CHAPALABALA DUTTA Vs. ARATI DE

JUDGEMENT

(1.) The present divisional application has been filed by the petitioner/defendant challenging Order No. 201, dated 16.2.87 passed by the learned Munsif, 3rd Court at Alipore in Title Suit No. 95 of 1978. By the impugned Order the learned Munsif has disposed of the application filed by Sm. Chapalabala Dutta, wife of defendant No. 1 since deceased, under Sections 17(2) and 17(2A) of the West Bengal Premises Tenancy Act. The learned Munsif has found that the defendant No. 1 during his life time filed an application under Section 17(2) of the said Act and the said application was rejected by Order No. 24, dated 13.7.72. From the record it further transpired before the learned Munsif that by Order No. 112, dated 25.5.79 the defence against delivery of possession was struck out and being aggrieved by the said Order the defendant No. 1 filed a revisional application being C.R. No. 3138 of 1979. During the pendency of the said case the defendant No. 1 died leaving behind his. widow, namely, the present petitioner, and three daughters as his heirs and legal representatives and they have been substituted in the Suit as defendant No. 1(a) to 1(d) accordingly. Thereafter the defendant No. 1(a) entered appearance and filed a petition under Sections 17(2) and 17(2A) of the West Bengal Premises Tenancy Act seeking relief as mentioned therein. Considering the facts and circumstances of the case, the learned Munsif has concluded that the Suit was not maintainable and the: substituted defendants cannot be permitted to agitate the same matter once again as the Order No. 24, dated 13.7.72 is still in force and the same is binding on the substituted defendant. Accordingly the petition filed by the substituted defendant under Sections 17(2) and 17(2A) of the said Act was rejected. Being aggrieved the said pendant/petitioner has come to this Court.

(2.) Mr. Bagchi, learned Advocate appearing for the petitioner, has mainly argued that the definition of 'tenant' as provided in Section 2(h) of the West Bengal Premises Tenancy Act is very clear, inasmuch as, the substituted defendant has every right available to him to seek relief in the manner as provided in the statute itself. For better appreciation, the said definition of tenant is quoted herein below:

(3.) From the said definition Mr. Bagchi has developed his argument by drawing the attention of the Court to the definition of tenant as indicated above that an heir of a tenant, who is brought on record, is entitled to seek all reliefs as provided under the provisions of the West Bengal Premises Tenancy Act. In support of his contention he has referred to a decision reported in 91 CWN 792 (Shefali Addva v. Sunil Kumar Mondal). Sankar Bhattacharyya J. was pleased to decide that a statutory tenancy, like a contractual tenancy, is heritable and after the death of a statutory tenant all his heirs inherit the estate of a deceased tenant and are to be substituted in place of the deceased tenant. If any one of them is left out, the Suit will fail for non-joinder of necessary party. It will further appear from the said reported decision that no an ultimate analysis of the amended definition of the term 'tenant' in Section 2(h) of the West Bengal Premises Tenancy Act, it appears that all the heirs of the statutory tenant, who dies during the pendency of the Suit for ejectment against him, inherit the estate of the deceased tenant as his legal representatives. All such heirs must be substituted in place of the deceased tenant as his legal representatives under Order 22 Rule 4 of the Code of Civil Procedure and if any one of them is left out, the Suit will fail for non-joinder of necessary party. As, legal representatives of the tenant, it is open to all the heirs to defend the Suit by claiming that there having been no determination on the tenancy by any valid notice to quit their right to remain in occupation and enjoyment of the Suit premises as lessees continue or on grounds other than those based on the Act as are permissible in law. It is further held that in view of the amended definition of Section 2(h) the protections and privileges available to a tenant under the Act, to wit, under Sections 17(2), (2A), (4), Section 17A, etc., will be available to only those heirs of the statutory tenant as were ordinarily residing with him at the time of his death and are, as such tenants, as contemplated by Section 2(h) of the Act.