KALIPADA SINHA Vs. DILIP KUMAR MONDAL

JUDGEMENT

(1.) The opposite party filed Ejectment Suit No. 257 of 1982 against the petitioner for his eviction from the suit premises in the City Civil Court at Calcutta on the ground of default and for the act of nuisance and annoyance. The petitioner contested the said suit by filing written statement denying and disputing the allegations as made in the plaint and also filed applications under Ss. 17(2) and 17(2A) (b) of the West Bengal Premises Tenancy Act, 1956, raising therein inter alia the dispute regarding relationship of landlord and tenant between the parties. Before the disposal of the said applications under Ss. 17(2) and 17(2A)(b) the said suit was decreed ex parte in June 1982 and the petitioner was dispossessed in February, 1983 with the help of the police from the disputed premises. Subsequently, on an application under Order IX Rule 13 of the Code of Civil Procedure filed by the petitioner for setting aside the said -ex -parte decree, which was registered as Miscellaneous Case No. 165 of 1983,. the trial court set aside the said ex -parte decree and restored the suit to file. Thereafter the petitioner filed an application under Sec. 151 of the Code of Civil Procedure in the trial court praying for an injunction restraining the opposite party from transferring, and/or letting out the suit premises and obtained an interim order on 23rd February, 1983. An application under Sec. 144 of the Code of Civil Procedure was also filed by the petitioner for restoration of possession in respect of the suit premises which gave rise to Misc. Case No. 982 of 1983 and the same was ultimately allowed on 5th February, 1986. Ore Rabi Dey, however, filed a title suit in the City Civil Court at Calcutta making petitioner and the opposite parties herein as parties in the said suit inter alia, for declaration that he was a tenant in respect of the disputed promises since 8th February, 1983 and also for injunction restraining the petitioner from executing the order passed on his application under Sec. of the Code of Civil Procedure as referred to above and brained an ad -interim order. The petitioner filed an application under Order XXXIX Rule 4 of the Code of Civil Procedure in the said suit subsequently, and at the time of moving the present revisional application the said application was still pending. After the suit was restored to file, the learned Judge by the impugned order dated 4th of August, 1985 disposed of the aforesaid application under Sec. 17(2) and 17(2A)(b) filed by. the petitioner holding inter alia, that there was relationship of landlord and tenant between the parties and the petitioner was a defaulter in payment of rents since January, 1981, to 6th February, 1983 as. the petitioner admittedly was dispossessed from the suit premises on 7th February, 1983. Mr. Ghosh, learned Advocate for the petitioner in this present Civil Order, has challenged the impugned order contending inter alia, that the findings arrived at by the learned judge of the court below that there was relationship of landlord and tenant between the parties is based on surmises and conjectures and on a clear mis -appreciation of the facts and circumstances of the case and that the period of default as calculated by the learned Judge was also not properly decided inasmuch as, the moment an ejectment decree was passed against the petitioner in respect of the disputed premise, he ceased to be a defaulter still he was evicted from the suit premises in tenant in respect thereof and as such, even if, he was a defaulter in payment of rent, he could not, in such circumstances of the case, be held to be a execution of the said decree and his liability to pay rent under Sec. 17(1) and 17(2) of the West Bengal Premises. Tonahcy Act also ceased to exist from the date of the said ejectment decree and it only revived after the said decree was set aside. In support of his said contention, Mr. Ghosh refers to a decision of this Hon'ble Court in the case of Lakhpart Rai Marwari v/s. Radheshyam. ( : 69 C.W.N. 858).

(2.) Mr. Chatterjee, learned Advocate, appearing for the opposite parties, however, has supported the impugned order on the basis of the Special bench decision of this Hon'ble Court in Sriniwas Sureka v/s. Madanlal Sekhsaria and Ors. ( : AIR 1973 Cal. 13).

(3.) Having heard the learned Advocates for the parties, so far as the finding of the learned trial judge regarding the question of relationship of landlord and tenant between the parties, I find on reason to interfere under Sec. 115 of Code of Civil Procedure. Regarding the last submission of Mr. Ghosh however, I am of the view that the leaned judge of the court below had acted with material irregularity and also in excess of his jurisdiction in holding that the petitioner was liable to pay rent, even after the ejectment decree was passed against, him still he was actually dispossessed from the suit premises.