F. M. A. T. No. 50 of 2015 and C. A. N. No. 1146 of 2015. Case: Debrabata Mukherjee Vs Arup Guha. High Court of Calcutta (India)
| Case Number | F. M. A. T. No. 50 of 2015 and C. A. N. No. 1146 of 2015 |
| Counsel | For Appellant: Ashis Kumar Sanyal, Basudeb Gayen, Amar Kumar Bhowmick, Sandip Kundu, Advs. and For Respondents: Saptangshu Basu, Ganesh Prasad Shaw, Farhan Faffar, Advs. |
| Judges | Nishita Mhatre, J. and R. K. Bag , J. |
| Issue | Specific Relief Act (47 of 1963) - Section 34; West Bengal Premises Tenancy Act (37 of 1997) - Section 26(3); Civil Procedure Code (5 of 1908) - Section 9, Order 7 Rule 11 |
| Citation | AIR 2015 Cal 172 |
| Judgement Date | April 24, 2015 |
| Court | High Court of Calcutta (India) |
Judgment:
Nishita Mhatre, J.
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Being aggrieved by the decision of the Trial Court dated 12th December, 2014 in Title Suit No.2015 of 2009, the appellant has approached this Court. By the impugned order the Trial Court has held that it had no jurisdiction to entertain the suit and therefore, passed an order under Order 7, Rule 11 of the Code of Civil Procedure (for short "CPC") rejecting the plaint. The Court was of the view that the plaint could not be entertained as it was barred by the provisions of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as "WBPT Act, 1997").
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A brief chronology of facts is required to be mentioned in order to comprehend the relationship between the parties. The appellant filed proceedings under Section 26(3) of the WBPT Act, 1997 in which he prayed for a declaration that he was a direct tenant of M/s. Chamaria Properties Private Limited, i.e., the Respondent No.4 herein. The application was dismissed on 19th June, 2012 by the Controller on the ground that the Controller was barred from passing any order in view of the fact that litigations between the parties were pending in the civil courts.
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Proceedings under Section 41 of the Presidency Small Cause Courts Act, 1882 (hereinafter referred to as "the Act of 1882") were filed by the Respondent Nos. 2 and 3 on 17th December, 2003 for recovery of possession of the suit premises from the appellant herein. The Respondent Nos. 2 and 3 contended in the aforesaid application that the appellant was their licensee. They claimed possession of the premises in view of the fact that the licence had been terminated. The Small Cause Court passed an order for recovery of the khas possession of the suit property on 9th April, 2009. The Court further directed the appellant to vacate the suit premises within two months of the order. Admittedly this order has not been challenged by the appellant in any court of law. Therefore, it has attained finality.
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Title Suit No.2015 of 2009 was filed before the City Civil Court by the appellant on 28th April, 2009. The appellant sought a declaration that he is a lawful sub-tenant of Respondent No.1 herein in respect of the suit premises. He also prayed for a declaration that the order passed in SCC Suit No.655 of 2003 under Section 41 of the Act of 1882 on 9th April, 2009 was not binding upon him and was void ab initio. An injunction was sought restraining the Respondent Nos.2 and 3 from executing the order passed in the application filed under Section 41 of the Act of 1882.
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An application was filed under Section 47 of the Act of 1882 by the appellant, praying for a stay of the proceedings in SCC Suit No.655 of 2003 till the title suit filed before the City Civil Court was decided. The application was allowed by the Small Cause Court on 28th July, 2009. Respondent Nos.2 and 3, being aggrieved by that order, approached this Court by preferring revision application being C.O. No.3025 of 2009. On 19th November, 2010 a learned single Judge of this Court set aside the order passed by the Small Cause Court on 4th August, 2009 by which the proceedings under Section 41 of the Act of 1882 had been stayed. The learned single Judge held that the pendency of the title suit before the City Civil Court would not impede the progress of the proceedings in SCC Suit No.655 of 2003 in view of Section 49 of the Act of 1882. That order of the learned single Judge has attained finality as it has not been challenged...
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