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M/s. Express Trading Agency v/s Dipak J. Popat & Others


Company & Directors' Information:- A T EXPRESS INDIA LIMITED [Strike Off] CIN = U93030DL2009PLC193660

Company & Directors' Information:- N R EXPRESS PRIVATE LIMITED [Active] CIN = U63040WB1999PTC089271

Company & Directors' Information:- P J EXPRESS PRIVATE LIMITED [Strike Off] CIN = U63040WB1995PTC075515

Company & Directors' Information:- DIPAK CORPN PVT LTD [Strike Off] CIN = U67120WB1960PTC024859

Company & Directors' Information:- G M S EXPRESS PRIVATE LIMITED [Active] CIN = U64120KA2006PTC040159

Company & Directors' Information:- U C EXPRESS PRIVATE LIMITED [Strike Off] CIN = U64120MH2004PTC148038

Company & Directors' Information:- R R EXPRESS PRIVATE LIMITED [Active] CIN = U97000DL2014PTC267284

Company & Directors' Information:- S F EXPRESS PRIVATE LIMITED [Active] CIN = U64120DL2015PTC279322

Company & Directors' Information:- J. K. EXPRESS PRIVATE LIMITED [Strike Off] CIN = U63090GJ2012PTC070288

Company & Directors' Information:- D K G EXPRESS PRIVATE LIMITED [Strike Off] CIN = U15499UP1982PTC005721

Company & Directors' Information:- P AND G EXPRESS PRIVATE LIMITED [Strike Off] CIN = U64120MH2003PTC139461

    C.O. No. 3171 of 2015

    Decided On, 27 January 2017

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SAHIDULLAH MUNSHI

    For the Petitioner: Abhijit Ray, Kusum Lundia, Rafat J. Ekram, Advocates. For the Opposite Parties: Aniruddha Chatterjee, Noelle Banerjee, Dipak Dey, Dipanjan Dey, Advocates.



Judgment Text

1. This revisional application under Article 227 of the Constitution of India is directed against order no.18 dated 14th January, 2015, passed by the learned Judge, 5th Bench, Small Causes Court at Calcutta in Ejectment Suit No.27 of 2013. By the order impugned the learned Judge has struck off the defence of the defendant against delivery of possession in respect of the suit premises under Section 7(3) of the West Bengal Premises Tenancy Act, 1997.

2. The present revisional application has been filed by the defendant/tenant and has prayed for setting aside the order impugned, inter alia, on the grounds -

1) That the learned Court below has acted illegally and with material irregularity in allowing the petition under Section 7(3) of the West Bengal Premises Tenancy Act, 1997, striking out the defence against delivery of possession in respect of the suit premises.

2) That the order passed under Section 7(2) of the said Act, was without jurisdiction being passed by the learned Chief Judge, City Civil Court at Calcutta.

3. It is on record that an order was passed by the learned Chief Judge, City Civil Court on 27th November, 2013, dismissing defendant/tenant's application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997, whereby the defendant prayed before the Court to decide the arrear rent due and payable by the defendant/tenant and to permit him to deposit the same together with statutory interest in easy instalments. Assailing the order dated 27th November, 2013, the defendant/tenant filed a revisional application before this Hon'ble Court being C.O. No.921 of 2014.

4. The said revisional application was dismissed by an order dated 24th November, 2014 by this Hon'ble Court.

5. The defendant also questioned the jurisdiction of the Court in passing the order on 27th November, 2013 in his application under Section 7(2) of the aforesaid Act. According to the petitioner, since the Court below had no jurisdiction to pass such order, the same should be treated to be a nullity and based on the said order there was no scope for passing the impugned order under Section 7(3) of the said Act.

