Ahmed and Others vs Captive Marketing and Services Limited

Ashis Kumar Chakraborty, J.—This is an application for review of an order dated January 10, 2014 passed by a learned single Judge of this court, who has since retired, in CO No. 1657 of 2012 under Article 227 of the Constitution of India against Order No. 18 dated April 11, 2012 passed by the learned Judge, 5th Bench, Presidency Small Causes Court at Calcutta in Ejectment Suit No. 209 of 2008.

By the said order dated April 11, 2012 the learned Judge, 5th Bench, Small Causes Court rejected an application filed by the petitioners/defendants in the said ejectment suit praying for an order directing the opposite party/plaintiff to restore supply of electricity to the suit premises.

In the plaint filed in the said eviction suit, the opposite party/plaintiff stated that the tenancy of the defendants/petitioners is in respect of the suit property was for commercial purpose and one of the grounds for eviction was that the defendants/petitioners have kept the suit premises under lock and key for 15 years which is a ground of eviction stated in section 6(1) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as "the said 1997 Act").

By the said order dated April 11, 2012 the learned Judge, 5th of the Small Causes Court rejected the said application of the defendants/petitioners by stating that the plaintiff has filed the suit against the defendants on one of the grounds that the defendants kept the suit premises under lock and key for the last 15/20 years and left the suit premises. In the said impugned order dated April 11, 2012 it was recorded that the suit premises was used by the defendants for commercial purpose. It was held that if the petition under section 151 CPC filed by the plaintiff/opposite party was allowed, then it would cause prejudice to the plaintiff/opposite party where the plaintiff/opposite party already accrued a statutory right.

The petitioners filed the revisional application challenging the order dated April 11, 2012 passed by the learned Judge of Small Causes Court. One of the grounds stated in the revisional application was that the grounds mentioned in section 6(1) of the 1997 Act does not apply to tenancy for non-residential purposes only.

By the order dated January 10, 2014 the learned single Judge dismissed the said revisional application on the ground that it is a specific case of the plaintiff/opposite party that the suit for eviction is on the grounds, inter alia, that the defendants have kept the said premises under lock and key for the last 15 years as the defendants had already stopped doing business at the suit premises, the defendants have violated the provisions of the 1997 Act and as such they are not entitled to any protection against eviction. According to the learned Judge, since one of the grounds in the eviction suit was stated in section 6(1) of the 1997 Act, the learned trial Judge rightly held that if the application under section 151 CPC filed by the defendants/petitioners is allowed, it would cause prejudice to the plaintiff/opposite party where the plaintiff/opposite party has already accrued a right against the defendants/petitioners under the provisions of the 1997 Act. In this application the defendants/petitioners have prayed for review of this order dated January 10, 2014.

Mr. Roy Chowdhury, learned senior advocate appearing for the petitioners/defendants has strenuously argued that the said order dated January 10, 2014 passed by this court is vitiated by error of law, which is apparent from record. He has submitted that the ground of eviction as stated in section 6(1) of the 1997 Act is applicable to the tenancy for residential purposes, and that the said ground of eviction is not applicable in respect of the tenancy of the petitioners as the tenancy in respect of the suit property is for commercial purpose.

Mr. Roy Chowdhury placed various paragraphs of the plaint filed in the ejectment suit where it is admitted by the opposite party/plaintiff that the tenancy in respect of the suit property of the petitioners was for commercial purpose and one of the grounds of eviction stated in the plaint the ground provided in section 6(1) of the 1997 Act. He also submitted that from the order, prayed to be reviewed it is also evident that by the said order this court refused to interfere with the order passed by the court below on the ground that the opposite party/plaintiff has filed the suit for eviction on one of the grounds stated in section 6(1) of the said 1997 Act as they have kept the suit property under lock and key for the last 15 years and have stopped doing business at the suit property.

In support of his contention for review of the order dated January 10, 2014 Mr. Roy Chowdhury placed reliance on the decision of the Supreme Court in the case of M.K. Venkatachalam, I.T.O. and Another Vs. Bombay Dyeing and Mfg. Co., Ltd., AIR 1958 SC 875 : (1958) 34 ITR 143 : (1959) 1 SCR 703 where it was held that a mistake of law which is glaring and obvious in an order passed by a court can be reviewed by the same court.

