Smt. Mira Das Vs. Ms. Dipali Dey (Baxi) - Court Judgment

Tapan Kumar Dutt, J.

1. Heard the learned Counsels for the respective parties.

2. The facts of the case, very briefly, are as follows:

The plaintiff/opposite party filed a Suit (T.S. 150 of 2001) against the petitioner praying for a declaration that the plaintiff/opposite party is a premises tenant in respect of the suit property under the defendant/petitioner, permanent injunction restraining the petitioner from dispossessing the opposite party from the suit property and/or creating any hindrance, obstruction in the peaceful possession of the opposite party and for mandatory injunction directing the petitioner to restore water and electric supply line in the suit property in favour of the opposite party. In the said suit the opposite party moved an application for injunction for a direction upon the petitioner to restore the supply of electricity to the opposite party subject to payment of consumption charges. The petitioner contested the said application by filing written objection. The learned trial Court by order dated 24.08.2005 allowed the said application by directing the petitioner to restore the supply of electricity to the opposite party subject to payment of consumption charges by the opposite party till the disposal of the suit. Challenging such order dated 24.08.2005 the petitioner preferred an appeal being Misc. Appeal No. 228 of 2005. The said Misc. appeal came up for hearing and after hearing the Misc. appeal the learned lower Appellate Court dismissed the said Misc. appeal by order dated 19.04.2006. Challenging the said order dated 19.04.2006 the petitioner has filed the present application under Article 227 of the Constitution of India.

3. The learned Counsel appearing on behalf of the petitioner raised two points in this case. His first argument was that if the plaint filed by the opposite party is read as a whole it will be clear that the suit cannot be entertained by the Civil Court before which it has been instituted. The said learned Counsel's submission was that in view of Section 44 of the West Bengal Premises Tenancy Act, 1997 the jurisdiction of the Civil Court is barred. According to the said learned Counsel the opposite party's suit is essentially a suit for restoration of electric supply and water supply, and the Controller has been given the necessary powers in this regard under the said Act of 1997. The said learned Counsel relied upon a Judgment passed by a Division Bench of this Court in F.M.A.T. 4710 of 2006 in support of his submissions.

4. The learned Counsel for the opposite party raised objection against the aforesaid argument of the petitioner's learned Counsel and submitted that such point has neither been taken in the application under Article 227 of the Constitution of India nor was it ever argued before the learned Courts below. According to the said learned Counsel for the opposite party the petitioner cannot be allowed to raise such point. Having considered the materials on record it appears to this Court that the petitioner has not taken the point of maintainability of the suit filed by the opposite party either in the present revisional application or before the learned Courts below. Since such point has not been taken even in present revisional application it can be said that the petitioner has not put the opposite party on notice with regard to such point. In such circumstances, this Court is not inclined to decide such point regarding the maintainability of the suit in the present application. This, however, will not prevent the petitioner from raising such point at the appropriate stage in a proper manner.

5. The next point which has been raised on behalf of the petitioner was that the opposite party does not have any prima facie case at all in support of the prayer for any mandatory order of injunction, as prayed for by the opposite party. It appears from record that the petitioner has filed a suit for eviction against the ex-husband of the opposite party and the petitioner's learned Counsel has submitted that the ex-husband of the opposite party was a tenant in respect of the suit property and an eviction suit has been filed by the petitioner against the opposite party's ex-husband. The said learned Counsel submitted that opposite party has no right in respect of the suit premises, particularly after the divorce between the opposite party and her husband took place. The said learned Counsel further submitted that the opposite party, however, has claimed an independent right in her plaint by alleging that the opposite party was inducted as a premises tenant in the suit property by the petitioner. The said learned Counsel submitted that the opposite party could not produce anything before the learned courts below to show, even prima facie, that the opposite party is a tenant in respect of the suit property, and according to the opposite party the petitioner never issued rent-receipt inspite of receiving the rental charges month by month from the opposite party. The said learned Counsel submitted that the allegations made in the plaint clearly show that the opposite party is not in possession of any document to prove payment of rent by the opposite party. The said learned Counsel submitted that the impugned orders should be set aside since the opposite party does not have any prima facie case.

6. The learned Counsel for the opposite party referred to the decree of divorce dated 17.12.1993 which the opposite party obtained against her husband in the matrimonial suit concerned. A copy of such decree has been annexed to the affidavit-in-opposition. The said learned Counsel submitted that the opposite party is entitled to a right of residence in the suit property even if the opposite party's husband had been a tenant in the suit property.

