Soumen Sen, J. - (1.) IN a suit for eviction against the petitioner -defendant on the ground of default, the defendant after receiving summons filed a petition under Section 17(2) and 17(2A) of the West Bengal Premises Tenancy Act in which the defendant denied the relationship of landlord and tenant. In the alternative the defendant submitted that if the Court finds that there is any relationship of landlord and tenant after 1st October, 1967, the defendant should be given an opportunity to deposit the current rent month by month. The plaintiffs filed objection to the said petition. The plaintiffs adduced evidence before the trial Court and produced counterfoil of rent receipts as late as May, 1997 in respect of the tenanted portion of the suit premises and produced counterfoil of rent receipt dated 1st June, 1997. On the basis of such evidence, the petitioner contended that the defendant -petitioner did not pay monthly rent since June, 1997 in respect of both the tenancies. The defendant -petitioner did not cross -examine the plaintiffs. The defendant -petitioner in the petition under Section 17(2) and 17(2A) of the said Act contended that the defendant is not a tenant under the plaintiffs since October, 1967 in view of the fact that the room in occupation in the ground floor was initially let out to the defendant at a monthly rent of Rs.250/ - and the said room was constructed by the defendant's predecessor -in -interest with the consent or knowledge of the plaintiffs and/or their respective predecessors -in -interest and after a lapse of time the plaintiffs and/or their predecessors -in -interest had consented to construction of the first floor over the leased out area at the cost of the defendant and upon deposit of rent at Rs.375/ - per month. The defendant contended that the defendant being recognised as a monthly tenant with the consent of other legal heirs as far back in the year 1983 -84 was regularly paying rent to the plaintiff till the month of May, 1997 but upon receiving the letter in the later part of June, 1997 from the office of the BLLRO, Kulti intimating that the said property is a khas mahal land and faced with compensation notice from the said Authority for unauthorised occupation stopped making payment of rent to the plaintiffs since the plaintiffs have lost all interests in respect of the said land. It was on this plea that the defendant refused to tender rent and denied existence of landlord and tenant relationship. The factum of such notice was denied by the plaintiffs in paragraph '8' to the written statement filed in the said proceeding by the plaintiffs. The initial onus was on the petitioner to establish that consequent upon such notice, there is no existence of landlord and tenant relationship and in that event the petitioner has no obligation to pay any rent to the plaintiffs. Curiously the petitioner did not adduce any evidence nor the witness of the plaintiffs was confronted with any such document. In fact the witness of the plaintiffs was not cross -examined. It was on this factual aspect the trial Judge accepted the case made out in the application for payment of arrears of rent and allowed the said application by directing the defendant to pay arrears rent along with statutory interest by instalments. The petitioner being aggrieved by the said order filed this revisional application.
(2.) IN view of the facts narrated above, in my view, it is too late in the day to make any submission that the trial Judge ought to have decided the relationship of landlord and tenant while adjudicating the said application filed by the petitioner questioning such relationship. The burden of proof is on the tenant to establish that consequent upon such notice, there is no obligation on the part of the tenant to make payment of any rent to the plaintiffs. The petitioner did not invite any issue to be framed consequent upon the said notice excepting the mentioning of it in the body of the petition. The witness of the plaintiffs was not cross -examined. It appears that there is no real challenge thrown to the relationship of landlord and tenant excepting in making an averment in the said petition although it was open for the petitioner to adduce such evidence on the basis of such documents, but the petitioner declined to do so and in absence of such evidence, it cannot be said that the trial Judge has committed any error in deciding the application under Section 17(2) of the said Act. It is submitted on behalf of the petitioner that if such dispute is raised, the same is required to be decided by framing an issue to that effect. The contention that the said issue with regard to the relationship of landlord and tenant must be heard out and decided along with the petition under Sections 17(2) and 17(2)(A)(b) of the West Bengal Premises Tenancy Act is based on the judgment delivered by a learned single Judge in the case of Sri Manik Lal Sett & Anr. Vs. Smt. Hira Basu @ Surali Basu & Ors. reported in, (2008) 2 CLJ 675. In the said decision it appears that the tenant had taken a plea that consequent upon the coming into operation of the Thika Tenancy Act, the defendant nos. 1 and 2 became thika tenants under the State of West Bengal and accordingly they have no obligation to make payment of any rent to the plaintiff. The said matter was heard on the basis of evidence both oral and documentary and upon consideration of such materials on record, the trial Judge passed an