SITA DEVI KHEMKA Vs. SAROJINI AGARWAL

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution of India praying for quashing or setting aside the order dtd. 16th January, 1993 passed by the Registrar, Small Causes Court, Calcutta in Suit No. 185 of 1992 and for other reliefs on being dispossessed from the Flat No. 4 now 2D, 2nd Floor, 12B, Russel Street, P. S. Park Street, Calcutta-71 and subsequently filed a supplementary affidavit challenging the validity of the entire proceedings being Suit No. 185 of 1992 alleging the same to be a nullity.

(2.) The fact of the case in short is that the plaintiff/opposite party filed a summery proceeding under section 41 of the Presidency Small Causes Court Act in the Court of the Small Causes, Calcutta against the petitioner/ opposite party for recovery of possession alleging that the petitioner/opposite party was mere licensee under the plaintiff-opposite party in respect of the said suit flat and that the said license was duly revoked. It was specifically alleged in the said proceeding by the plaintiff/opposite party that the petitioner was allowed to occupy the said suit flat as a leave and licensee in December 1976 at a monthly rent of Rs. 700/- with effect from January, 1977 on the basis of an agreement for license suppressing the fact that the plaintiff /opposite party's husband inducted the petitioner as a tenant persuant to an agreement for tenancy dtd. 10th December, 1976 at a monthly rent of Rs. 1030/- with effect from 1st January, 1977 in respect of the said suit flat. The petitioner was also to pay Rs. 400/- towards maintenance charges and other taxes. Such rent was paid to Sri L. S. Agarwal, husband of the plaintiff/opposite party since deceased, regularly. The said Lakshmi Sankar Agarwal died on 25th June, 1989. The petitioner by her letter del. 21st August, 1989, requested the plaintiff/opposite party to send the names of the legal heirs of the deceased Agarwal to enable her to send the rents at the earliest. By a letter dtd. 5th September, 1989 the plaintiff/opposite party informed the names of the legal heirs of the deceased Agarwal. The other co-landlords also by a letter dtd. 5th September, 1989 authorised the plaintiff/opposite party to realise the rent in respect of the suit flat and to grant rent receipts therefore. It is the case of the petitioner in the petition before us that the petitioner paid rent to the opposite party upto August 1990. The rent for the months of September, 1990 was refused to be accepted by the plaintiff/opposite party although the same was tendered. The petitioner thereafter started depositing the monthly rent with effect from September, 1990 till December, 1992 in the office of the Rent Controller at Calcutta @ Rs. 1,430/- per month which was the last rent paid.

(3.) Thereafter, the opposite party and her sons and daughter who were all the co-owners of the property in question served a notice to quit through their advocate Sri Gurudas Mitra dtd. 9th August, 1990 as per the provisions of section 13(6) of the West Bengal Premises Tenancy Act, 1956. By the said notice did. 9th August, 1990, the petitioner was informed that the opposite party and the other co-owners reasonably required the said tenancy premises for their own use and occupation and for the purpose of use and occupation of their family members and accordingly on behalf of all the co-owners including the plaintiff/opposite party called upon the petitioner to quit, vacate and deliver peaceful possession of the said suit flat in question on the expiry of the month of September, 1990 failing which the relationship between the parties should cease. It is stated that instead of filing a suit for eviction as provided under the provision of W.B.P.T. Act, 1956 the opposite party filed a summary proceeding before the Small Causes Court in Suit No. 185 of 1992 alleging that the relationship between the parties was mere leave and licence and that leave and licence was cancelled and accordingly prayed for an order for recovery of Khas possession of the suit property after eviction of the defendant in a summary manner. The Court below passed an order for recovery of possession ex pane and thereafter through bailiff and with the police help the petitioner was dispossessed forcibly from the flat in question on 15th January, 1993. It is the case of the petitioner that the Small Causes Court had no jurisdiction to pass a decree for eviction and recovery of possession in a summary proceeding when the relationship between the parties was that of landlord and tenant and governed by the provision of the W.B.P.T. Act, 1956 and when in the instant case admittedly the notice to quit was served as provided under section 13(6) of the said Act dtd. 9th August, 1990 by which the petitioner was called upon to quit and vacate on the expiry of the month of September, 1990. All these thing was deliberates, suppressed before the Small Causes Court and that it was alleged before the Court below that the petitioner was a mere licensee.