Judgment:
ORDER
B.P. Banerjee, J.
1. This is an appali-cation under Article 227 of the Constitution of India praying for quashing or setting aside the order dtd. 16th January, 1993 passed by the Registrar, Small Cause Court, Calcutta in Suit No. 185 of 1992 and for other reliefs on being dispossessed from the Flat No. 4 now 2D, 2nd Floor, 12B, Russel Street, P,S. Park Street, Calcutta-71 and subsequently filed a supplementary affidavit challenging the validity of the entire proceedings being Suit No. 185 of 1992 alleging the same to be a nullity.
2. The fact of the case in short is that the plaintiff/opposite paty filed a summary proceeding under Section 41 of the Presidency Small Causes Court Act in the Court of the Small Causes, Calcutta against the petitioner/ opposite party for recovery of possession alleging that the petitioner/opposite party was mere licensee under the plaintiff/opposite party in respect of the said suit flat and that the said licence was duly revoked. It was specifically alleged in the said proceeding by the plaintiff/ opposite party that the petitionerwas allowed to occupy the said suit flat as a leave and licensee in December 1976 at a monthly rent of Rs.700/- with effect from January, 1977 on the basis of an agreement for license suppressing the fact that the plaintiff/ opposite party's husband inducted the petitioner as a tenant persuant to an agreement for tenancy dated 10th December, 1976 at a monthly rent of Rs. 1030/- with effect from 1st January, 1977 in respect of the said suit flat. The petitioner was also to pay Rs. 400/- towards maintenance charges and other taxes. Such rent was paid to Sri L. S. Agarwal, husband of the plaintiff/ opposite party since deceased, regularly. The said Lakshmi Sankar Agarwal died on 25th June, 1989. The petitioner by her letter dtd. 21st August, 1989, requested the plaintiff/opposite party to send the names of the legal heirs of the deceased Agarwal to enable her to send the rents at the earliest. By a letter dtd. 5th September, 1989, the platiff/opposite party informed that the names of the legal heirs of the deceased Agarwal. The other co-landlords also by a latter dated 5th September, 1989 authorised the plaintiff/opposite party to realise the rent in respect of the suit flat and to grant rent receipts therefor. It is the case of the petitioner in the petition before us that the petitioner paid rent to the opposite party up to August 1990. The rent for the months of September, 1990 was refused to be accepted by the plaintiff/ opposite party although the same was tendered. The petitioner thereafter started depositing the monthly rent with effect from September, 1990 till December, 1992 in the office of the Rent Controller at Calcutta @ Rs. 1,430/ - per month which was the last rent paid.
3. Thereafter, the opposite party and her sons and daughter who were all the co-owners of the property in question served a notice to quit through their advocate Sri Gurudas Mitra dtd. 9th August, 1990 as per the provisions of Sec. 13(b) of the West Bengal Premises Tenancy Act. 1956. By the said notice dtd. 9th August, 1990, the petitioner was informed that the opposite party and the other co-owner reasonably required the said tenancy premises for their own use andoccupation and for the purpose of use and occupation of their family members and accordingly on behalf of all the co-owners including the plaintiff/opposite party called upon the petitioner to quit, vacate and deliver peaceful possession of the said suit flat in question on the expiry of the month of September, 1990 failing which the relationship between the parties should cease. It is stated that instead of filing a suit of eviction as provided under the provision of W.B.P.T. Act, 1956 the opposite party filed a summery proceeding before the Small Cause Court in suit No. 185 of 1992 alleging that the relationship between the parties was mere leave and licence and that leave and licence was cancelled and accordingly prayed for an order for recovery of Khas possession of the suit property after eviction of the defendant in a summery manner. The Court below passed an order for recovery of possession ex parte and there after through bailiff and with the police help the petitioner was dispossessed forcibly from the flat in question on 15th January, 1993. It is the case of the petitioner that the Small Cause Court had no jurisidiction to pass a decree for eviction and recovery of possession in a summery proceeding when the relationship between the parties was that of landlord and tenant and governed by the provision of the WBPT Act 1956 and when in the instant case admittedly the notice to quit was served as provided under Section 13(6) of the said Act dated 9th August, 1990 by which the petitioner was called upon to qauit and vacate on the expirty of the month of September, 1990. All these thing was deliberately suppressed before the Small Cause Court and that it was alleged before the Court below that the petitioner was a mere licensee.