order holding that the defendant nos. 1 and 2 who were the petitioners are tenants under the plaintiff -opposite party no. 1 in terms of the West Bengal Premises Tenancy Act and in holding so the petitioners were directed to deposit amount of rent found in arrears within a certain period of time. The said order was sought to be resisted on behalf of the petitioner on two fold grounds namely, that the said order was passed upon consideration of the pleadings of the parties and evidence both oral and documentary inasmuch as the mere fact that an issue was not framed which could have been an issue at the trial does not render the order impugned ineffective or infirm. The learned single Judge considering the rival objections considered the question as to whether the order impugned is bad in law because of it not deciding the relevant issue along with the Sections 17(2) and 17(2)(A)(b) of the said Act has to be decided first. After considering the various decisions on this point, it is observed in paragraph '11' that in view of the legal position which emerged from various judgments under the given situation when a decision is rendered under Section 17(2) of the said Act directing the defendant to deposit arrears rent affirming the existence of relationship of landlord and tenant without framing any issue thereon, the question would arise what legal consequences would follow if the order under Section 17(2) or Section 17(2A)(b) of the Act is not complied with by the defendant. The order cannot be basically illegal; it being a tentative nature but in the event of non compliance with the order defence under Section 17(3) of the Act cannot be struck out. It follows, therefore, that such an order becomes infructuous because invocation of the provision of Section 17(3) does not necessarily follow from non -compliance with the order passed under Section 17(2). The relevant observation of the learned Judge is reproduced hereinbelow: ... Thus the position would be that the defendant will be at liberty to adduce evidence both oral and documentary to speak of absence of relationship at the trial with respect to an appropriate issue necessarily to be framed in view of the pleadings of the parties. If at the trial the issue is answered in favour of the defendant, it is one thing; but it is quite another if the issue is answered in favour of the landlord and in the event of the issue being answered in favour of the landlord then the defendant would be insisting on protection under Section 17(4) of the Act by an order to grant instalment to make the arrears of deposit. This would become a cumbersome situation. Thus, an order under Section 17(2) and 17(2A)(b) to be binding upon the defendant the consistent view of this Court has been that the issue must be decided along with the 17(2) application and the decision on that issue would be a final one and such a decision on a single issue would not, as has been held in Mantu Naik (supra) militate against the principle of Order 14 Rules 1 and 2 of the C.P.C. In that view of the matter it is but appropriate that the learned Trial Court decides that 17(2) and 17(2A)(b) application along with the issue to be framed, if not framed earlier. The order impugned does not show that the learned Trial Court has decided the issue after framing one such together with the application under Section 17(2) and 17(2A)(b) of the Act. If the order would have reflected that the issue has also been decided once for all after framing issues then the position would have been in order, regardless of whether the finding of the issue was legally correct or not. Therefore, I am not inclined to go into the merit of the finding in the above circumstance.... At this stage, it is apposite to mention the observation of the Division Bench of this Court presided over by Hon'ble Justice A. M. Bhattacharyya (As His Lordship then was) in the case of Nanda Gopal Das vs. Rabindra Nath De & Anr. Reported in : 92 C.W.N. 1. In the said decision the Division Bench held after considering various decisions on this point that it is not obligatory for the Court at the stage of deciding a proceeding arising out of Section 17(2) to arrive conclusively as to the relationship of landlord and tenant. The relevant observation of the Division Bench is reproduced hereinbelow: 5. The question, however, does not appear to us to be res integra and the position as settled by binding decisions appears to be that finding arrived at by the court only for determining application under the provisions of section 17(2) of the West Bengal Premises Tenancy Act would be a finding for the purpose of that application only and such finding, by itself, would not form the basis of the final decision in the suit relating to default. The observations of Das Gupta, J., (as his Lordship then was) in the Division Bench decision of this court in Ashalata Mitra v. A.D. Viz ( : 59 C.W.N. 692 at 694) and those of P.N. Mukherjee, J. in a latter Division Bench decision in Aloke Ghosh v. Inspector General ( : 66 C.W.N. 302 at 303) appear to be clear authorities for this proposition. In Ashalata Mitra (supra), while considering the corresponding provisions of section 14(4) of the preceding West Bengal Premises Rent Control Act of 1950, it was clearly ruled that decision arrived at under an application thereunder was a decision only "for the purpose of the application" but "that decision never takes the place of the final decision of the