SUBIKASH ROY Vs. LEENA CHATTERJEE

JUDGEMENT

(1.) This revisional application has been directed against the judgment and order dated 7th August, 1992 passed by the learned Additional District Judge, 5th Court, Alipore in R.C. Appeal No. 4 of 1991 whereunder learned Judge dismissed the appeal in affirmation of the judgment dated 1.1.1991 of the Rent Controller in Calcutta in R.C. Case No. 348 of 1988. By that judgment the learned Rent Controller dismissed the petitioner's application under section 7 of the West Bengal Premises Tenancy Act, 1956.

(2.) Being aggrieved by the said judgment of the learned Additional District Judge, Alipore, the tenant-appellant has preferred the present Revisional Application under Article 227 of the Constitution of India challenging the same as erroneous, illegal and unsustainable.

(3.) The case of the petitioner-tenant in brief is that he has been a tenant in respect of the first floor of premises No. 57A, Linton Street, Cal-14 under the landlord-opposite party since 1955 at a monthly rental of Rs. 49.50. Since the inception of the tenancy the tenant was enjoying electricity from the meter installed in his name and the electricity which he used to enjoy was D.C., later after 1978 he applied before the CESC for conversion of the D.C. Meter into A.C. But at this time the opposite party-landlord refused to give her consent for such conversion of the D.C. Electric Meter into A.C., unless he paid a higher sum towards rent and in this way having been compelled under the circumstances in order to obtain consent of the landlord/landlady, he agreed to pay rent at an enhanced rate of Rs. 200/- per month and continued to pay the rent at such rate. Since such enhancement of the rent was illegal, he preferred an application under section 7 of the W.P.P.T. Act before the Rent Controller for refund of the entire amount paid by him in excess of the earlier rent, namely, Rs. 49.50. He filed that application on 1st October, 1988 while the first payment of the said enhancement as made for the month of April, 1988. There was thus delay in the matter of filing of this application for about a month. The opposite party-landlord did not appear before the Rent Controller even after receiving the notice and hence the case was taken up for ex-parte hearing by the Rent Controller and after taking evidence of the petitioner-tenant both oral and documentary he disposed of the case by dismissing the application ex-parte on 1.1.1991. The reasons which weighed with the learned Rent Controller in coming to such a finding was mainly that the rent receipt for the month of April, 1988 could not be produced by the applicant-tenant wherefrom his alleged first payment at the enhanced rate of rent could be shown and the rent receipt that was produced by the applicant was for the month of October, 1988 dated 1st November, 1988, whereas the application was filed one month prior to that date. In such premises, it was held by the learned Rent Controller that the applicant had failed to show that any cause of action arose as alleged on the date of the said application under section 7 of the Act.