SWAPAN KUMAR BHADRA Vs. ANIRUDDHA GHOSH
HIGH COURT OF CALCUTTA
Swapan Kumar Bhadra
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Sahidullah Munshi, J. -
(1.) This revisional application is directed against order no. 71 dated February 20, 2018 passed by the learned Civil Judge, (Junior Division), 4th Court at Alipore, South 24-Parganas in Ejectment Suit No.207 of 2010, thereby rejecting the defendant/petitioner's application under Section 7(2) read with Section 7(2A) of the West Bengal Premises Tenancy Act, 1997 (hereinafter to be referred to as the 'said Act'), praying for suspension of rent on the ground of non-supply of water into the tenanted premises. The opposite party filed a suit for ejectment being Ejectment Suit No.207 of 2010 against the defendant/petitioner. In the said suit the defendant/petitioner filed an application under Section 7(2) read with Section 7(2A) of the said Act and prayed before the learned Court below to adjudicate and/or determine as to whether there are arrears of rent payable by the defendant and in the event any arrears were found, the defendant might be allowed to recollect the same by easy monthly instalments and also to adjudicate whether defendant is entitled to abatement of rent in the facts and circumstances pleaded before the Court. In the application under Section 7(2) read with Section 7(2A) of the said Act the petitioner made out a case that according to the tenancy agreement, the landlord agreed to supply water to the suit premises but due to mechanical device operated by the landlord, regular normal water supply was disrupted at the instance of the landlord, as a result, the petitioner/defendant had to take water through 'Bhari' at the cost of Rs.350/- per month and, therefore, proportionate amount of rent should be suspended accordingly. To such an application the plaintiff/landlord filed an objection and in paragraph 9 of the said objection the plaintiff has stated that -
"... there was a settlement between the late Mr. Ghosh and defendant that the water supply from the overhead tank will be stopped and the defendant will get direct water supply from the Municipal tap water in the ground floor." The settlement was done in or about 1995 and there was no protest or objection raised by the defendant during the lifetime of the previous landlord, Mr. Ghosh, who died on 11.02.2005. The plaintiff/landlord further stated in paragraph 9 that this objector further denies that there was no sufferings by the defendant related to the water problems as alleged by the defendant on the reason that there was no scarcity of water in the suit property as he was provided direct water supply from the K.M.C. and this system is continuing since 1995-96."
(2.) The defendant/petitioner appeared before the Court and allowed him to be cross-examined by the plaintiff. But the plaintiff did not appear in the box and never gave any opportunity to the defendant to examine him. The learned Judge, on consideration of the documents exhibited in the proceeding and taking into consideration of the evidence on record, observed on the basis of the report of the Advocate Commissioner that the mechanical device had been newly installed on the North-Western portion of the courtyard on the supply line of the K.M.C. water which leads to the underground reservoir. The supply of K.M.C. water is totally controlled by the said stop-clock/device and the same is under direct control and operation of the plaintiff. Learned Court observed that it is the duty of the defendant to prove his own petition and cannot succeed on the weakness of the plaintiff. According to the learned Judge, since it is the case made out by the defendant that he has paid Rs.350/- per month to the 'Bhari', it is the duty of the defendant/petitioner to prove the said fact and unless that is proved, he cannot claim abatement, although, on the evidence and other facts discussed in the impugned judgment the learned Court has accepted that there has been disruption of water supply.
(3.) Learned Advocate appearing on behalf of the defendant/petitioner has relied on the following decisions:
Surendra Nath Bibra - Vs. - Stephen Court Limited reported in AIR 1966 SC 1361 ;
P.K. Koy - Vs. - Sm. Bimala Mukherjee reported in 1976 CHN 666. ;
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