3)
AppellantBaidyanath Kundu
RespondentSm. Jyotshna Rani Karmakar
Appellant AdvocateM.N. Ghose and ;Gita Lalwani, Advs.
Respondent AdvocatePurna Ch. Basu, Adv.
Cases ReferredTirthapati Sen v. Parcsh Nath Sen
Excerpt:
- .....default in payment of rent and also on the ground of reasonable requirement. it was alleged by the opposite party that the petitioner failed to pay rent since september 1966. further, it was alleged by the opposite party that the deposit of rent made by the petitioner with the rent controller since november, 1967 and also the deposit made by the petitioner in court after entering appearance in the suit, were all invalid deposits. the petitioner did not make any application under section 17 (2) of the act.3. the defence of the petitioner was, that he paid rent to the husband of the opposite party upto october 1967, but no receipt was granted by him. since november 1967, the petitioner had been depositing rent with the rent controller as the husband of the opposite party refused to accept.....
Judgment:
ORDER

Murari Mohan Dutt, J.

1. This Rule is directed against order No. 56 dated February 2, 1971, passed by the learned Munsif, Second Court, Midnapur, in a proceeding under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956. By the said order the learned Munsif struck out the defence of the petitioner against delivery of possession.

2. The opposite party filed the suit for ejectment against the petitioner on the ground of default in payment of rent and also on the ground of reasonable requirement. It was alleged by the opposite party that the petitioner failed to pay rent since September 1966. Further, it was alleged by the opposite party that the deposit of rent made by the petitioner with the Rent Controller since November, 1967 and also the deposit made by the petitioner in Court after entering appearance in the suit, were all invalid deposits. The petitioner did not make any application under Section 17 (2) of the Act.

3. The defence of the petitioner was, that he paid rent to the husband of the opposite party upto October 1967, but no receipt was granted by him. Since November 1967, the petitioner had been depositing rent with the Rent Controller as the husband of the opposite party refused to accept rent remitted by him by postal money-order. The petitioner denied that he was a defaulter as alleged by the opposite party. The further defence of the petitioner was that there was no relationship of landlord and tenant between the opposite party and the petitioner. The case that was made out by the petitioner in his written statement was that the plaintiffs husband Bhupendra Nath Karmakar executed an agreement of tenancy describing him as the landlord of the suit premises and collected rent from the petitioner. The petitioner denied that the deposits made by him with the Rent Controller were invalid deposits,

4. The opposite party made an application under Section 17 (3) praying for striking out the defence of the petitioner against delivery of possession. The petitioner opposed the said application by filing a petition of objection thereto. In his Section of objection, the petitioner chal-lenged the ownership of the opposite party in respect of the suit premises and denied the relationship of landlord and tenant between the opposite party and the petitioner. The petitioner also denied that he was a defaulter in payment of rent as alleged by the opposite party.

5. At the hearing of the application under Section 17 (3), the opposite party examined her husband Bhupendra Nath Karmakar. Bhupendra Nath Karmakar in his evidence admitted that the written agreement was signed by him on September 22, 1963. That agreement is an agreement of tenancy and Bhupendra Nath Karmakar was described as the landlord. The witness further stated that there was no other agreement except the said agreement which he signed.

6. The learned Munsif came to the findings that the petitioner was a defaulter in payment of rent and that the deposits made by the petitioner with the Rent Controller were invalid deposits. Upon these findings, the learned Munsif struck out the defence of the petitioner against delivery of possession. The learned Munsif was of the view that the plea of absence of relationship of landlord and tenant between the parties could not be agitated by the petitioner in the proceeding under Section 17 (3) inasmuch as the petitioner did not raise that defence by an application under Section 17 (2) of the Act

7. The only point that was argued by Mr. Ghosh, the learned Advocate for the petitioner is, that the learned Munsif should have considered the defence of the petitioner that there was no relationship of landlord and tenant between the opposite party and the petitioner. It has been already stated that the petitioner has specifically taken that defence in his written statement. In the petition of objection to the application under Section 17 (3), the petitioner has also taken that defence by way of objection to the plaintiff's application under Section 17 (3), Mr. Ghosh drew my attention to Order No. 39, dated June 19, 1970, passed by the learned Munsif. By that order the learned Munsif overruled the contention made on behalf of the petitioner that before hearing the application under Section 17 (3), the learned Munsif should dispose of the dispute as to the existence of relationship of landlord and tenant between the opposite party and the petitioner. The sole reason given by the learned Munsif for overruling the said contention was that the said dispute should have been raised by an application under Section 17 (2) within the prescribed period.