He has also relied on a decision of the Supreme Court in the case of M.M. Thomas Vs. State of Kerala and Another, AIR 2000 SC 540 : (2000) 1 JT 26 : (2000) 1 SCALE 14 : (2000) 1 SCC 666 : (2000) 1 SCR 33 : (2000) AIRSCW 73 : (2000) 1 Supreme 1 where the Supreme Court held that the High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law and if any apparent error is noticed by the High Court in respect of any order passed by it, the High Court has not only the power, but a duty to correct it.

Apart from the aforesaid decisions of the Supreme Court, Mr. Roy Chowdhury also relied on a decision of a single Judge of this court in the case of Somnath Mukherjee Vs. Mamata Rani Saha, (2006) 3 CHN 213 wherein it was held that in view of the provisions contained in sections 27 and 35 of the 1997 Act a tenant has an absolute right to obtain essential supply and services to his tenanted property which includes the right to obtain supply of electricity.

However, Mr. Routh appearing for the opposite party/plaintiff raised objection with regard to the maintainability of the review application. Apart from pointing out that the petitioners have not filed any memorandum of review as required under the provisions contained in Order 47, Rule 3 CPC, he also submitted that even if the contention raised by Mr. Roy Chowdhury is accepted in this case, the said order dated January 10, 2014 can, at best, be described as an erroneous order and an erroneous order cannot be a subject matter of review under Order XLVII of the Code of Civil Procedure, 1908.

I have considered the submissions made by Mr. Roy Chowdhury and Mr. Routh. It is well settled principle of law that an order passed by a court can be the subject matter of review under Order XLVII of CPC, if the order is vitiated by an error which is evident par se from the record of the case and does not require any detail examination, scrutiny and elucidation either on facts or legal proposition. It is trite that an order can be held to be vitiated by an error apparent on the face of the record when it is self-evident and does not require an elaborate argument to establish any illegality of the said order.

The ground for eviction under section 6(1)(l) of the said 1997 Act is provided below:

"(1) Where the tenant, or his spouse, or son, or daughter, or parent, or the widow of his predeceased son, who is dependent on him, does not reside in the premises ten months and keeps the premises under lock and key."

From a reading of section 6(1) of the said 1997 Act it is evident that ground of eviction stated therein is not applicable in respect of a monthly tenancy for non-residential purpose.

By the order dated January 10, 2014, which is under review, it is evident that the said order has been passed after recording that the tenancy of the defendants/petitioners in respect of a suit property was for commercial purpose under the provisions of the said 1997 Act. In spite of such finding when the ground of eviction under section 6(1) of the 1997 Act does not apply to a tenancy in respect of non-residential purposes, the learned Judge committed an ex facie error of law by holding that the ground of eviction under section 6(1) was applicable to the tenancy of the petitioners for non-residential purpose. In view of the settled principles of law stated above and the aforesaid decisions of the Supreme Court cited by Mr. Roy Chowdhury, I am unable to accept the contention of Mr. Routh with regard to the maintainability of the review application. Absence of Ground of Review is too technical a ground for rejection this application, when this review application is otherwise decided on merit.

For all these foregoing reasons, I admit the instant review application and recall the order dated January 10, 2014 passed by this court in CO No. 1657 of 2012.

In view of the reasons, I have set forth for admitting the review application I allow the review application and set aside the order dated April 11, 2012 passed by the learned 5th Judge, Small Causes Court at Calcutta in Ejecment Suit No. 209 of 2008. So far as the application filed by the petitioners/defendants under section 151 CPC praying for an order directing the plaintiff to restore supply of electricity to the said premises is concerned, the same is remanded to the court of the learned Judge, 5th Bench, Small Causes Court at Calcutta. The learned Judge, 5th Bench, Small Causes Court, Calcutta is directed to decide the said application filed by the defendants/petitioners under section 151 CPC afresh and to dispose of the same as expeditiously as possible, preferably within three months from the date of communication of this order.

It is made clear that I have not gone into the merits of the application filed by the defendants/petitioners under section 151 CPC, and that the learned court below shall decide the said application without being uninfluenced by observation, if any, made in this order strictly in accordance with law.

With the aforesaid direction, the review application is disposed of. There will be no order as to costs.

Urgent certified xerox of this order, if applied for, shall be given to the parties.