7. It appears from the submission made by the learned Counsel for the opposite party and also from the copy of the decree annexed to the affidavit-in-opposition that the marriage tie between the opposite party and her husband has been dissolved by a decree of divorce in the year 1993. There is also no dispute about the fact that an eviction suit has been filed by the petitioner against the ex-husband of the opposite party. According to the learned Counsel for the petitioner the opposite party has no right at all to occupy the suit property. The learned Counsel for the petitioner further submitted that the opposite party cannot raise the plea as raised by her learned Counsel with regard to her alleged right of residence in the tenancy in respect of which her ex-husband was once upon a time a tenant. According to the said learned Counsel for the petitioner the said tenancy was determined and an eviction suit has been filed. The learned Counsel for the petitioner submitted that the opposite party cannot raise such plea before this Court since the opposite party has not made any such allegation in her plaint. In the suit filed by the opposite party, it is not the case of the opposite party that she is claiming any right through her ex-husband or any right under any law of maintenance in respect of her ex-husband's property. The learned Counsel for the petitioner has submitted that there is no foundation in the opposite party's pleadings before the learned Trial Court to support the plea taken on her behalf at the time of hearing of the present revisional application.

8. The learned Counsel appearing on behalf of the opposite party cited a decision reported at : AIR2005SC3557 [Ruma Chakraborty v. Sudha Rani Banerjee and Anr.]. The facts and circumstances of the said reported case were different. In the said reported case the appellant before the Hon'ble Supreme Court was an unsuccessful intervenor in a suit for eviction brought by the landlady against the appellant's ex-husband. The appellant was the divorced wife of the tenant in respect of the property in dispute in the said reported case. The appellant had filed an application under Order 1 Rule 10(2) CPC which was rejected by the learned Trial Court and ultimately the matter went up to the Hon'ble Supreme Court. The only question that came up for consideration before the Hon'ble Supreme Court was as to whether or not the said appellant had a right to be impleaded as a party-defendant in the suit. It further appears from a perusal of the facts, as contained in the said reported case, that the matrimonial Court concerned, in the said reported case, while dissolving the marriage under Section 13(b) of the Hindu Marriage Act, 1955 ordered the husband of the appellant to pay a certain sum of money per month for the maintenance of the minors only. The Hon'ble Supreme Court came to the conclusion that the appellant had expressly waived her right to maintenance. It further appears that some of the provisions of the Hindu Adoption and Maintenance Act, 1956 were also considered by the Hon'ble Supreme Court. It further appears that the ex-husband of the said appellant entered appearance in the eviction suit and was contesting the same. The Hon'ble Supreme Court was pleased to observe that the said appellant had no locus standi to be impleaded in the suit either as a necessary or a proper party. The Hon'ble Supreme Court was pleased to consider, in the said reports, another reported case of the Hon'ble Supreme Court which has been reported in : AIR2005SC986 (B.P. Achala Anand v. S. Appi Reddy). In B.P. Achala Anand's case, the Hon'ble Supreme Court was pleased to observe 'that a deserted wife continuing in occupation of the premises obtained on lease by her husband, and which was their matrimonial home, occupies a position akin to that of an heir of the tenant-husband if the right to residence of such wife has not come to an end.' In B.P. Achala Anand's case it was further observed by the Hon'ble Supreme Court that 'the case of a divorced wife stands on a little different footing. Divorce is termination of matrimonial relationship and brings to an end the status of wife as such. Whether or not she has the right of residence in the matrimonial home, would depend on the terms and conditions in which the decree of divorce has been granted and provision for maintenance (including residence) has been made. In the event of the provision for residence of a divorced wife having been made by the husband in the matrimonial home situated in the tenanted premises, such divorced wife too would be entitled to defend, in the eviction proceedings, the tenancy rights and rights of occupation thereunder in the same manner in which the tenant-husband could have done and certainly not higher or larger than that. She would be liable to be evicted in the same manner in which her husband as tenant would have been liable to be evicted.'

9. In Ruma Chakraborty's case (supra), the Hon'ble Supreme Court held, after having considered the case of B.P. Achala Anand (supra), that the appellant in the said case had no right to contest or defend herself nor a right to file and prosecute the eviction proceedings and there was no privity of contract between the said appellant and the landlady. It appears that an argument was made on behalf of the appellant in the said reported case that the appellant was a sub-tenant in the tenanted premises but the Hon'ble Supreme Court was pleased to reject such argument made on behalf of the appellant. The Hon'ble Supreme Court was further pleased to hold that the 'appellant in the status of a divorcee cannot claim interest in the suit premises either independently or through her erstwhile husband and as such she cannot be held to say that she is a party without whose presence the Court cannot adjudicate and pass the decree. She is, therefore, not a necessary party.' The Hon'ble Supreme Court, in the said reports, was pleased to find that neither the learned Trial Court nor the Hon'ble High Court committed any jurisdictional error in dismissing the said appellant's application under Order 1 Rule 10 CPC.

10. In the instant case we find that the opposite party herself has obtained a decree of divorce against her husband and in such decree no provision has been made with regard to any right of maintenance and/or residence in favour of the opposite party. It will, thus, appear that the aforesaid reported case cannot be of any assistance to the opposite party.

