- (1.)This is an application under S.115 of the Civil P.C. by the defendants against the order dated April 21, 1982 passed by the learned Munsif, 4th Court, Alipore in Title Suit No. 226 of 1980. The opposite party, Smt. Indira Hazra, instituted the suit against the petitioners Jayantilal Chhaganlal Kampani and Hemchand Ramchand Jaitha for ejectment and mesne profits. The case of the opposite party is that the petitioner No. 1 was a tenant under her in respect of the suit premises at a monthly rental of Rs. 240/-. The petitioner No. 1, without the previous consent in writing or otherwise of the opposite party, transferred and assigned the suit premises as a whole or sublet it to the opposite party No. 2. The suit premises are reasonably required for her own occupation. Both the defendants, who are petitioners in the present Rule, contested the suit by filing separate written statements. Both the petitioners also filed separate applications under S.17(2) of the West Bengal premises Tenancy Act (hereinafter referred to as theACct) In his application the petitioner No.2 alleged that he was a tenant under the opposite party; but the rent receipts were being granted the name of the petitioner No. 1, though the petitioner No. 1 had left the suit premises some time in 1968 or 1969. The petitioner No. 2 asked the Court to decide the relationship of landlord and tenant between the petitioner No. 1 and the opposite party and the amount of arrears of rent due to the plaintiff. In his application under S.17(2) of the Act the petitioner No. 1 alleged that he had surrendered the tenancy in favour of the plaintiff and the plaintiff had recognised the defendant No. 2 as tenant, but the rent receipts were being granted in the name of the petitioner No.1. The petitioner No. 1 prayed that the Court would be pleased to decide the dispute regarding the relationship of landlord and tenant between the petitioner No. 1 and the plaintiff and to pass such other order or orders as the Court may deem fit and proper. The learned Munsif after hearing the parties came to the conclusion that the application made by the petitioner No. 2 under S.17(2) of the Act was not maintainable, as the petitioner No. 2 could not show that the rent receipts were granted in his name. As regards the application of petitioner No. 1, the learned Munsif has held that he is still a tenant under the plaintiff. The application filed by the petitioner No. 1 was disposed of on contest and the application filed by the petitioner No. 2 was rejected.
(2.)Being aggrieved, the petitioners have challenged the said order in the present revision case. Mr. Bose, learned Advocate for the petitioners, has confined his arguments only in respect of the application of the petitioner No. 1 under S.17(2) of the Act. Mr. Bose argues that the petitioner No. 1 filed the application under S.17(2) of the Act raising dispute regarding the relationship of landlord and tenant. The learned Munsif after finding that the petitioner No. 1 was a tenant, should have determined the amount of rent payable by the petitioner No. 1. The learned Munsif has thus failed to exercise his jurisdiction and the petitioner No. 1 has been seriously prejudiced thereby. In support of his contention Mr. Bose has referred to the case of Biswanath Roy v. Annapurna Roy, (1961) 65 Cal WN 149 and has argued that the dispute as to the existence of relationship of landlord and tenant between the parties does affect the question of rent payable by a tenant to a particular landlord and as such the same comes within the purview of S.17(2) of the Act.
(3.)Mr. Chatterjee, learned Advocate for the opposite party, has argued that only question raised in the application under S.17(2) of the Act filed by the petitioner No.1 was whether there was relationship of landlord and tenant and the same has been decided by the learned Munsif, Mr. Chatterjee argues that S.17(2) of the Act requires that the tenant within the time specified in sub-sec.(1) shall deposit in Court the amount admitted by him to be due from him together with the application to the Court for determination of rent payable. Unless there is prayer by the defendant for determination of the rent payable, the Court will not suo motu determine the rent payable by the tenant. Mr. Chatterjee has referred to the case of Sohanlal Rajgharia v. Calcutta Chromotype Pvt. Ltd., (1979) 1 Cal LJ 193.