the finding recorded by the Learned Judge at the time of allowing of the
application under Section 7 (2) of the WBPT Act, 1997 is nothing but a
tenttive findings and ultimately the petitioner/defendant no.3 will get
chance to adduce evidence when the full fledged trial would take place in
Ejectment suit.
12. Therefore, considering the submissions of Mr. Sen and also
considering the decision reported in 1987(1) CHN (Cal) (Supra) I have no
hesitation to hold that the present revisional application should not be
sustained in the eye of law and it should be dismissed.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present: The Hon’ble Justice Samapti Chatterjee
C.O.1333 of 2015
Subir Saha
Vs
Sankarlal Mitra & Ors.
Judgment on : August 7, 2015.
Samapti Chatterjee, J.
Citation:AIR 2016(NOC)374 Cal
1. The petitioner/defendant no.3 filed the present revisional
application assailing the order No.81 dated 16th February, 2015 passed
by the Learned Judge, 3rd Bench, Small Causes court at Calcutta in
Ejectment Suit No.119 of 2005.
2. The defendant no.3/petitioner’s case in brief is as follows :- That the present suit for eviction has been initiated by the
plaintiff/opposite party against his predecessor-in-interest namely Sri
Kalipada Saha for eviction and recovery of Khas possession of the suit
premises. It was also mentioned in the said suit that the said Kalipada
Saha, since deceased was inducted as a tenant in respect of the suit
premises in June, 1985 at a monthly rent of ` 125/- payable as per
english calendar month.
It also appears that plaintiff/opposite party in the suit has claimed
the monthly rent to be ` 550/- instead of `125/- and for establishing the
same in proceedings under Section 7(2) of WBPT Act, 1997 the
plaintiff/opposite party produced some documents bearing the signature
of Kalipada Saha and his defendant/plaintiff which has been marked as
Exbt. C, D and E. The plaintiff/opposite party categorically denied that
rent has ever been enhanced from `125/- to `550/-.
It was also the case of defendant/petitioner that the signature of
the defendant no.3 or of Kalipada Saha on the said documents marked
as Exbt.C. D and E are not at all genuine. On the basis of that the
defendant no.3/petitioner filed an application praying for appointment of
handwriting expert at his own cost for comparison of the signature of
Kalipada Saha on Exbt.C with admitted signature on Exbt.A and for
comparison of the disputed signature of the defendant/petitioner on
Exbt.D and E with his admitted signature on deposition sheet. The plaintiff/opposite party by filing written objection on 28th February, 2014
challenged the maintainability of the petition for appointment of
handwriting expert and the plaintiff/opposite party contended in the
written objection that it is merely an attempt on the part of the defendant
to drag and delay the matter. The said application for appointment of
handwriting expert was rejected by the Learned Court below.
Challenging the same the defendant no.3/petitioner filed a revisional
application being C.O No.2247 of 2014 before this Hon’ble court which
was ultimately dismissed by this Hon’ble court vide Order dated 16th
July, 2014.
At the time of dismissal of the said revisional application the
Hon’ble Court held as follows :-
“Those documents are relevant for the purpose of ascertaining the
rate of rent and not otherwise. The jural relationship of the landlord and
tenant is not in dispute and, therefore, this Court does not find any
illegality and/or infirmity in rejecting the said application.
However, this Court must record that the Trial Court shall consider
the admissibility of those documents at the time of considring an
application under Section 7(2) of the said Act and in the event, the Court finds that the rate of rent as claimed by the plaintiff/opposite party is
correct, shall permit the petitioner to deposit the same in Court.”
Thereafter the said application under Section 7 (2) of WBPT Act,
was allowed by the Order No.81 dated 16th February, 2015 passed by the
Learned 3rd Judge, Small Causes Court at Calcutta in Ejectment Suit
No.119 of 2005 with the following orders :-
“That the petition under Section 7 (2) of the WBPT Act stands
disposed of on contest without any order as to cost.
Till date, the defendants are found to be a defaulter in payment of
rent for only 134 months being December, 2003 till January, 2015.
At the adjudicated rate of Rs.550/-, arrear rent for 134 month
arrives at Rs.73700/-. Statutory interest @ 10% stands at
Rs.7370/-.
Thus, an amount of Rs.81070/- (73700 + 7370) is found to be due
and payable by the defendants towards arrear rent with interest.
They directed to deposit the said amount of Rs.81070/- in Court
within a period of one month from the date of this order.
The defendants are further instructed to go on depositing the current
month by month rent in Court from February, 2015 onwards within
the time prescribed u/s 7 (1) ( C ) WBPT Act, i.e. by the 15th day of each succeeding English Calendar month at the rate of Rs.550/-
p.m.
Let me reiterate that the findings regarding the rate of rent is
tentative and the plaintiff shall not be allowed to withdraw the rent
if any deposited in Court at that rate, till disposal of the Suit.
Fix 10.4.15 for framing of issues (including one regarding the
dispute relating to rate of rent).”
Challenging the same, the defendant no.3/petitioner filed the
present revisional application.
3. Mr. Anit Kr. Rakshit, learned Advocate appearing for the
defendant no.3/petitioer submits that at the time of allowing the petition
under Section 7 (2) of the WBPT Act, the Learned Judge erred in law by
holding “In this case,, signatures of Kalipada Saha in Exbt.A (admitted)
and Exbt. C (disputed) appeared to the naked eye are similar and almost
identical”.
