MANATOSH LAHIRI Vs. BISWANATH BHATTACHARYA

JUDGEMENT

(1.) The plaintiff in T. S. No. 87 of 1985 of the first court of Munsif, Howrah sued the defendant for eviction from the suit property. The suit premises is governed by West Bengal Premises Tenancy Act (hereinafter called the Act). During the pendency of the petition under Sec. 17(2) and (2A) of the Act the defendant -petitioner preferred an application for stay of the proceeding until hearing of his petition for fixation of fair rent under Sec. 10 of the Act which was registered by the Rent Controller as P. T. Case no. 12 of 1989. The trial court rejected the petition. So the defendant -petitioner has preferred by his revision. There is no doubt that even after determination of tenancy or as a matter of fact after institution of suit for eviction a tenant can maintain a petition under Sec. 10 of the Act. The definition of tenant in Sec. 2(h) of the Act includes a statutory tenant. Sec. 10 of the Act therefore brings within its scope determination of fair rent on the application of a statutory tenant. Similar question came up for consideration before a Bench of this court. In Nisit Kumar Sarkar v/s. Sunil Kumar Bose (89 Calcutta Weekly Notes 971) the learned Judges held that a statutory tenant can very well ask for fixation of fair rent under Sec. 10 of the Act.

(2.) Relying upon the decision in P. V. Shetty v/s. B. S. Giridhar ( : AIR 1982 SC 83) it is urged on behalf of the petitioner that pending determination of fair rent by the Rent Controller the hearing of the petition under Sec. 17(2) (2A) of the Act may be stayed. In view of the statements made in paragraphs 3 to 5 of the revisional application the petition for stay is liable to be rejected. What has been sought to be said in those paragraphs is that the petitioner preferred an application under Sec. 10 of the Act since there is a dispute as to the rate of rent. The landlord claims that rent is Rs. 75/ - per month while the tenant says that it is Rs.55/ - only. I am afraid the Rent controller can hardly decide such a dispute. Furthermore, the controversy as to the rate of rent will be set at rest in the decision under Sec. 17(2) of the Act by the trial court itself. Therefore the civil court need not await the decision of the Rent Controller in this behalf while such a controversy is awaiting decision before itself.

(3.) Therefore P. V. Shetty's case (supra) has no application. Even if we assume for argument's sake that the petitioner asked for fixation of fair rent before the Rent Controller, the Supreme Court decision has no application in the facts of the present case. In that case the disposal of the suit without determination of fair rent would cause serious prejudice to the tenant since he would be denied the protection of Rent Act having regard to the contractual rent. If the Rent Controller would fix rent at Rs.500/ - or below per month as against contractual rent of Rs.650/ - the tenant would get protection under the Rent Act. This fact very much weighed with the Supreme Court to stay the suit. This conclusion is conspicuously absent in this case. The other factor taken into account by the Supreme Court is that the application for fixation of fair rent preceded the institution of the suit. In the instant Case the petition has been filed as late as in 1989 while the suit was filed in 1985. The belated application can hardly be held to be bonafide. It is intended to stall the suit. I have the other reason to say so. The remedy of grievance, as pointed out above, is very much available to the trial judge while he unnecessarily rushes to the Rent Controller. In this view of the matter also the stay should be refused.