MANTU NAIK Vs. BANKIM CHANDRA MAITY

JUDGEMENT

(1.) - Defendant No. 2 in a suit, filed against Sri Radhakrishan Giri of village Mozilapur, Post Office Dunki, District. Midnapore for eviction from a shop room at Contai by the plaintiff/ opposite party is the petitioner before me in this revisional application. The plaintiff/opposite party has brought the aforesaid ejectment suit against the petitioner and the said Radhakrishan Giri, defendant/opposite party No. 2 in this revisional application in the first court of the Munsif at Contai, District Midnapore. In the aforesaid ejectment suit, although summons was served upon the opposite party No. 2 he did not enter appearance in the suit. It is the petitioner who after entering appearance had filed two applications under section 17(2) and 17(2A) of the West Bengal Premises Tenancy Act (hereinafter referred to as the said 'Act') for determination of the arrears of rent payable by him to the plaintiff/opposite party and on such determination suitable instalments be granted to him for deposit of arrears of rent. The applications under section 17(2) and 17(2A) of the Act were however, contested by the plaintiff/opposite party in which the opposite party specifically pleaded that the petitioner was never a tenant under him. Therefore, according to the plaintiff/opposite party there was no relationship of landlord and tenant between him and the petitioner. Issues have been framed in the suit. Issue No. 4 is "whether there is any relationship of landlord and tenant between the petitioner and the opposite party No. 1". It may be mentioned at this stage that the petitioner did not raise any objection as to the jurisdiction of the trial court to take up the hearing of the aforesaid issue No. 4 along with the applications under section 17(2) and 17(2A) of the Act without taking up the other issues. In order to prove that there was relationship of landlord and tenant between the petitioner and the plaintiff/opposite party, evidence was also adduced in behalf of the petitioner. The plaintiff/opposite party, also in support of his case, adduced evidence. Issue No. 4 was found on fact by the learned Munsif, first court, at Contai, Midnapore against the petitioner by an order dated 24th April, 1990 and an application for review of this order was filed by the petitioner which was also rejected by the trial court. It is on record that subsequently by another order being order No. 72 passed on the same date-that is on 18th April, 1992, the trial court also rejected the petitions under section 17(2) and 17(2A) of the Act on a footing that there was no relationship of landlord and tenant between the parties. Feeling aggrieved by the aforesaid orders the petitioner has come up to this court is revision with an application for condonation of delay in moving the revisional application against the order dated 24th April, 1990 disposing of the issue No. 4 against the petitioner. Considering the facts and circumstances of this case I am satisfied that the delay in filing revisional application against the order dated 24th April, 1990 disposing of the issue No. 4 against the petitioner, has been properly explained by the petitioner and accordingly the delay in moving the same against the aforesaid order is condoned.

(2.) Mr. Roychoudhury, appearing on behalf of the petitioner, has not questioned the findings arrived at by the Trial Court on the question of relationship of landlord and tenant between the petitioner and the opposite party and also has not questioned the validity of the order passed by the trial court rejected the petitions filed under section 17(2) and 17(2A) of the Act on a footing that in view of the finding that there was no existence of relationship of landlord and tenant between the petitioner and the opposite party, the applications under section 17(2) and 17(2A) of the Act filed by the petitioner who was found to be not a tenant under the plaintiff/opposite party by the aforesaid order, were not maintainable in law. The only question that was raised by Mr. Roychoudhury, appearing on behalf of the petitioner, is that the trial court had acted illegally and without jurisdiction in disposing of the issue No. 4 in separation of other issues framed in the suit. According to Mr. Roychoudhury, in view of the amended provisions of Order 14 rules 1 and 2 of the Code of Civil Procedure, in procedure adopted by the learned Munsif in taking up the issue No. 4 in separation of other issues was not at all permissible and accordingly, the learned Munsif had no jurisdiction to take up the issue No. 4 for final decision without taking up other issues framed in the suit or issue No. 4 could not be disposed of at the time of disposal of the petitions filed under Section 17(2) and 17(2A) of the Act. According to Mr. Roychoudhury, in order to decide the applications under section 17(2) and 17(2A) of the Act, if any finding is required to be made on the question of relationship of landlord and tenant between the parties, it would be open to the Court to come to a finding on such question. But the finding arrived at, while deciding the petitions under section 17(2) and 17(2A) of the Act, would be construed to have been made only for the purpose of deciding the applications under section 17(2) and 17(2A) of the Act. Therefore, Mr. Roychoudhury contended that since this procedure was not followed and on the other hand the issue No. 4 was taken up in separation of the other issues and in view of the amended provisions of Order 14 rules 1 and 2 of the Code of Civil Procedure where it has been clearly said that all issues must be tried together, the trial court had acted illegally and with material irregularity in disposing of the issue No. 4 in separation of the other issues. This argument of Mr. Roychoudhury was however, contested by Mr. Sudhis Dasgupta who appeared on behalf of the plaintiff/opposite party. According to Mr. Dasgupta, the petitioner cannot be permitted to raise this question in revision when the petitioner himself participated in the proceeding without raising any objection to the extent that the issue No. 4 cannot be decided in segregation of other issues or with the petitions under section 17(2) and 17(2A) of the Act. Mr. Dasgupta, however, contended that assuming the petitioner can be permitted to raise such question in this revisional application even then the amendment of Order XIV of the Code of Civil Procedure does not prohibit the court from taking up an issue of fact independently of other issues nor the position in law which was prevailing before the amendment of Order XIV of the Code of Civil Procedure has been changed on account of such amendment.

(3.) Having heard Mr. Roychoudhury for the petitioner and Mr. Dasgupta appearing on behalf of the plaintiff/opposite party and after taking into consideration the submissions made on behalf of the parties I am of the view that the learned Munsif had not acted illegally and with material irregularity in the exercise of his jurisdiction in taking up the issue No. 4 in separation of other issues framed in the suit or at the time of final disposal of the petitions under section 17(2) and 17(2A) of the Act. Therefore, no interference can be made against the impugned orders in the exercise of my revisional power under section 115 of the Code of Civil Procedure.