Shyamal Auddy & Ors. vs Asit Kumar Haldar

Arindam Sinha, J

Mr. Ghosal, learned advocate appears on behalf of appellants and submits, the trial and lower appellate Courts concurrently held against his clients for being evicted by applying section 2(g) in West Bengal Premises Tenancy Act, 1997. He submits, his clients' father was original tenant. He died in year 1989, when the 1997 Act was not there. Their mother then became tenant. She died in year 2005. Under clause (h) in section 2 of West Bengal Premises Tenancy Act, 1956, his clients, having had resided with their father in the demise, inherited the tenancy alongwith their since deceased mother. A question of law arises on whether such heritable right could be taken away by operation of change in the law.

He submits further, another question of law arises. This is on the factual premise. Even after the period of 5 years upon commencement of the 1997 Act had been applied, thereafter plaintiff participated in the proceeding in suit, under section 7 of the later Act, regarding, inter alia, payment of rent, wherein he admitted appellants were his tenants. That made his clients tenants under the 1997 Act. He relies on order dated 11th November, 2019 made by a coordinate Bench in SAT 306 of 2019 (Avijit Mukhopadhyay vs. Ashis Kumar Bose), the paragraph therefrom reproduced below.

"As far as the ground under section 2(g) of the Act of 1997 is concerned, it appears that in course of proceedings under Section 7(2) of the said Act, the plaintiff admitted that the defendant was a tenant. Once such admission was on record, it was no longer open to the plaintiff to urge the ground under Section 2(g) of the said Act."

Section 45 in the 1997 Act is the provision on repeal and savings. Appellants' right claimed to be inherited under the old Act, was not saved under the new Act. Instead the heritable aspect of tenancy stood curtailed by the new Act. Both Courts below found that appellants cannot seek protection after death of original tenant, having been tenants only upto the period limited and expired. So, the period of five years from date of coming into effect of the new Act was applied and eviction decreed in favour of plaintiff. Said Act being one that protects tenancies and in force, was applied to deal with the suit and no question of law arises thereby.

Section 7 proceeding in the suit was an interlocutory proceeding. The purpose was to ascertain the facts and circumstances relating to arrears and payment of rent with reference to the landlord's grounds for eviction of appellants, as his tenants, under section 6 of the 1997 Act. Even then the issues in suit regarding eviction, on any of the grounds, including default, could not be subject matter up for adjudication in the proceeding. Upon the determination, if the tenant satisfies the requirement in sub-section (4) of section 7, then, subject to the proviso, in the suit there would be no order for eviction on ground of default. The other protection available is the right to defence on payment, pursuant to, as aforesaid, determination in the proceeding. On pain of repetition it must be said that section 7 does not refer to meaning of tenant under section 2(g) but to when a tenant can get protection against eviction in a suit on any of the grounds in section 6. Applicability or operation of section 2(g) can by no stretch of imagination be a controversy to be decided in the section 7 proceeding. As such, plaintiffs' participation in the proceeding, in opposing it or otherwise, cannot be seen to be admission made by him as proof of acceptance of appellants as tenants against operation of section 2(g). That would then be decision in the suit at the interlocutory stage, implying creation of new tenancy. Avijit Mukhopadhyay (supra) was order passed at admission stage of the second appeal tender. The appeal was not admitted. We don't see the same as gives rise to a substantial question involved in this appeal.

There is no question that arises for admission of the appeal.

SAT 383 of 2019 along with IA No. CAN 1 of 2019 (Old No. CAN 10722 of 2019) (not found), if any pending, are dismissed.