NRIPENDRA KUMAR MITRA Vs. AMIYA DASGUPTA
LAWS(CAL)-1982-6-17
HIGH COURT OF CALCUTTA
Decided on June 25,1982

NRIPENDRA KUMAR MITRA Appellant
VERSUS
AMIYA DASGUPTA Respondents




JUDGEMENT

Pradyot Kumar Banerjee, J. - (1.)In this rule the petitioner challenges an order passed under Section 29-B of the West Bengal Premises Tenancy Act. The case of the petitioner is that the petitioner is a tenant in respect of the flat consisting of two rooms in the ground floor of holding No. 34, Subarban Park Road, Howrah at a rental of Rs. 175/- per month payable according to the English Calendar month. It is alleged that the petitioner was never served with a summon under Section 29-B of the West Bengal Premises Tenancy Act and as such he was in the dark. He appeared before the Rent Controller on 4th March, 1981 and prayed for time to file some documents which was allowed up to I8th March, 1981. On 18th March, 1981 it appears that the petitioner filed written statement but no prayer was made for leave to contest the application under Section 29-B (2) of the West Bengal Premises Tenancy Act. Thereupon the learned Rent Controller passed an order on 23rd March, 1981 allowing the petitioner's application under Section 29-B of the Act and the order was made on the peti-tioner to vacate the premises by 31st March, 1981. Being aggrieved by the said order, the petitioner moved this Court and obtained the present rule.
(2.)The petitioners before the Rent Controller herein are made opposite parties, namely, 1. Sm. Amiya Daspupta, widow of Late Debendra Nath Dasgupta, 2. Shyamal Dasgupta and 3. Salil Dasgupta both sons of Late Debendra Dasgupta, 4. Sm. Pratima Daspupta, widow of Late Sisir Kumar Dasgupta, 5. Debapriya Dasgupta, son and 6. Sm. Debarati Dasgupta is the daughter of Late Sisir Kumar Dasgupta.
(3.)Before I deal with the point raised, it is convenient for me to say that Sisir Kumar Dasgupta died on 28th Oct., 1979 leaving behind his wife, Smt. Pratima Dasgupta, Debapriya Dasgupta, son and Debarati Dasgupta -- daughter and his mother Sm. Amiya Dasgupta as his legal heirs. From the petition, it appears which was filed sometime in 10th Sept., 1980 that a notice was served on the petitioner for vacating the premises along with other co-sharers for the use and occupation of the opposite parties. The said notice was sent by registered post with A/D on 21st May. 1978 but the petitioner did not vacate the premises. In the meantime, on 27th Oct., 1979, Sisir Kumar Dasgupta met with an accident and succumbed to his injury on 28th Oct., 1979. Sisir Kumar Dasgupta at that point of time was a Group Captain in the Air Force and after the accident and accidental death of Sisir Kumar Dasgupta Sm. Pratima Dasgupta and her minor son and daughter were allowed to continue to stay in the said accommodation of Delhi up to 30th April, 1981. The Brigadier Commandar, Calcutta, certified on 3rd Nov., 1980 that Pratima Dasgupta along with her minor son, Debapriya Dasgupta and daughter Kumari Debarati Dasgupta are co-owners landlords of the premises No. 34, Subarban Park Road and requires the premises for their own use and occupation. As I have already said that the application was filed on 10th Sept., 1980, the petitioner under Section 29-B of the West Bengal Premises Tenancy Act appeared on 17th Nov., 1980 but no certificate as required was produced on the date of filing of the said application. By order dated 10th Sept., 1980 the petitioner under Section 29-B was allowed to produce the same on 17th Nov., 1980. The petitioner opposite party filed the certificate under Section 29-B of the Act being dated 3rd Nov., 1980 along with other papers. After the certificate was filed, notice was sought to be served on the opposite party. Though notice could not be served, the petitioner applied for service on the opposite party afresh on the office address fixing 4th March. 1981. On that date the petitioner appeared before the Court but no application was made for leave to contest the proceeding as is incumbent under Section 29-B (4) of the Act. Thereupon an argument was advanced on 18th March. 1980 without praying for leave to contest the application about the maintainability of the petition. The learned Rent Controller held that as no leave has been obtained, he cannot be allowed to contest the proceeding. On 29th March, 1981 an order was made in favour of the opposite parties. Hence the present application under Article 227 of the Constitution of India.


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