4. Mr. Rakshit vehemently urged that it is crystal clear that
Learned Judge was not at all sure about the genuineness of the
signature in Exbt. A and Exbt.C. That is why on the basis of
apprehension Learned Judge came to the conclusion that the signature
of Kalipada Saha in Exbt.A (admitted ) and Exbt.C (disputed) are similar and almost identical which clearly shows that he was not 100 %
confident or satisfied that the signature on both the documents are
similar and identical.
5. That being the position, Mr. Rakshit contended that this type of
observation made in respect of the documentary evidence by the Learned
Judge will frustrate the petitioner/defendant no.3’s case in the pending
Ejectment suit. Though admittedly on the face of the impugned order it
is crystal clear that the Learned Judge failed to come to the conclusion
regarding genuineness of the signatures appearing in Exbt. A (admitted)
and Exbt.C (disputed). Therefore, the impugned order should be set
aside by this Hon’ble Court by directing the Learned Court below to
appoint handwriting expert to examine the genuineness of the signatures
as disputed by the defendant no.3/petitioner.
6. Mr. Sourav Sen, learned Advocate appearing for the
plaintiff/opposite party vehemently urged that there is no scope to
appoint handwriting expert at this stage when admittedly the application
under Section 7 (2) of WBPT Act has been disposed of by the impugned
order No.18 dated 16th February, 2015.
7. Mr. Sen further strongly contended that the petitioner’s
application for appointment of handwriting expert was previously rejected by the Learned Court below and challenging the same the
petitioner earlier filed a revisional application being C.O. No.2247 of
2014 which was dismissed by this Hon’ble Court vide order dated 16th
July, 2014. The petitioner/defendant no.3 did not challenge the said
order of this Hon’ble court by preferring any SLP before Hon’ble Apex
Court. Therefore, that order dated 16th July, 2014 is binding upon the
parties and has attained its finality.
8. Mr. Sen further contended that present revisional application
has been filed with a ulterior motive to drag and frustrate and delay the
proceedings of Section 7 (2) of WBPT Act arisen out of Ejectment suit.
9. Mr. Sen also vehemently urged that the observation/view made
in application under Section 7 (2) of WBPT Act is tentative and it has not
reached its finality. More so, the defendant no.3/petitioner will get
chance/scope to adduce evidence at the time of full fledged trial which
would take place at the time of evidence in the Ejectment suit. In
support of his contention Mr. Sen relied on a decision reported in 1987
(1) CHN (Cal) Page 362 Paragraph-12 (Nanda Gopal Das vs Rabindra
Nath De & Anr) which is quoted below : -
“Para-12-That apart, the question before Mukherji, J, in J.K. Sons
(supra) was whether the determination of the rate of rent under s 17(2) of
the Act could again be reopened at the trial by striking an Issue to that effect afresh, and the learned Judge answered the question in the
negative. The learned Judge thought that since s.17(2) on its express
terms requires determination of the rate of rent to be made firstly by a
preliminary order made under such determination made by the final order
must be final for all purpose. But even though not so expressly labelled,
the determination of disputes under s 14(4) of the 1950 Act was also
obviously final, but as held in Ashalata Mitra (supra), it was final only for
the purpose of the application. We do not find any material difference in
the relevant context to indicate that while a determination of rate of rent
under s 14 (4) of the 1950 Act was final for the purpose of the relevant
application only, a similar determination under s 17(2) of the 1956 Act is
final also for the purpose of trial. At any rate, in view of the observations
made in the later Division Bench decision of this Court in Aloka Ghose
(supra), which is a decision under s 17 of the present Act of 1956, the
matter must be taken to have been clinohed. We are, therefore, of the
oopinion that in view of the ratio in the Division Bench decisions in
Ashalata Mitra (supra) and in Aloka Ghose (supra), we would have to hold
that the determination of arrears and default under an application under s
17 (2) would be final for the purpose of that application only, unless the
Issue of default in the suit and the application under s 17 were heard and
decided together.” 10. Considering the submissions advanced by the learned
Advocates appearing for the respective parties and after perusing the
records I find that at present there is no scope to direct the Learned
Court below to appoint handwriting expert as it is evident from the
records that the defendant no.3/petitioner filed an application for
appointment of handwriting expert to examine the admitted and disputed
signatures of Kalipada Saha as well as the defendant no.3 but that was
rejected by the Learned Court below. Feeling aggrieved by that order
earlier the defendant no.3/petitioner filed a revisional application being
C.O. No.2247 of 2014 which was rejected by this Hon’ble Court vide
order dated 16th July, 2014.
11. I also find some substance in the argument of Mr. Sen that in
the finding recorded by the Learned Judge at the time of allowing of the
application under Section 7 (2) of the WBPT Act, 1997 is nothing but a
tenttive findings and ultimately the petitioner/defendant no.3 will get
chance to adduce evidence when the full fledged trial would take place in
Ejectment suit.
12. Therefore, considering the submissions of Mr. Sen and also
considering the decision reported in 1987(1) CHN (Cal) (Supra) I have no
hesitation to hold that the present revisional application should not be
sustained in the eye of law and it should be dismissed. 13. Accordingly the present revisional application is dismissed
without any order as to costs.
14. Urgent photostat certified copy of this judgment, if applied for,
be supplied to the parties after fulfilling all the formalities.
(Samapti Chatterjee, J).
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