GOUR KISHORE DAS Vs. KRISHNA KUMAR BOSE

JUDGEMENT

(1.) This revisional application under Article 227 of the Constitution of India is directed against the order dated 3.9.90 passed by the Rent Controller, Calcutta in A.R.C. Case No.5 of 1989 (Fine) directing the petitioner-landlord to cause restoration of normal supply of filtered water in the tenanted premises within one month from the date of the order.

(2.) The opposite party is a tenant in respect of two rooms, kitchen and privy in the first floor of premises No. 140A, Harish Mukherjee Road under the petitioner at a monthly rental of Rs. 200/- payable according to English calendar months. The tenant-opposite party filed an application under section 31 of the West Bengal Premises Tenancy Act, 1956 against the petitioner before the Rent Controller, Calcutta alleging wilful obstruction in the supply line of filtered water by operation of stop cock. On receipt of summons the petitioner appeared on 12.2.90 but the tenant-opposite party who was the petitioner in the impugned proceeding was found absent on repeated calls and the learned Rent Controller dismissed the case for default. On 9.3.90 the tenant-petitioner filed an application for restoration of the said A.R.C. Case No. 5 of 1989 under Order 9 Rule 9, C.P. Code which was allowed by the learned Rent Controller. Thereafter, summons was served under section 68 of the Code of Criminal Procedure by hanging by the bailiff and 22.8.90 was fixed for appearance. On 22.8.90 the present petitioner did not, however, appear and the learned Rent Controller heard the case ex parte. By an order dated 3.9.90 he disposed of the petition under section 31 of the West Bengal Premises Tenancy Act holding the landlord not guilty of the offence under section 31 and acquitting him of the charge, but nevertheless directing the landlord to cause restoration of the normal supply of filtered water in the tenanted premises from the date of the order. Being aggrieved by the said order the O.P.-landlord has moved this court in revision under Article 227 of the Constitution of India.

(3.) Mr. Sengupta, learned Advocate for the petitioner has contended that the procedure adopted by the learned Rent Controller is entirely illegal. It has been urged that the order of dismissal was passed in total disregard to the provisions of section 256 Criminal Procedure Code and that the learned Rent Controller had no jurisdiction to restore the case under Order 9 Rule 9, C.P. Code which is not applicable. The further contention of Mr. Sengupta is that the trial being held ex parte in the absence of the present petitioner is entirely illegal and void and consequently the impugned order for restoration of supply of water is also illegal and without jurisdiction. The last contention of Mr. Sengupta is that the order for restoration of supply water is a consequential order which can be passed only after finding the landlord guilty of the offence under section 31 and imposing fine on him. It has been contended that as the petitioner was found not guilty of the offence under section 31, the order for restoration of supply of water is illegal and without jurisdiction. Mr. Banerjee, learned Advocate for the opposite party has raised preliminary objection that the present application under Article 227 of the Constitution is not maintainable in view of the alternative remedy by way of appeal under section 29 of the West Bengal Premises Tenancy Act being available to the petitioner.