1. We have heard Mr. Jiban Ratan Chatterjee, the learned senior Counsel for the appellant-petitioners and also Mr. Aniruddha Chatterjee for the respondent-opposite party in connection with this miscellaneous appeal and the connected CAN No. 9259 of 2006.
2. The present miscellaneous appeal was directed against an order rejecting the plaint of the present appellant-petitioners whereunder the learned Court below held after considering the application filed by the respondent opposite party that the plaint as filed by the appellant-petitioners was liable to be rejected in view of the Order 7 Rule 11(1)(d) of the Code of Civil Procedure since the reliefs sought for in the plaint on the alleged cause of action were barred under Section 44 of the West Bengal Premises Tenancy Act of 1997.
3. The appellant-petitioners being dissatisfied with the rejection of their plaint have preferred this miscellaneous appeal and Mr. Jiban Ratan Chatterjee, the learned Senior Counsel appearing for the appellant-petitioners submits before us that the order impugned in this appeal cannot be sustained either in fact or in law.
4. Mr. Chatterjee submits with reference to a reported decision of the Hon'ble Supreme Court in the case of Sopan Sukhdeo Sable and Ors. v. Assistant Charity Commissioner and Ors. reported in : AIR2004SC1801 that what is required in law is not piecemeal reading of the plaint, but, in its entirety and applying this test alone, it would appear that by and large the appellant-petitioners sought for a relief of injunction and the Civil Court was very much capable of granting that relief and by no stretch of imagination by taking recourse to Section 44 of the West Bengal Premises Tenancy Act, 1997, such established jurisdiction of the Civil Court can be ousted as has been done by the learned Trial Court.
5. Mr. Chatterjee after taking us through the plaint along with its prayer portion submits that although the appellants were eager to have essential repair work at their own costs, since their attempts to undertake such repair work was resisted by the landlord-defendant of the original plaint, they had no option but to approach the Civil Court only to have the relief of injunction and it is admitted position of law that under the provisions of the Act, 1997, there was no power for the Controller to consider the prayer of injunction as urged by the appellant-petitioners.
6. Mr. Chatterjee submits that some prayer of the plaint may trouble the conscience of the Court and may raise a question regarding jurisdiction of the Civil Court, but, the appellants are not without any relief and by taking recourse to the provision of Order 2 Rule 2 of the Civil Procedure Code, the appellants can drop some of their reliefs which may stand in the way of retaining jurisdiction of the Civil Court and it was within power of the Court to allow the appellant petitioners to omit some of the reliefs so as to retain the jurisdiction of the Civil Court.
7. Mr. Chatterjee finally submits that although there is provision relating to repairing work in the Act of 1997, but, it is an option of the litigant and if there is no law ousting jurisdiction of the Civil Court regarding similar matter, the learned Trial Court cannot hold conclusively that Section 44 will come into play and snatch away the established jurisdiction of the Civil Court in granting relief of the present appellant-petitioners in view of the plaint averments and the reliefs sought for.
8. Mr. Aniruddha Chatterjee appearing for the respondent-opposite party submits before us that if we look at the provisions of the 1956 Premises Tenancy Act, which included almost same provision relating to repair work and provided for interference of Controller at the asking of the tenant and for getting relief in appropriate case, we would notice that almost the same provision was retained by the legislature in the Act of 1997, but, only glaring difference and distinction between the two Acts appears to be that of insertion of Section 44 subsequently in the parent Act of 1997 through an amendment of 2005.
9. Mr. Chatterjee contends that both in the old Act of 1956 and also in the new Act of 1997, the legislature in its wisdom vested the Controller with the necessary power of Civil Court like exercising power under Sections 151 and 152 of the Code of Civil Procedure and although by subsequent amendment of 2005, legislature omitted the power of injunction hitherto vested on the Controller that would not mean that Controller became a toothless tiger having no power to grant relief to the victim of the circumstances and in the interpretation of Mr. Aniruddha Chatterjee, the provisions of Sections 35 and 36 read with Sections 39 and 43 of the Act of 1997 empower the Controller in a more vigorous way than the old Act of 1956 to grant relief to a tenant in the matter of repairing including the power of granting injunction, even if, not in the form, but, in the content as a tenant may seek in appropriate situation.
