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ADITI GHOSH (NEE SADHUKHAN) & ANOTHER V/S M/S. O.K. INDUSTRIES, decided on Friday, November 7, 2014.
[ In the High Court of Calcutta, C.O. Nos. 4157 & 4158 of 2011 (Appellate Side). ] 07/11/2014
Judge(s) : SUBRATA TALUKDAR
Advocate(s) : Bidyut Banerjee, Learned Senior Counsel. None.
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    Constitution of India - Article 227 – Civil Procedure Code - Section 151- West Bengal Premises Tenancy Act 1997 - Section 6 Sections 27 to 37 Section 35 Section 44 – Tenancy - Respondent/tenant filed a suit to restrain petitioner from interfering in the peaceful enjoyment of the property and is pending in the trial court – respondents application to carry out repairs in the property was allowed by the trial court – Petitioner challenge the jurisdiction of the trial court in allowing to carry out repairs as it is with the rent controller –Court held – When a suit for recovery of possession is pending before a civil court the jurisdiction of the rent Controller shall be ousted which otherwise will lead to multiplicity of proceedings in different forum over the same issue – order of the trial court cannot be interfered with – petitions are dismissedPara 4 5 6 & 7Cases Referred:Somnath Mukherjee vs. Mamata Rani Saha 2006 (3) CHN 214State of Mizoram vs. Biakchhawna 1995 (1) SCC 156State of Uttar Pradesh vs. Sirhara Singh & Ors. AIR 1964 SC 358Case Relied upon:Somnath Mukherjee vs. Mamata Rani Saha 2006 (3) CHN 214     Subrata Talukdar J.In these two applications filed under Article 227 of the Constitution of India the judgment and order dated 21st December 2010 passed by the Learned 7th Civil Court (Junior Division) in Title Suit no.125 of 2010 in the matter of M/s. O.K. Industries Vs. Aditi Sadhukhan & Anr. along with judgment and order dated 26th September 2011 passed by the Ld. 2nd Additional District Court Howrah in Misc. Appeal no.8 of 2011 in the matter of Aditi Sadhukhan & Ors. Vs. M/s. O.K. Industries thereby affirming the judgment and order of the Learned Trial Court dated 21st December 2010 are under challenge.Taking this Court to the pleadings in CO 4158 of 2011 Sri Bidyut Banerjee Learned Senior Counsel appearing for the petitioners submits as follows:-a) That the present Opposite Parties (for short the OP) M/s. O.K. Industries instituted Title Suit no.125 of 2010 for declaration and permanent injunction before the Learned 7th Civil Court (Junior Division) at Howrah praying inter alia for a decree declaring the OP/Plaintiff to be a bonafide monthly tenant under the defendants/petitioners in respect of the suit premises and for enjoyment of such tenancy without any interruption to supplies of essential services. The OP/Plaintiff also prayed for permanent injunction restraining the present petitioners-defendants and their men and agents from disturbing the OP in the peaceful enjoyment of the suit premises and/or dispossessing the OP from the suit premises. That the petitioners/defendants contested the suit by filing written statement.b) During pendency of the suit the OP/Plaintiff filed an application under Section 151 CPC on the ground that the roof of the suit premises is badly damaged and prayed for an order allowing the OP/Plaintiff to carry out necessary repairs in terms of the schedule given in the said application. The application under Section 151 CPC of the OP was also contested by the petitioners by filing a written objection.c) In their written objection the petitioners/defendants took the point that the petition under Section 151 CPC is barred by the provisions of Section 44 of the West Bengal Premises Tenancy Act 1997 (for short the 1997 Act). The petitioners took the further point that the Learned 7th Civil Court (Junior Division) had no jurisdiction to pass any order directing repair of the suit premises since such jurisdiction is exercisable only by the Rent Controller being the competent authority. The petitioners also took the objection with regard to the claim to repair of the suit premises.d) Sri Banerjee had pointed out that the Learned 7th Civil Court (Junior Division) at Howrah by a cryptic order dated 21st December 2010 allowed the said petition under Section 151 CPC which reads as follows:-“That the instant petition under Section 151 of the C.P.C. filed by plaintiff is hereby allowed on contest without cost. The plaintiff is allowed to make repairing of the suit property as per the points as mentioned in the schedule of the instant application at their own cost without changing the nature and character of the same. Plaintiff has filed one application under Section 151 of the Code of Civil Procedure. Let it be kept on record.”Aggrieved by the non-application of mind by the Learned 7th Civil Court Howrah to take notice of the exclusive jurisdiction of the Rent Controller to decide a petition for repair under the 1997 Act the petitioners preferred an appeal being Misc. Appeal no.8 of 2011 before the Learned Additional District Court at Howrah. The said Misc. Appeal no.8 of 2011 was contested by the present OP on the ground that no such appeal can lie against the order passed under Section 151 CPC. Hence it was submitted on behalf of the OP that the said Misc. Appeal no.8 of 2011 should be dismissed as not maintainable.e) The petitioners as appellants therefore filed an application for converting the Misc. Appeal no.8 of 2011 into a revisional application. Such conversion application was filed before the Learned District Court at Howrah on 25th August 2011. By the order dated 20th September 2011 the Learned 2nd Additional District Court at Howrah was pleased to dismiss the appeal on merits alongwith the conversion petition.f) Sri Banerjee has argued that the Learned Appellate Court wrongly dismissed the appeal as well as the conversion petition without following due process of law. He submits that the Learned Appellate Court ought to have considered that the application under Section 151 CPC was in the nature of an interlocutory proceeding which would not come within the ambit of proceedings under Section 44 of the 1997 Act.g) It is the further submission of Sri Banerjee that the application for repair could not have been treated as an interlocutory proceeding in view of the provisions contained in Section 35 of the 1997 Act. He points out that the application for repairing and taking other steps to maintain the suit property falls exclusively within the domain of the Rent Controller and