SUDHIR KUMAR CHAKRAVARTI Vs. ASHUTOSH BHATTACHARJEE

JUDGEMENT

(1.) This Rule is directed against order dated 26th June, 1978 passed in Rent Control Appeal No. 64 of 1977 by the learned Additional District Judge, 12th Court at Alipore setting aside the order dated 12th July, 1977 by the learned Rent Controller in Rent Control Case No. 502 of 1970.

(2.) The petitioner was a monthly tenant under the opposite party in respect of the disputed premises at 2A Kabir Road, Calcutta at a rental of Rs.180/- per month payable according to English Calendar. It appears that the landlord determined the tenancy of the petitioner by serving a notice of ejectment dated 11th April, 1970 which was received by the tenant on 18th April, 1970. After the expiry of the prescribed period of notice, a suit for eviction was instituted by the landlord against the said tenant being Title Suit No.212 of 1970 pending in the 3rd Court of the learned Munsif at Alipore. The said Title Suit was subsequently re-numbered as Title Suit No. 62 of 1970 of the 2nd Court of the learned Additional Munsiff at Alipore. It appears that the defence of the tenant against delivery of possession of the suit premises has been struck down under the provisions of S. 17(3) of the West Bengal Premises Tenancy Act, 1956 in the said Title Suit No. 68 of 1972. The tenant petitioner during the pendency of the said suit made an application under S. 8 of the West Bengal Premises Tenancy Act for determination of fair rent in respect of the suit premises before the learned Rent Controller. The said application under S. 8 for determination of fair rent was opposed by the plaintiff landlord before the learned Rent Controller on the ground that the tenancy having been determined and the suit for eviction having been instituted the said application under s. 8 of the West Bengal Premises Tenancy Act for determination of fair rent was not maintainable in law. It was further contended on behalf of the tenant petitioner before the learned Rent Controller that although the tenancy was determined by serving a notice of ejectment and a suit for eviction had been instituted, there had not been any cessation of tenancy and the tenant had right to continue as a statutory tenant until a decree for eviction was passed in the said ejectment suit. Accordingly, the said statutory tenant had the right to maintain the said application under S. 8 of the West Bengal Premises Tenancy Act and the learned Rent Controller was quite competent to determine the fair and/or standard rent in respect of the suit premises. It appears that by order dated 12th July, 1977 passed in the Rent Control Case No. 502 of 1970 arising out of the said application under S. 8 of the Premises Tenancy Act, the learned Rent Controller accepted the contention of the tenant petitioner and the preliminary objection raised by the landlord opposite party that the said application was not maintainable was rejected and the learned Rent Controller set down the Rent Control Case for argument. Being aggrieved by the aforesaid order of the learned Controller rejecting the preliminary objection of landlord opposite party about the maintainability of the said application under S. 8 of the Premises Tenancy Act, the landlord opposite party preferred an appeal being Rent Control Appeal No.64 of 1977 before the 12th Court of the learned Additional District Judge at Alipore. It was contended before the learned Additional District Judge by the landlord opposite party that after the determination of the tenancy the tenant had no locus standi to maintain the said application under S. 8 of the Premises Tenancy Act and that in any event during the pendency of the appeal the defence of the tenant having been struck down under S. 17(3) of the West Bengal Premises Tenancy Act, there was no scope of proceeding with the said application under S. 8 for determining the standard and/or fair rent of the suit premises, because the tenant after striking out his defences, could hardly raise any plea that the existing rent for the tenancy was excessive or unfair. The landlord opposite party referred to the decision of the Supreme Court made in the case of Smt. Bela Das & Ors. v. Samarendra Nath Bose reported in AIR 1973 SC 398 for the said contention and it appears that the learned Additional District Judge accepted the contention raised by the landlord opposite party and allowed the said appeal and held that the said application under S. 8 of the Premises Tenancy Act filed by the tenant petitioner was not maintainable in law. Being aggrieved by the aforesaid order the tenant petitioner moved an application for revision under S. 115 of the Code of Civil Procedure and the instant Rule was issued by this Court.

(3.) Mr. Dasgupta, the learned Counsel for the tenant petitioner contended that although the contractual tenancy was determined and the suit for eviction was pending but the tenant was entitled to enjoy all the privileges of a tenant so long as the decree for eviction was not passed against the said tenant in the ejectment suit filed by the landlord. Mr. Dasgupta contended that although at the inception of the tenancy contract between the landlord and tenant was the basis but it cannot be contended that with the determination of the tenancy the estate of the tenant will disappear. For this contention Mr. Dasgupta referred to the decision of the Supreme Court made in the case of Damadilal & Ors. v. Parashram & Ors. reported in AIR 1976 SC 2229. In the said case, the Supreme Court was considering Madhya Pradesh Accommodation Control Act and the definition of tenant in S. 2(i) of the said Madhya Pradesh Accommodation Control Act was taken into consideration by the Supreme Court and it was held by the Supreme Court that in its origin there was contract in each tenancy but it cannot be contended that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status and not the estate he had in the premises. Considering the definition of tenant in the said S. 2(i) of the Madhya Pradesh Act, the Supreme Court held that a tenant even after the determination of tenancy continues in possession of the suit premises as a tenant unless a decree or order for eviction is passed against him and the incidents of such tenancy must, therefore, be the same unless any provision of the Act conveyes a contrary intention. Mr. Das Gupta submitted that the definition of tenant as amended under the West Bengal Premises Tenancy Act is similar to S. 2(1) of the said Madhya Pradesh Accommodation Control Act and it is quite apparent that on the face of the said Supreme Court decision the tenant even after the determination of the tenancy continues in possession of the suit premises in the same manner as he had been doing before the determination of the contractual tenancy and filing the suit for eviction. Mr. Das Gupta submitted that there was no contrary intention conveyed in the West Bengal Premises Tenancy Act and it must be held that a statutory tenant even after the determination of the tenancy enjoys all the right and privileges available to a contractual tenant. Accordingly, the application under S. 8 is maintainable in law. Mr. Dasgupta next contended that the West Bengal Premises Tenancy Act has an overriding effect and the right of the landlord to get recovery of possession from the tenant is subject to the provisions of the West Bengal Premises Tenancy Act. Hence simply because a suit for eviction has been filed the landlord is not entitled to recover possession under the provisions of the Transfer of Property Act and until and unless the grounds specified in West Bengal Premises Tenancy Act are fulfilled a landlord is not entitled to recover possession from the tenant and despite determination of contractual tenancy by the landlord the statute has recognized the right of the tenant to continue in possession with all rights and privileges available to a contractual tenant. In such circumstances an application under S. 8 of the West Bengal Premises Tenancy Act for determination of fair rent is applicable at the instance of such statutory tenant.