8. Section 17 uses the expression 'any dispute as to the amount of rent'. In a Bench decision in Biswanarh Roy v. Annapurna Roy, (1961) 65 Cal WN 149, P. N. Mookerjee, J. held that any kind of dispute which affects the amount of rent payable by the tenant including a dispute as to the existence of relationship of landlord and tenant between the parties, will be a dispute under or within the contemplation of Section 17 (2). It has also been held in that decision that the dispute as to the existence of relationship of landlord and tenant between the parties does affect the question of rent, payable by a tenant to a particular landlord, and in that view of the matter, in a case, where such a dispute has been raised, unless and until the Court has decided and determined that dispute and made an appropriate order under Section 17 (2), no question of striking out of the defence against delivery of possession under Section 17 (3) can arise, provided, of course, that the said dispute is a bona fide one, as, otherwise the said Sub-section (2) would not be attracted.

9. Strong reliance was placed on this decision by Mr. Basu, the learned Advocate for the opposite party. It was contended by Mr. Basu that in view of the said decision, the tenant has to raise the dispute as to the existence of relationship of landlord and tenant by an application under Section 17 (2) and not otherwise. I am unable to accept this contention of Mr. Basu. All that has been laid down in that decision is that before striking out the defence against delivery of possession the Court should dispose of the dispute as to the existence of relationship of landlord and tenant between the parties. It may be that the dispute can be raised by, or in connection with, an application under Section 17 (2) of the Act. But it cannot be said that it has been laid down in that decision that the dispute has to he raised only by an application under Section 17 (2).

10. In a later Bench decision in Aloka Ghosh v. Inspector-General of Police, West Bengal, (1962) 66 Cal WN 302, P. N. Mookerjee, J. expressed the view that the question as to the existence of relationship of landlord and tenant between the parties may be either decided at the stage of the Section 17 (3) application, only prima facie and for purposes of the proceeding under Section 17 (3), leaving it open for a final decision at the time of hearing of the suit, or the Court may take up the issue upon that question along with the application under Section 17 (3) and decide the two together fully so that the decision on that issue will be final for purposes of the suit also.

11. In the instant case, the petitioner has denied the relationship of landlord and tenant and, as aforesaid, he has raised the defence both in the written statement as also in his petition of objection to the application under Section 17 (3). From the pleadings of the parties an issue arises as to the existence or relationship of landlord and tenant between the parties. The implied effect of this denial of relationship is, that according to the petitioner the provision of the Act does not apply to the facts and circumstances of the case and that the Court has no jurisdiction to pass a decree for eviction against the petitioner. In order to proceed further in the matter the Court must first of all decide whether there is relationship of landlord and tenant between the parties. In case the Court finds that there is no such relationship between the parties, the Court will not have any jurisdiction to pass a decree for ejectment. Therefore, in my opinion, it is incumbent upon the Court to first of all decide the issue as to the existence of relationship of landlord and tenant. The Court cannot either strike out the defence against delivery of possession or decree the suit without deciding the said issue as to the existence of relationship of landlord and tenant.

12. The view which I take finds support from a Bench decision of this Court in Tirthapati Sen v. Parcsh Nath Sen, ILR (1967) 1 Cal 449. In that decision it has been held by A. C. Sen, J. that there is nothing in the Act which prevents the Court from first deciding the issue in the suit as to whether the defendant is the tenant of the plaintiff and thereafter, deciding the plaintiff's application under Section 17 (3) or from deciding both together; that in either case the Court cannot strike out the defence against delivery of possession on the ground that the defendant did not apply under Section 17 (2) within the prescribed time, even if the said issue is decided in favour of the tenant, and that moreover, the time prescribed for raising the dispute by the defendant under Section 17 (2) has no application to the plea taken by the defendant that he is not the tenant by way of objection to an application by the plaintiff under Section 17 (3). Most respectfully I agree with the aforesaid Bench decision. The learned Munsif was not justified in not considering the contention of the petitioner regarding the dispute as to the existence of relationship of landlord and tenant even at the time of hearing of the application under Section 17 (3). Before passing an order under Section 17 (3) the Court has to determine whether there is any such relationship particularly in a case where such relationship has been denied. In my opinion, the learned Munsif acted illegally and with material irregularity in the exercise of his jurisdiction in not considering the contention of the petitioner and deciding the dispute before striking out the defence of the petitioner against delivery of possession.

13. In the result, the order of the learned Munsif is set aside. The case is sent back to the learned Munsif and be is directed to first of all decide the issue as to the existence of relationship of landlord and tenant between the opposite party and the petitioner and thereafter to dispose of the application of the opposite party under Section 17 (3). The Rule is made absolute. There will be no order as to costs in the Rule.


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