11. Another case reported at : AIR1997SC1334 (Neki s/o Bakhatawar v. Satnarain and Ors.) was cited by the learned Counsel for the opposite party and attention of the Court was drawn to paragraph 5 of the said reports. The said paragraph 5 of the said reports is quoted below:

5. Since the appellant has been tenant for the past 50 years and never committed default in the payment of share of the crop, it is unlikely that he would commit default in the payment of rent for 1978. The normal probable human conduct would show that he must have paid the amount to the agent of the principal landlord. It is also an admitted position that subsequent to the filing of the application for three years he had already paid the rent to the respondent's GPA. Under these circumstances, the question emerges : whether the appellant has subsequently paid the rent for the year 1978 also? On a conspects of the relevant provisions and the probable human conduct, the finding recorded by the Commissioner is not sustainable. Generally, tenant is not expected to demand from the landlord issue of a rent receipt for payment of the amount. After all, it is a relationship of confidence between the landlord and the tenant, unless there is a special contract in that behalf. In this case, there appears to be a common practice of payment by way of the share in the crop, after the harvest, to the agent of the landlord. Under these circumstances, we are of the view that the finding that the appellant has committed default in payment of rent for the year 1978 due to failure of crop and had paid the same in the later year is not correct. He is not liable to ejection. The finding contra is not sound in law. The High Court has committed manifest effort of law in not interfering with the finding thus recorded by the primary authority and the revisional authority. In this view of the matter, it is unnecessary to go into the second question.

12. On a perusal of the said paragraph 5 of the said reports this Court is of the view that the citing of the said reports has no relevance in so far as the present case is concerned, since, the facts and circumstances of the present case are quite different.

13. The learned Counsel for the opposite party referred to a case reported at : (2007)3SCC169 S.R. Batra and Anr. v. Taruna Batra (Smt.) and drew the attention of this Court to paragraph 29 of the said reports while submitting that the opposite party is entitled to take shelter under the provisions of the Protection of Women from Domestic Violence Act, 2005. In the said reported case, the Hon'ble Supreme Court was pleased to affirm the order of the learned senior Civil Judge who had dismissed the injunction application filed by the wife. In any event, the facts of the said reported case were quite different from the facts of the instant case. In paragraph 29 of the said reports the Hon'ble Supreme Court considered the question as to what is meant by a 'shared household'. In the facts and circumstances of the said reported case the Hon'ble Supreme Court was pleased to observe that the property in question neither belonged to the husband of the wife in that case nor was it taken on rent by such husband nor was it a joint family property of which the said husband was a member. The Hon'ble Supreme Court found that it was the exclusive property of the mother-in-law of the said wife and hence it could not be called a 'shared household'. A reading of the said reported case would reveal that the said reported case cannot apply in the facts and circumstances of the instant case. In the instant case the opposite party is a divorcee. In paragraph 29 of the said reports the Hon'ble Supreme Court was pleased to observe that the wife is only entitled to claim a right to residence in a shared household, and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. In view of the fact that the opposite party has already obtained a decree of divorce against the petitioner and the matrimonial relationship has come to an end way back in 1993, the opposite party is not entitled to claim any right of residence in respect of the suit property. The said reported case of S.R. Batra and Anr. (supra) did not deal with the case of a divorcee-wife.

14. In the instant case, it appears, the learned Trial Court relied upon a Commissioner's report that there was electric wiring, fan, light, bulb etc. in the suit property which shows that electricity connection did exist and therefore the learned Trial Court found that a prima facie case has been established in favour of the opposite party. The learned Lower Appellate Court also relied upon such Commissioner's report. It further appears that the learned Lower Appellate Court considered a Xerox copy of a certain rent-khata without discussing as to what such rent-khata is about. The learned Counsel for the petitioner has denied any payment of rent by the opposite party to the petitioner.

15. It is obvious that if the opposite party's ex-husband had been a tenant in the suit property there might have been electric supply connection in the suit property but the question is as to what right the opposite party herself has in respect of the suit property The opposite party has failed to show any prima facie case in her favour. The opposite party has claimed an independent right of tenancy in respect of the suit property but has failed to show any prima facie case in respect of such alleged right. The argument made by the learned Counsel for the opposite party cannot find support from the pleadings of the opposite party in the suit.

16. In view of the discussions made above, this Court is of the view that the learned Lower Appellate Court acted illegally and with material irregularity in dismissing the appeal and thereby affirming the order of the learned Trial Court which directed the petitioner to restore the supply of electricity to the suit property. Thus, the impugned order and also the order of the learned Trial Court, whereby the petitioner was directed to restore the supply of electricity to the suit property, are set aside.

The application under Article 227 of the Constitution of India is disposed of. There will, however, be no order as to costs.

Urgent Xerox certified copy of this order, if applied for, be given to the parties on compliance of usual formalities.