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Judgment
Hiranmay Bhattacharyya, J.:-
This application under Section 227 of the Constitution of India is at the instance of the defendant and is directed against a judgment and order being no. 15 dated 09.02.2026 passed by the learned Judge, 3rd Bench, Presidency Small Causes Court at Calcutta in Ejectment Suit no. 145 of 2024.
By the order impugned the application under Section 7(3) of the West Bengal Premises Tenancy Act, 1997 stood allowed on contest and the defence of the petitioner against delivery of possession was struck off.
The opposite parties herein filed a suit for eviction on the grounds contemplated under Section 6(1) of the West Bengal Premises Tenancy Act, 1997 against the petitioner herein which is registered as Ejectment Suit no. 145 of 2024. The opposite parties alleged in the plaint that the petitioner is a defaulter in payment of rent since October, 2023. Petitioner entered appearance in the said suit but did not file any application under Section 7(1) and Section 7(2) of the West Bengal Premises Tenancy Act, 1997.
Petitioner is contesting the said suit by filing a written statement denying the material allegations contained therein.
Alleging that the petitioner has not complied with the provisions of Section 7 of the West Bengal Premises Tenancy Act, 1997, the opposite parties filed an application under Section 7(3) of the West Bengal Premises Tenancy Act. Petitioner contested the said application by filing a written objection.
The learned Trial Judge allowed the application under Section 7(3) of the West Bengal Premises Tenancy Act, 1997 (for short “the 1997 Act”) on the ground that the petitioner is a defaulter from October, 2023 and has not complied with the provisions of Section 7 of the 1997 Act.
Being aggrieved, the defendant has approached this Court.
Mr. Banerjee, learned Advocate appearing for the petitioner submitted that the petitioner has disputed the landlord-tenant relationship between the parties. He submitted that when such a dispute has been raised by filing a written objection to an application under Section 7(3) of the 1997 Act, the learned Trial Judge ought to have decided the dispute as to the landlord-tenant relationship between the parties before striking out the defence against delivery of possession. He submitted that since the petitioner did not admit the landlord-tenant relationship between the parties, petitioner was not under a statutory obligation to comply with the provisions under Section 7(1) and Section 7(2) of the 1997 Act.
Mr. Banerjee, the learned Advocate for the petitioner placed reliance upon the decision of the Hon’ble Division Bench in the case of Synthetic Plywood Industries (P) Ltd. vs. Smt. Manjulika Bhaduri & Others reported at (1998) 1 CHN 387 and the decision of a co-ordinate bench in Sri Manik Lal Sett and another vs. Smt. Hira Basu @ Surali Basu & Ors. reported at (2008) 2 CLJ 675 in support of his contention that if any dispute is raised as to the relationship of landlord and tenant between the parties such issue is to be decided before striking out the defence.
Mr. Mukherjee learned advocate appearing for the opposite party seriously disputed the submissions of the learned advocate for the petitioner. He contended that the petitioner is a defaulter in payment of rent from the month of October, 2023. He submitted that the petitioner did not deposit the arrears of rent before the learned Trial Judge within the time limit stipulated under Section 7(1) of the 1997 Act. He further submitted that no application under Section 7(2) of the 1997 Act was filed by the petitioner in the manner as specifically provided in the 1997 Act. He contended that since the petitioner failed to deposit the amount as referred to in Subsection (1) or (2) of Section 7 within the time limit specified thereunder, the provisions of Section 7(3) of the 1997 Act automatically stood attracted and the learned Trial Judge was right in striking out the defence against delivery of possession. Mr. Mukherjee submitted that in the written objection to the application under Section 7(3) of the 1997 Act, the petitioner for the first time raised a dispute that there is no landlord-tenant relationship between the parties. He contended that such a dispute is sham and not a bona fide one.
Heard the learned advocates for the parties and perused the materials placed.
It is the specific case of the petitioner in the written objection to the application under Section 7(3) of the 1997 Act that the erstwhile owner Smt. Sheena Panja had shown her interest in selling the property to different tenants in occupation therein. Petitioner accordingly negotiated and Smt. Sheena Panja agreed to sale and the petitioner to purchase his occupied area as per the market price. Smt. Sheena Panja represented to the occupiers of the property that they need not pay any rental or occupational charges to her till the sale is completed in favour of the tenant/occupants including the petitioner. The plaintiff/opposite parties surreptitiously entered into a fraudulent transfer with the said Sheena Panja. Petitioner incurred huge expenses and also advanced substantial sum of money to purchase the suit premises.
Upon a reading of the written objection as a whole it appears to this Court that the petitioner has disputed the landlord-tenant relationship between the opposite parties and himself in respect of the suit property.
After going through the impugned order this Court finds that non-compliance of the provisions of Section 7 of the 1997 Act is the only ground which weighed with the learned trial Judge for striking out the defence against delivery of possession.
