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Judgment
Biswajit Basu, J
The revisional application under Article 227 of the Constitution of India is at the instance of the defendant in a suit for ejectment and is directed against Order No. 104 dated September 3, 2019 passed by the 1st Court of the learned Civil Judge (Junior Division), at Howrah in Title Suit No. 85 of 2005 whereby the learned Trial Judge has disposed of an application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997(hereinafter referred to as the 'said Act' in short) holding that the petitioner is defaulter in payment of rent since the month of December 1996 at the admitted rate of rent at Rs.4,657/- per month.
Mr. Prabal Kumar Mukherjee, learned senior advocate appearing on behalf of the petitioner submits that the tenant was compelled to pay a sum of Rs.2,17,800/-towards arrear municipal taxes of the suit property without any liability to make such payment as such the tenant in the application under Section 7(2) of the said Act prayed adjustment of the said amount against the arrear rent if any found payable but the learned Trial Judge without considering the said aspect of the matter has disposed of the application under Section 7(2) of the said Act.
Mr. Jiban Ratan Chatterjee, learned senior advocate appearing on behalf of the plaintiff/opposite party submits that the tenant is liable to pay occupiers share of the municipal tax of the suit premises in addition to the rent. The tenant, therefore, according to him is not entitled to any credit for paying such municipal taxes and for the said reason the learned Trial Judge did not feel it necessary to deal with the said plea of the tenant.
Heard learned advocate for the parties, perused the materials on record.
The tenant in the application under Section 7(2) of the said Act has claimed that due to the failure of the plaintiff company to pay the municipal taxes, the suit property was put into public auction and the tenant under such a compelling situation had to pay a sum of Rs. 2,17,800/- towards arrear municipal taxes of the suit property although not liable to pay the said amount.
The tenant on the basis of the said allegation claimed adjustment of the said amount against the rent of the suit property.
The plaintiff in it's written objection to the said application has claimed that the said amount was not paid by the tenant towards arrear municipal taxes of the suit property but towards the occupiers share of the municipal tax in respect of the suit property which the tenant is liable to pay.
Therefore, from the claim and counterclaim of the parties to the suit the liability of the tenant to pay the municipal taxes of the suit property becomes a vital issue requires to be determined in the application under Section 7(2) of the said Act.
On perusal of the order impugned it appears that the learned Trial Judge has disposed of the said application without addressing the said issue. The application, therefore, requires fresh hearing.
Accordingly the order impugned is set aside with a direction to the learned Trial Judge to decide the application under Section 7(2) of the said Act afresh in the light of the observations made hereinabove.
It is made clear that this Court has not gone the merit of the said claim and counterclaim of the parties, it is for the learned Trial Judge to decide the same.
The learned Trial Judge is requested to dispose of the said application expeditiously.
C.O. 4201 of 2019 is thus disposed of.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.