Srilekha Sengupta vs Dipak Chowdhury

Prasenjit Mandal, J.—This application is at the instance of the tenant and is directed against the order dated July 5, 2010 passed by the learned Additional Rent Controller, Calcutta in A.R.C. No. 5 of 1997 (Eviction) thereby allowing an application under Order 6 Rule 17 of the Code of Civil Procedure

The short fact is that the father of the opposite party filed a suit for eviction against the Petitioner and that suit was compromised in 1990 on transfer of the tenancy of the Petitioner from the second floor to the mezzanine floor. The learned Additional Rent Controller delivered a judgment on November 11, 1999 dismissing the application for eviction. Then one revisional application was preferred being C.O. No. 345 of 2000 which was disposed of by Hon''ble Mr. Justice Tapas Kumar Giri (as His Lordship then was) by an order dated September 16, 2008. By the said order, the Hon''ble Mr. Justice Giri remanded the matter to the learned Additional Rent Controller, Calcutta for a fresh decision on the basis of the subsequent facts, as stated in the supplementary affidavit. On that basis, the opposite party/landlord filed an application for amendment of his application which was allowed by the impugned order. Being aggrieved, the tenant has preferred this application.

Now the point for consideration is whether the impugned order should be sustained.

Upon hearing the learned Counsel of both the parties and on perusal of the materials on record, I find that the opposite party instituted the application for eviction u/s 29B of the West Bengal Premises Tenancy Act, 1956. That application was dismissed by the learned Additional Rent Controller, Calcutta. Then the landlord preferred a revisional application which was allowed setting aside the order of dismissal of the application with liberty to incorporate subsequent facts in the application for eviction. Accordingly, the application for amendment of the application was filed which was allowed by the impugned order. Thus, I find that the landlord has incorporate the subsequent facts in the said suit in order to solve the dispute between the parties finally.

Now, the contention of the Petitioner is that though the Hon''ble Court remanded the matter for a fresh decision upon the learned Additional Rent Controller, Calcutta, it was placed before the learned Additional Rent Controller, Alipore. Therefore, the orders passed by the learned Additional Rent Controller, Alipore are not tenable and those should be set aside. In this regard, upon perusal of the materials on record, it appears that the same person functioned as the learned Additional Rent Controller, Calcutta and the learned Additional Rent Controller, Alipore and the stamp of learned Additional Rent Controller, Alipore has been wrongly placed in the order sheet. According to the decision of Gangabai and Others Vs. Ratan Kumar and Others, , the order passed by mistake can be corrected by the same court. Rectification may even be done apart from the Section 151 of the CPC The order need not be a nullity. It is the learned Additional Rent Controller, Calcutta who dealt with the matter but stamp has been wrongly made as learned Additional Rent Controller, Alipore. Therefore, this is not a ground for setting aside the orders passed by the learned Additional Rent Controller, Calcutta.

As regards the merit of the application of the amendment, I find that the proposed amendment has been granted to solve the dispute between the parties once for all and the nature of relief sought for in the original application remains the same, i.e. a proceeding u/s 29B of the West Bengal Premises Tenancy Act, 1956.

Therefore, I am of the view that there is nothing to interfere with the impugned order. This application is, therefore, devoid of merits and it is dismissed.

Considering the circumstances, there will be no order as to costs.

Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.