10. Mr. Aniruddha Chatterjee submits that from the ratio of decision of the Hon'ble Supreme Court, reported in AIR 2004 SC page 1801, we got the clear indication that before coming to a conclusion regarding ouster of jurisdiction of Civil Court in a given facts and circumstances on the basis of a particular plaint, we must look at the entire plaint and we should not taken any piecemeal approach and similarly in this particular case when we shall go through each and every paragraph of the plaint along with the prayer, the thing will emerge that the entire relief sought for was that of repairing and the incidental relief was seeking of injunction to prevent the landlord and that being the admitted position available from the reading of the plaint, it cannot be stated that the plaintiff-petitioners did not avoid Section 35 of the Act, 1997, rather, only to complicate the issue and to avoid the available relief made to them through legislative amendment, they approached the Civil Court and when we look at Section 44 incorporated in the Act of 1997, we have no option, but, to come to the conclusion that the Civil Court shall have no jurisdiction on a matter over which the legislature has given special jurisdiction to a designated authority.
11. We have carefully followed the submissions of both Mr. Chatterjee, the senior Counsel appearing for the plaintiff-petitioners and also Mr. Aniruddha Chatterjee appearing for the respondent-opposite party and we feel that the crucial question which has been placed before us would be to consider whether the learned Trial Court was right in ousting the jurisdiction of the Civil Court on the basis of the plaint which was presented before it by the plaintiff -petitioners.
12. A Court must be satisfied while considering the question of jurisdiction of the Civil Court and on the face of record, endeavour should always be made on the part of the Court to retain the jurisdiction of the Civil Court unless situation compels or unless the statutory provisions compel to hold otherwise. In the present facts and circumstances, when we look at the plaint along with Mr. Chatterjee, we find that the plaintiff appellant-petitioners, in fact, sought for the repairing of the roof of the tenanted premises and the grievance was that in spite of their repeated demand, the landlord did not oblige and, for this, they decided to take up repairing work and sought for an injunction order to get their work done. Thus, when we examine the entire plaint, we find that the prayer of the appellant petitioners, was to have the repair work and the injunction order was sought only in connection with such repair work and if now we look at the provision of Sections 35 and 36 of the Act of 1997, we find that only the Controller has been given the jurisdiction to entertain such prayer of the tenant and the Controller has been provided with several measures to give relief to the tenant and at the same time we must not be oblivion of the statutory provision contained in Section 44 of the Act of 1997 which clearly ousts the jurisdiction of the Civil Court in the self-same matter.
13. There is no dispute over the position of law as settled by the Apex Court that even going to the extreme and by allowing the plaintiff to have his prayer moulded the Civil Court should try to retain its jurisdiction, but in the present case, we are of the view even the prayer contained in (a) of the plaint, would be of no help, because, the real relief sought for was that of repair and Section 44 squarely stands in the way of retaining the jurisdiction of the Civil Court over granting relief relating to repair.
14. In this context, before parting with our discussion, we may refer to an unreported judgment of this High Court delivered in CO. No. 2586 of 2007, where while examining the similar question in a different context, the Hon'ble Court held that when the suit was a declaratory suit, there was no ouster of Civil Court jurisdiction in the matter of granting interim relief of repairing work at the behest of a tenant, but, we distinguish that decision from our own case in the sense that in our case we are convinced that the suit is purely for repairing work and in the grab of claiming injunction, the plaintiff-appellants tried to approach the Civil Court overlooking and ignoring the statutory provision of the Act of 1997 and that being the position, we also take inspiration from this unreported decision and we are of the view that in our case Section 44 shall stand in the way and the Civil Court shall have no jurisdiction to entertain the matter.
15. We share the view expressed by the learned Trial Court and we do not find any merit in the present appeal and the same accordingly stands dismissed, however without any order as to costs. The connected application for stay being CAN No. 9259 of 2006 also stands rejected.