therefore must be treated as a separate proceedings. According to Sri Banerjee such application cannot be entertained in the suit and the jurisdiction of the Rent Controller cannot be usurped by the Learned Trial Court.h) Being aggrieved by such decision of the Learned Appellate Court vide dated 26th September 2011 affirmed the judgment and order dated 21st December 2010 Sri Banerjee prays for setting aside the same.i) In support of his submission Sri Banerjee relies upon the decision of this Court reported in 2006 (3) CHN 214 in the matter of Somnath Mukherjee vs. Mamata Rani Saha. He also relies upon two decisions of the Hon’ble Apex Court reported in 1995 (1) SCC 156 in the matter of State of Mizoram vs. Biakchhawna (paras- 7 & 10) and AIR 1964 SC 358 in the matter of State of Uttar Pradesh vs. Sirhara Singh & Ors. (para-15).Heard. Considered the materials on record.Upon careful reading of the judgment reported in (2006) 3 CHN 213 this Court finds that the Hon’ble Single Bench has clearly opined as follows at Paras 21 22 23 24 25 & 26:-“21. It therefore appears that Section 44 of the 1997 Act ousting the jurisdiction of the Civil Courts is in head on conflict with the provisions of Section 6 of the said Act which empowers the Civil Judge to deal with matters relating to recovery of possession. The relevant portion of Section 6 of the 1997 Act reads as follows:6. Protection of tenant against eviction.- (1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any contract no order or decree for the recovery of the possession of any premises shall be made [by the Civil Judge having jurisdiction] in favour of the landlord against the tenant except on an application made to him by the landlord in the prescribed manner on one or more of the following grounds....22. Such being the position it does not stand to reason that a Civil Judge having jurisdiction to entertain a matter relating to a dispute qua the landlord and tenant in respect of the tenanted premises would cease to have jurisdiction when the same tenant complains of disruption and/or curtailment of essential services in respect of the same premises. Such a position would be extremely disharmonious and will certainly give rise to multiplicity of proceedings between the same parties in respect of the same premises causing an additional prejudice to both the parties of having to undergo harassments in different forums when the same can be decided by the Civil Judge having jurisdiction to entertain a matter relating to recovery of possession. When any violation and/or grievance is made in respect of essential services of the premises which is the subject-matter of a pending litigation between the landlord and the tenant under Section 6 of the 1997 Act the Civil Judge will certainly have powers to deal with the same.23. This Court therefore is of the view that wherever a matter relating to recovery of possession under Section 6 of the 1997 Act is pending the Civil Judge having jurisdiction to deal with the same will alone have the jurisdiction to deal with all matters arising out of Chapters VIII and IX containing Sections 27 to 37 of the 1997 Act and in all such pending matters the jurisdiction of the Controller shall be ousted.24. The Controller will have jurisdiction only at a stage where the complaint is filed when there is no litigation already pending between the same parties before the Civil Judge but in all cases when a litigation is already pending before the Civil Judge the Controller will have no jurisdiction. This is how this Court interprets Section 44 of the 1997 Act.25. There is no dispute that the ejectment case is now pending before the 6th Court Civil Judge (Jr. Division) Alipore.26. For the foregoing reasons this Court comes to the inevitable conclusion that the Civil Judge has the jurisdiction to deal with an application under Section 27 in addition to his powers conferred upon him under Section 6 in a case where he is already in season of a matter pertaining to an application for recovery of possession. The impugned order therefore cannot be sustained and it is held that in the facts and circumstances involved in this case the opinion of the learned Civil Judge to the effect that it was only the Controller who could have dealt with an application under Section 27 was totally misconceived.”This Court is sufficiently persuaded to hold that the ratio of the judgment reported in (2006) 3 CHN 213 (supra) is apposite to the facts and circumstances of this case. Admittedly a civil suit is pending between the parties. The Ld. Civil Court is in seisin of the said civil suit. The application for repairs of the property-in-suit has been filed in connection with the pending suit. Therefore having regard to the language of Section 6 of the 1997 Act this Court is in respectful agreement with the judgment of the Hon’ble Single Bench reported in (2006) 3 CHN 213 (supra) on the point that in a pending suit instituted by the tenant for protection of his tenancy the Controller cannot exercise jurisdiction in such matter and the bar of Section 44 of the 1997 Act shall not apply.The other argument of Shri Banerjee by placing reliance on AIR 1964 SC 358 (Para 15) (supra) on the point that power under a stature can be exercised only in the manner laid down not in any other manner this Court is of the considered view that the observations of the Hon’ble Apex Court supports the ratio of the judgment reported in (2006) 3 CHN 213 (supra). In view of the operation of Section 6 of the 1997 Act the exercise of jurisdiction of the civil court in pending matters pertaining to the application of a landlord for the eviction of a tenant should apply with equal force to the converse case pertaining to an application filed by the tenant before the competent civil court for protection of his tenancy.To treat the two scenarios as different viz. distinguishing an ejectment suit filed by the landlord to be different from a converse suit for protection of his tenancy filed by the tenant shall amount to a denial of due process.For the forgoing reasons the order impugned dated 21st December 2010 passed by the Ld. Trial Court as affirmed by the order dated 26th September 2011 by the Ld. Appellate Court do not warrant any interference.CO 4157 of 2011 with CO 4158 of 2011 are accordingly dismissed.There will be however no order as to costs.Urgent certified photocopies of this judgment if applied for be given to the learned advocates for the parties upon compliance of all formalities.