4. On the basis of the pleadings of the party and on perusal of the documents produced before us, we passed an order on 17th January, 1993 when the matter was specially assigned by the Ld. Cheif Justice to us, an order was passed appearing an Advocate Receiver to take over the possession of the property and to keep the property in his possession until further orders. Thereafter, the records of this case were called for our perusal and the opposite party was directed tofile by the plaintiff/ opposite party, the fact of creating tenancy by and between the parties as stated by the petitioner had not been denied. The tenancy agreement was also not disputed. The notice to quit under Section 13(6) of the WBPT Act was not also denied on the contrary, a case of leave and licence was sought to be made out and that it appears from the lower court records the letter of agreement was produced before the court below in which it was alleged that a licence was granted by the opposite party in favour of the petitioner with effect from 1st Jan. 1977 and the petitioner accepted the position of the licensee and that such licence was revoked by a notice Dt. 3rd March, 1992 by one Mr. S. K. Roy Chowdhury and that the said notice allegedly sent under certificate of posting bears a seal of some Post Office which is illegible and do not appear to be genuine and designedly made as no Court of law can place any reliance on such a piece or paper, the authenticity of which on the face of it is very much doubtful. In any event, in the affidavit in opposition the fact of creation of a tenancy governed by the provisions of the WBPT Act as a monthly tenant with effect from 1st January, 1977 had not specifically denied and/or disputed. The factum of exchange of correspondence between the parties on the death of the husband of Smt. Sarojini Agarwal was not denied or disputed.
4A. Mr. Kapoor, learned counsel appearing on behalf of the petitioner submitted that it is the case where the decree for possesion an order was obtained from the Small Cause Court by practising a fraud upon the Court in as much as that Court had no jurisdiction to pass an order for eviction and recovery of possession in respect from a tenant. That court had only the jurisdiction to pass a summary order for eviction only in case of an leave and licence under Section 41 of that Act and the City Civil Court is the only competent Court in the instant case which had exclusive jurisdiction to entertain and pass an order of eviction in respect of the suit between the landlord and tenant and that too governed by the provisions of the WBPT Act, 1956. In theinstant case the relationship between the landlord and tenant was governed by the provisions of WBPT Act, 1956 was sought to be terminated by a notice to quit dated 9th August, 1990 with effect from 1st October, 1990 and that the ground of eviction was, according to that notice to quit was that the landlord reasonably required the said premises for their own use and occupation. Under the provisions of S. 13(1) of the WBPT Act, 1956 the Court had no jurisdiction to pass an order for eviction unless the Court is satisfied about the existence of the ground for eviction on the basis of the evidence adduced at the trial. It was submitted that in the instant case on the basis of a false case made out before the Court below that the petitioner was a mere licensee and the license had been cancelled, the respondent induced the Court below to pass an order for taking delivery of possession after evicting the petitioner from the possession in a wrongful manner by practising fraud.
5. Mr. M. B. Sarkar, learned cousel for the respondent submitted that after all the respondent had obtained an order from the Small Cause Court and that order may be right or wrong and that the only remedy in such a case is to file a suit as provided under S. 6 of the Specific Relief Act for recovery of possession when the petitioner had been dispossessed by an order of the Court. It was further submitted by Mr. Sarkar that in the proceeding that was filed under Small Cause Court Act. Bailiff went to serve but the defendant refused to accept and that narrates to circumstances under which the Court below had to pass a decree for eviction. With regard to the question whether the petitioner was a tenant or licencee, Mr. Sarcar submitted that after the tenancy was terminated by the notice to quit with effect from 1-10-90 the petitioner voluntarily approached the Landlady and agreed to stay as licensee. This stand is not supported by the case sought to be made out before the Court below. Before the Court below as well as on affidavit it was stated that the petitioner was a licensee in respect of the said flat with effect from 1st January, 1977 and not with effect from 1st, October, 1990. Theoretically it is possible to make out acase that after the relationship between a landlord and tenant was terminated by a notice to quit, the parties may agree to create a lease licensee. But in this case the wholly inconsistent stand was taken. We are not at all impressed with this stand taken by Mr. Sarkar, inasmuch as if the Court could pass any order rightly or wrongly. In the instant case on the basis of the records, documents produced before us, we are fully satisfied beyond doubt that the petitioner was a monthly tenant under the opposite party govered by the provisions of the WBPT Act, 1956 and that proceeding was filed before the Small Cause Court Act was designedly made with an ulterior and unholly motive to obtain an order for possession surreptiously by passing the provisions of law.