suit". After pointing out that on such an application under section 14(4) of the preceding Act of 1950 the question as to whether the tenant made defaults in the payment of rent was required to be decided, the Division Bench proceeded to observe as hereunder: The fact that the question whether the defendant -tenant was in arrears has to be decided for the proper decision of the suit itself, is no reason for not deciding such a matter for the purpose of the application also. It often happens that in dealing with applications for temporary injunctions pending disposal of suits, the Court has to come to a decision, for the purpose of deciding such an application whether a prima facie case exists or not. That decision never takes the place of the final decision of the suit. The fact that decision has to be made of the matter finally in the suit, can not be a reason for refusing to consider the matter at an earlier stage, if and when this is necessary for the proper decision of an application. 6. These observations apparently go the full length to rule that decision as to whether a ground of ejectment was established was to be made finally at the trial, notwithstanding its earlier determination for the purpose of an application under Section 14(4), even though the provisions thereof required such determination and, therefore, according to that ratio, the findings arrived at by the learned Judge as to the default made by the tenant -appellant while deciding the application under Section 17(2) & (2A), if made for the purpose of that application only, could not, by itself, take the place or form the basis of the finding relating to default finally in the suit. 7. The later Division Bench decision in Aloke Ghose v. Inspector General (supra, : 66 CWN 302), was, however, decided under the provisions of Section 17 of the Present Act of 1956 and in that case, P.N. Mookherjee, J., speaking for the Division Bench, observed as hereunder : - Application under Section 17 of the above Act are meant to be disposed of at a preliminary stage of the suit .... Even if it involves consideration of a very material defence to the suit, that is not necessarily a ground for deferring the hearing of the application until the hearing of the suit. It may be that the Court, at the stage of Section 17(3) application, will decide the above question, which forms a material issue in the suit itself, only prima facie and for the purposes of the said proceedings, leaving it open for a final decision at the time of hearings of the suit. It may be also be that the Court may take up the issue upon that question along with the application under Section 17(3) and decide the two together fully, so that the decision on that issue will be final for purposes of the suit also. 8. These observations are, therefore, again a clear authority for the proposition that ordinarily findings arrived at only to decide an application even in respect of any main Issue in the suit are "prima facie" findings "for the purposes of the said proceeding" and the main Issue, even if otherwise determined in the said proceeding, would still thereafter remain "open for a final decision at the time of hearing of the suit". But it must, however, be noted that, as pointed out therein, if the Court also takes up the relevant Issue for determination along with the hearing of the application under Section 17, and decides fully both the Issue and the application together, then the decision on that Issue would be final for the purpose of the suit also. The position, therefore, in that is view of the ratio in the Division Bench decisions in Ashalata Mitra (supra) and in Aloke Ghose (supra) we would have to hold that the determination in respect of default and arrears of rent under an application under Section 17(2) would ordinarily be final for the purpose of that application only, and not for the purpose of the main trial unless the Issue relating to default in the suit and the application under Section 17 are heard and decided together.
(3.) IN this case it is to be noticed that although it was open for the petitioner to adduce evidence in support of its contention made in paragraph 8 of the application filed under Sections 17(2) and 17(2A) of the West Bengal Premises Tenancy Act, the petitioner did not lead evidence nor the witnesses of the plaintiffs were confronted. In that context, it cannot be said that the direction passed by the trial Judge in directing the deposits of arrears of rent suffers from any infirmity. The learned Judge on the basis of the evidence directed the tenant to deposit the arrears rent. Even from a bare perusal of the petition filed under Sections 17(2) and 17(2A) it would be seen that initially the creation of tenancy is not disputed but the objection was raised on the basis of a consent being given by the other heirs of his predecessors and a subsequent notice being issued by the Government of West Bengal. As observed earlier the burden of proof is on the petitioner and the petitioner although had the opportunity to lead such evidence but declined to do so during cross examination. At this stage the petitioner cannot complain that the trial Judge has acted irregularly or improperly in directing the deposit of arrears of rent. It is needless to mention that the payment of rent would not conclusively decide the relationship of landlord and tenant and the same would be decided at appropriate stage at the time of disposal of the suit.;