The dispute raised by the petitioner as to the landlord-tenant relationship between the parties to the suit in respect of the suit property has not been adjudicated upon by the learned Judge prior to striking out the defence against delivery of possession.
The following issue arises for consideration in the civil revision application.
If a defendant in a suit under Section 6(1) of the 1997 Act raises a dispute as to relationship of landlord and tenant between the parties without filing an application under Section 7(2) of the 1997 Act, whether the Court should decide such issue before striking out the defence under Section 7(3) of the 1997 Act?
More or less identical issues fell for consideration before the co-ordinate benches as well as the Hon’ble Division Bench in suits filed under the West Bengal Premises Tenancy Act, 1956 (for short “the 1956 Act”).
Section 17(3) of the 1956 Act states that if a tenant fails to deposit or pay any amount referred to in subsection (1) or subsection (2) within the time specified therein or within such extended time as may be allowed under Clause (a) of sub-section(2A), or fails to deposit or pay any instalment permitted under Clause (b) of sub-section (2A) within the time fixed therefor, the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit.
Thus, Section 17(3) of the 1956 Act provides for striking out the defence against delivery of possession by the Court.
In Baidyanath Kundu vs. Sm. Jyotshna Rani Karmakar reported at AIR 1972 Cal 443, the co-ordinate bench did not accept the contention that a dispute as to existence of landlord-tenant relationship has to be raised only by an application under Section 17(2). On the contrary it was held that the question as to the existence of relationship of landlord and tenant between the parties may be either decided at the stage of Section 17(3) application only prima facie and for the purposes of the proceeding under Section 17(3), leaving it open for a final decision at the time of hearing of the suit, or the Court may take up that question along with the application under Section 17(3) and decide the two together fully so that the decision on that issue will be final for purposes of the suit also. The co-ordinate bench held that if a dispute as to landlord-tenant relationship is raised in an objection to the application under Section 17(3), the Court cannot strike out the defence against delivery of possession without deciding the issue as to existence of relationship of landlord and tenant.
Another co-ordinate bench in Nipendra Nath Chakraborty vs. Brojendra Gopal Sen reported at AIR 1980 Cal 15 held that even on an application under Section 17(3) it is the duty of the Court to decide the issue as to whether there is the relationship of landlord and tenant between the parties, if it is raised.
In Calcutta Bonemills & Fertilisers (P) Ltd. vs. Das Organochem (P) Ltd. reported at (2013) SCC Online Cal 4147 a co-ordinate bench reiterated the proposition of law that even if a defendant/tenant has not filed an application under Section 17(2) of the Act, he can certainly raise such issue as to existence of relationship of landlord and tenant under Section 17(3) of the 1956 Act and the Court is obliged to determine the same before passing an order striking out the defence of the tenant.
The Hon’ble Division Bench in Synthetic Plywood Industries (P) Ltd. (supra), after noting that Section 17 speaks of the obligations of a tenant and not a defendant held that if a defendant asserts that he is not a tenant at all under the plaintiff, he is however, under no obligation to file an application under Section 17(2) of the 1956 Act. But for non-filing of such an application, a plaintiff may very well come up with an application under Section 17(3) of the Act for striking out the defence of the defendant on the ground of non-compliance with the provisions contained in Sections 17(1) and 17(2) of the Act. The Hon’ble Division Bench reiterated the consistent view of this Court that if any dispute is raised by a defendant that he is not a tenant under the plaintiff even without filing an application under Section 17(2) of the 1956 Act, the Court must decide that issue before striking out his defence on the ground of non-compliance of Section 17(1) or 17(2).
In Manik Lal Sett (supra) the co-ordinate bench reiterated the proposition of law laid down by the Hon’ble Division Bench in Synthetic Plywood Industries (supra).
From the aforesaid discussion it follows that if a dispute as to existence of landlord-tenant relationship is raised by a tenant in an eviction suit filed under the provisions of the 1956 Act, the Court is duty bound to decide that issue before striking out the defence against delivery of possession under Section 17(3) on the ground of non-compliance of Section 17(1) or 17(2).