6. From the facts disclosed before us it was clear that the petitioner was a monthly tenant under the landlady/opposite party since, 1st January, 1977 on paying a monthly rental of Rs. 1430/-and the said tenancy was terminated with effect from 1-10-90. The landlady/opposite party did not deny these facts on affidavit before this Court. The agreement for tenancy in writing, and the various correspondences between the parties as landlord and tenant including the notice to quit, terminating the tenancy with effect from 1-10-90 was not denied or disputed by the landlady/opposite party, whereas the petitioner tenant had not only denied or disputed the case of license, the tenant had also stated on oath that those documents were all forged and fabricated and had been brought into existence for the purpose of said proceeding before the Small Cause Courts Act with the motive of dispossessing the petitioner in gross abuse of the process of the Court.
7. In this case admittedly after terminating the tenancy by the notice to quit issued in September, 1990, no suit was filed before the City Civil Court as provided under the provisions of the West Bengal Premises Tenant Act, 1956 on the contrary what was done was nothing but fraud and by practising a clear fraud dispossessed the petitioner from the said flat in question with the help of money and manpower. The case of thepetitioner could not at all be defended by the landlady opposite party. In the circumstances of the case it cannot be held that filing of suit is an effective alternative remedy. If any remedy is provided in the particular statute that can be said to be an alternative remedy. But where the allegation is that an order was obtained from the Court below by practising fraud resort to alternative remedy will be destructive to the concept of justice and it would be highly improper to ask the party to avail of other remedy. When the Court finds that a proceeding was null and void.
8. Since this is an application under Art. 227 of the Constitution of India the power of the High Court under Art. 227 is wide enough to call for the records to satisfy us about the legality of the proceeding and that the power of the High Court under Art. 227 cannot be said to be superseded or curtailed by the provisions of the Specific Relief Act. It is a case where the Court below has passed an order for eviction when the Court admittedly had no jurisdiction to pass an order. It is well settled that where the Court below acts illegally and a decree which was obtained is a nullity, the High Court under Art, 227 can set aside such an order. This is glaring incident of wilful violation of law by the opposite party with a designed and ulterior motive. When the decree on the face of it, has a nullity, the possession taken by the bailiff with the Police help on the basis of such a null and void decree must be held to be unlawful.
9. In this case the petitioner after being evicted in such a summary proceeding moved the Small Cause Court for recalling the ex parte order for recovery of possession as well as for appointment of a Receiver. In such proceeding the said Court has no such power to appoint Receiver under O.40 of the Code of Civil Procedure. But in this case it is not necessary to send back the matter to the Court below as the same would be a mere idle formality. When the entire proceeding before the Court below was void and illegal. The question of reopening the issue by the Court below who have no jurisdiction to entertain such proceeding does not and cannot arise.
10. When the petitioner moved this Court in an application under Art, 227 of the Constitution of India, the power of this Court is not restricted to the prayer or the scope of the application. It is well settled principle that power of general superintendence conferred by Art. 227 of the Constitution of India involves a duty on the part of the High Court to keep all Courts within the bounds of their authorities and to see that they do what their duty requires and that they do it in a legal manner. This power under Art. 227 of the Constitution may also be exercised by the High Court suo motu and is not governed by any techinical rules as applicable in case of exercise of power under Art. 226 of the Constitution of India.
11. In the instant case, possession was taken under an order which was a nullity. It is a duty on the part of this Court to put back to the parties in possession from which he was dispossessed wrongfully. There was no valid proceeding and as such the dispossession was on the face of it unlawful. If the order is a nullity consequently taking over possession on the basis of an order which was unauthorised and illegal on the face of it. In order to get an ex parte order attracting the jurisdiction of the Court below, whole thing was designedly made. The licence fee was shown to Rs.700/- for the purpose of jurisdiction of Small Cause Court under the Small Cause Courts Act. In case of leave and license if the amount was higher than Rs. 700/- in that event the said Court had 'no jurisdiction, but the opposite party could not deny that the rent payable on the basis of rent receipts and rent payable on the basis of the agreement was more than Rs. 1430/-. From this it is also crystal clear that whole thing was manovoured in a machinating manner to obtain possession surreptiously by extra judicial means and power. When this Court finds that by practising a clear fraud, a proceeding was initiated and an order was obtained whereby a tenant has been dispossessed in, a most wrongful and arbitrary manner, in that event it is the duty of the Court to set at right the wrong and not to ask the party to file a suit and/or to file a suit and/or to file a proceeding with an applicationfor recalling or the order or decree which was obtained by practising a fraud upon the Court which would be subversive of the cause of justice. In this case even though an application for Receiver and an application for recalling of the order are pending before the Small Causes Court at Calcutta, we deem fit and proper in the interest of justice to quash the entire proceedings as the Court had no jurisdiction to entertain such applications and to pass an order for eviction and dispossession. Secondly, the whole thing was mano-euvered at the and machenaries (sic) of the landlady/opposite party. In the facts and circumstances of the case if no interference is made by this Court setting aside the entire proceeding, the people's confidence in the administration of justice will be shaken. If this state of affairs is allowed to continue, in that event, the litigants will be encouraged to take possession of the properties by passing the procedure established by law with the help of money and manpower. The remedy provided under Art. 227 of the Constitution of India is discretionary and in the facts and circumstances of the case, we are of the view that there are frequent violations of law by obtaining the order by practising a fraud upon the Court which has resulted a grave injustice to the parties affected and unless this Court interferes and remedy is given to the affected party the proper justice will be denied to the said affected party.
