D. Datta, J. - (1.) The petitioners initiated proceedings under Sec. 6 of the West Bengal Premises Tenancy Act, 1997 (hereafter the WBPT Act) before the learned Judge, 5th Bench, Court of Small Causes at Calcutta on December 8, 2004 for recovery of possession of the premises in question from the respondent No. 1, being the defendant therein. The petitioners' claim was allowed and order for recovery of possession was passed on May 15, 2006. Proceedings travelled upto the Supreme Court. The order for recovery of possession survived with certain modifications whereafter it was put into execution. By order dated March 17, 2009, the learned Judge dismissed the execution case relying on the decision of a learned Single Judge of this Court in Tapas Biswas v/s. Shyama Prosad Ghoshal : 2009 (1) CHN 183. The learned Judge held as follows: Since the Hon'ble High Court held that Presidency Small Causes Court has no jurisdiction and the decree passed by the Presidency Small Causes Court, Calcutta after the amendment of 2005 is nullity, this Court has no jurisdiction to proceed with the instant execution case any further because the court cannot execute a decree which is a nullity. As this Court has no jurisdiction to try the eviction suit under West Bengal Premises Tenancy Act, 1997, this Court has also no jurisdiction to execute the decree passed under the said Act due to inherent lack of jurisdiction. Hence, it is Ordered That the instant petition filed by the Jdr is hereby allowed on contest but without cost. The instant execution case shall not proceed any further. The decree holder/plaintiff is at liberty to make proper application in the original suit for return of the plaint. Judge 5th Bench
(2.) This order is the subject matter of challenge in this writ petition dated April 1, 2009 wherein the petitioners have prayed for the following relief: a) A declaration that Presidency Small Causes Court at Calcutta has and had, a jurisdiction to hear the Ejectment Suit No. 28 1 of 2004(E) and all proceeding arising there from; b) A declaration be given for hearing of Ejectment Execution Case No. 193 of 2006 arising out of Ejectment Suit No. 28 1 of 2004 (E) on merit; c) A writ of and/or in the nature of certiorari, do issue calling upon the Respondent No. 5 to forthwith transmit to this Hon'ble Court all records relating to Ejectment Suit No. 281 of 2004 (E) and Ejectment Execution Case No. 193 of 2006 so that conscionable justice may be dune by quashing and/or set aside the order No. 48 dated 17.3.2009, passed by the Learned Judge, 5th Bench, Presidency Small Causes Court at Calcutta in Ejectment Execution Case No. 1 93 of 2006, arising out of Ejectment Suit No. 281 of 2004 (E).
(3.) It appears that the writ petition was considered on a number of days between May 4, 2009 and October 23, 2009 by a learned Judge of this Court. In view of the importance of the issue involved herein, Mr. Balai Chandra Ray, the learned Advocate General for the State was requested to assist the Court.;