An issue fell for consideration before the Hon’ble Division Bench in Syed Khawaja Moin and another vs. Md. Safi Alam reported at 2025 SCC Online Cal 7031 as to whether the proposition of law laid down in Synthetic Plywood Industries (supra) would be applicable to a suit for eviction instituted under Section 6 of the 1997 Act, as the 1997 Act makes compliance under Section 7(1) and Section 7(2) mandatory. The Hon’ble Division Bench held that if the defendant takes a stand that he is not a tenant under the 1997 Act at all, the Court is under an obligation to decide the issue of landlord-tenant relationship prior to striking out the defence of the defendant. The Hon’ble Division Bench further noted that such aspect neither fell for consideration nor was decided by the Hon’ble Supreme Court in Seventh Day Adventist Senior Secondary School vs. Ismat Ahmed and others reported at 2025 SCC Online SC 1696. The Hon’ble Division Bench held thus-
“39.However, even proceeding on such premise, the cardinal basis of the judgment rendered by the Division Bench in Synthetic Plywood Industries (P) Ltd. (supra)8 did not change by the amendment of statute. Just as in Section 17 of the 1956 Act, in Section 7 of the 1997 Act as well, the language used is “tenant” and not “defendant”. On such premise, the Division Bench held in Synthetic Plywood Industries (P) Ltd. (supra) that if a ‘defendant’ takes a stand disputing the landlord-tenant relationship itself, he is not obliged to make the deposit or file an application under Section 17(1) or Section 17(2), since under the said Section, it is only a ‘tenant’, and not a ‘defendant’, who is to make such deposit. The position would have been otherwise if the language used in the Section was “defendant”, in which case, there would be no option for the defendant not to make the applications or make the deposits.
40.On such score, which was the very basis of the Division Bench judgment, the language of Sections 17 of the earlier statute and that of Section 7 of the current statute do not differ, since both use the expression “tenant” and not “defendant”. If a defendant takes a stand, under either the 1956 Act or the 1997 Act, that he is not a “tenant” at all under the plaintiff, it is open to him to take the risk of not filing even an application under Section 7(2) of the 1997 Act or Section 17(2) of the 1956 Act, but simply raise the dispute as to landlord-tenant relationship. In such case, both as per Synthetic Plywood Industries (P) Ltd. (supra)9 and M/s. Calcutta Bonemiles & Fertilisers (P) Ltd. (supra)10, it would be the incumbent obligation of the court, before striking out the defence, to decide the landlord-tenant relationship prior to such striking out of defence. It has to be kept in mind that although the 1997 Act would govern the inter se relationship between the Thika tenant and the Bharatia, there is a qualitative difference between a “landlord” and “tenant” under the 1997 Act and a “Thika tenant” and a “Bharatia” under the 2001 Act, since in the two cases, the forum deciding the eviction suit would be different.
41.Section 7(3) of the 1997 Act also uses the language “tenant”, on whose failure to comply with sub-sections (1) or (2) of Section 7, the rigour of Section 7(3) would follow and the defence against delivery of possession would be struck out. However, if the defendant takes a stand that he is not a “tenant” under the 1997 Act at all and such objection is upheld by the court, the penalty of striking out of the defence would not follow as well. This makes it mandatory for the court, even at the stage of passing an order under Section 7(3), to decide the issue of landlord-tenant relationship prior to striking out the defence of the defendant. Such aspect neither fell for consideration nor was decided by the Supreme Court in the judgment of Seventh Day Adventist Senior Secondary School (supra).” (emphasis supplied)
In the light of the aforesaid discussion, this Court holds that if the defendant raises a dispute as to existence of landlord-tenant relationship between the parties under the 1997 Act even at the stage of passing an order under Section 7(3) of the 1997 Act, it is mandatory for the Court to decide the issue of landlord-tenant relationship prior to striking out the defence against delivery of possession. If the defendant asserts that he is not a tenant under the plaintiff, he is under no obligation to comply with the provisions of Section 7(1) or 7(2).
Now turning back to the facts on hand, the petitioner has taken a specific stand that he is not a tenant under the opposite parties under the provisions of the 1997 Act. In view thereof, it was incumbent upon the learned Trial Judge to decide the issue of landlord-tenant relationship between the parties to the suit prior to striking out the defence against delivery of possession.
As observed hereinbefore that the learned Trial Judge has not decided the dispute of landlord-tenant relationship but has struck out the defence against the delivery of possession only on the ground that there has been non-compliance of the provisions of Section 7(1) and 7(2) of the 1997 Act on the part of the petitioner. This Court holds that the learned trial judge failed to exercise its jurisdiction in not considering the contention of the petitioner and striking out the defence against delivery of possession without deciding the dispute raised by the petitioner.
For all the reasons as aforesaid this Court is inclined to interfere with the impugned order. The impugned order is accordingly set aside. CO No. 1504 of 2026 stands allowed. The application under Section 7(3) of the West Bengal Premises Tenancy Act, 1997 stands restored to the file of the learned Judge, 3rd Bench Presidency Small Causes Court at Calcutta.
The learned Trial Judge is requested to decide the dispute raised by the petitioner in the written objection to the application under Section 7(3) of the 1997 Act after affording an opportunity of hearing to the respective parties and dispose of such application as expeditiously as possible without granting any unnecessary adjournments to either of the parties. Before parting it is, however, made clear that this Court has not entered into the merits of the claim made out by the petitioner in the written objection to the application under Section 7(3) of the 1997 Act and the learned Trial Judge shall be free to decide such application in accordance with law.
Urgent photostat certified copies, if applied for, be supplied to the parties upon compliance of all formalities.