6. The landlord/opposite party has filed affidavit-in-opposition.

7. I have perused the same. With the said affidavit-in-opposition, the opposite party has annexed a copy of the revisional application in C.O. No.921 of 2014. On perusal of the said revisional application being C.O. No.921 of 2014, it appears that the defendant, while filing the said revisional application, mentioned in ground no.5 thereof that "the learned Court below acted illegally and with material irregularity by not considering that even learned Court had no jurisdiction to hear the said application." It is not disputed that the said revisional application was dismissed and the defendant has not preferred any appeal therefrom before any higher Forum. That being so, the issue has been settled with regard to the question of jurisdiction and the same cannot be re-agitated in a fresh revisional application before a Co-ordinate Bench. Therefore, this Court is of considered view that this Court has no jurisdiction to sit in appeal over the order dated 24th November, 2014, passed by a Single Bench of this Court, dismissing the defendant's earlier revisional application.

8. That apart, this Court cannot overlook the provisions of Section 11 of the Code of Civil Procedure. Explanation V of the said Section 11 is relevant for the present purpose. It says that any relief claimed in the plaint, which is not expressly granted by the decree, for the purpose of Section 11, shall be deemed to have been refused. Section 11 with its explanation V is set out below:-

"Res judicata - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I - The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II - For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to right of appeal from the decision of such Court.

Explanation III - The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV - Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V - Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

Explanation VI - Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

Explanation VII - The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

Explanation VIII - An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised."

9. In the present case, the earlier revisional application contained a ground challenging jurisdiction of the Court and Court has not expressly granted the relief sought for. Such relief shall be deemed to have been refused. The defendant having not proceeded against such order passed in C.O. No.921 of 2014, the same is barred by the principles of res judicata within the meaning of Section 11 of the Code of Civil Procedure.

10. Therefore, this Court has no jurisdiction to re-open the issue once again in the present revisional application.

11. So far the other aspect, that is, whether the learned Court below is right in passing the order impugned under Section 7(3) of the aforesaid Act, this Court has no hesitation to hold that if an order passed under Section 7(2) of the aforesaid Act has been allowed to reach finality, the learned Court below is left with no option but to pass consequential order under Section 7(3), if prayed for by the landlord/plaintiff, and this has exactly happened in the present case. Therefore, this Court finds no illegality in the order impugned. Learned Court below has categorically mentioned that the arrear rent which was admitted by the defendant in his application under Section 7(2) of the said Act, was never deposited by him in Court, rather a vague assertion has been made that the learned Court below did not decide the arrear.

12. Learned advocate appearing for the petitioner, in support of his submission, has made it a point that the Court has no jurisdiction to hear the application under Section 7(2) of the aforesaid Act and has produced a bunch of decisions, namely,

* AIR 1987 Allahabad 319 (Har Narain v. Vinod Kumar)

* AIR 2010 Punjab & Haryana 30 (Tara Chand Sharma & Anr. v. Smt. Uma Aggarwal & Ors.)

* AIR 2010 Punjab & Haryana 40 (Praveen Kumar & Ors. v. Smt. Baljinder Kaur & Ors.)

* AIR 1978 Madhya Pradesh 22 (Harcharanlal Gupta v. Regional Transport Authority, Gwalior & Ors.)

* AIR 1984 Patna 316 (Ram Negendra Tiwary & Ors. v. Jagdamba Ojhain & Ors.)

* AIR 1984 Patna 323 (Yogendra Das & Ors. v. State of Bihar & Ors.)

* AIR 1982 Gujarat 142 (Gandabhai Jinabhai v.

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Ramubhai Fakirbhai (deceased by L. Rs.) * AIR 1982 Gujarat 145 (National Insurance Co. Baroda v. Diwaliben & Ors.) * A judgment and order dated 24.06.2010, passed in C.O. 275 of 2010 (Raj Kumar Modi v. Prabhas Dutta) and * (1991) 1 CHN 279 (Smt. Kali Talukdar v. Prodosh Kumar Bajpaie), 13. Not a single one of such decisions has any relevance in the facts and of the present case. On a careful perusal of the materials disclosed by the parties, it appears that the order impugned does not call for any interference. The order impugned is affirmed. The revisional application is dismissed. However, in the facts and of the case, there will be no order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.
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