Accordingly considering the facts and circumstances of this case, we set aside the order of eviction passed by the learned Judge, Small Causes Court, Calcutta dt. 3-8-92 and all orders passed in the said Suit No. 185 of 1992 including execution and taking over possession are all set aside. The receiver is directed to handover and put back the petitioner into the possession of the property forthwith. The Officer in Charge of the Park Street Police Station is also directed to render all assistance to the Special Officer for the purpose of putting back the petitioner into possession and to see that no breach of peace takes place. The receiver shall also be paid an additional remuneration of 100 Gms. to be paid by the petitioner. Serious allegation has been made against the opposite party that at the time oftaking over possession valuable properties and things were forcibly taken away and that the inmates of the house were forcibly driven out from the premises, keeping valuable properties in their possession and thereafter misappropriated the valuable properties. For the petitioner will be at liberty to file any other proceeding for redress of the grievances according to law including suit for damages. We also went to place it on record that the Judges of the Small Causes Court, Calcutta and all the officers of that Court shall henceforth be very careful in such matter for passing a summary order of eviction and they must be fully satisfied that parties have been duly served and the process of the Court are not being over riched the parties with the help of their money and manpower the (sic). This note of warning is given otherwise this will encourage litigants to abuse the process of law and take over possession of the property forcibly who have extra judicial means and powers. If his extra judicial methods and means are allowed to be prevailed, in that event that would destroy the present judidial system in our country and in this connection we refer to the observation made by the Division Bench of this Court in the case of Usha Ghose v. Rabindra Nath Das reported in (1991) 2 Cal HN 502 and such possession should be made over within two days from today. This order is passed also without prejudice to the rights and contentions of the landlord-opposite party to take steps for eviction only in accordance with the law by initiating appropriate legal proceeding before the appropriate Court of Law. That apart a serious allegation has been made in the supplementary affidavit that on the strength of an order the landlady's musclemen with the help of bailiff and police personnel entered into the premises and forcibly drag out the family members of the petitioner from the said flat and thereafter looted away the valuable properties. The bailiff's report is not on record. We are highly dissatisfied with the state of affairs evident from this case. Such state of affairs cannot allowed to be continued, but with regard to the grievances of the petitioner regarding looting away and removal of valuables from the premises at thetime of after taking over of possession is concerned, we cannot grant any relief straightway in a proceeding like this, inasmuch as this was a disputed question of fact, but considering the nature of allegations made before us and in the interest of justice we are giving liberty to the petitioner to file a formal complaint before the Deputy Commissioner, Detective Department, Lal Bazar in respect of the said incident within a week from the date and if such complaint is filed, in that event the Deputy Commissioner, Detective Department, Calcutta is directed to cause an investigation into the matter in accordance with law and take steps as the said authority may deem fit and proper. If it transpires that any of the officers attached to the Court is also involved, in that event nobody will be spared if anything is found against them.
This application is allowed with cost assessed at 500 gms. This exemplary cost is must as this Court is fully satisfied that a clear fraud was committed upon the Court by the opposite party for obtaining possession in such surreptitious manner.
12. Let a xeroxed copy of the above order be given to the parties on the usual undertaking.
13. Let a plain copy of the operating portion of the above order only countersigned by the Assistant Registrar Court be given to the learned Advocate for the petitioners on the usual undertaking.
S.K. Guin, J.
14. I agree.
15. Order accordingly.