Jurisdiction of the court to entertain an original or independent suit by the tenant : high court of Calcutta
Section 44 of the 1997 act should be read to mean that a civil court shall not have the jurisdiction to entertain an original or independent suit or proceeding by the tenant for effecting repairs to the premises in question. However if a civil suit is already pending between the landlord and the tenant, it is the civil court in session of that suit which alone will have jurisdiction in the matter of repairs to the premises, is upheld by the High court of Calcutta, by the learned bench of honourable Justice Arijit Banerjee, in the case of Mrinal Kanti Ghosh V. Mango Debi, CO 1191 of 2012.
The petitioner herein filed Ejectment Case No. 5 of 2005 against the opposite parties in the 3rd Court of the Civil Judge (Junior Division) at Sealdah. In the said suit, the opposite parties filed an application dated 18th March, 2008 praying for leave to effect repairs to the suit premises. Before the Trial Judge the petitioner/landlord strongly opposed the said application and contended that under the West Bengal Premises Tenancy Act, 1997 only the Controller has the power to entertain such an application. It was contended that since the Controller is empowered to entertain such an application, under Section 44 of the said Act the jurisdiction of Civil Courts is barred. The Trial Judge held that the Controller will have jurisdiction only when no litigation is pending between the landlord and tenant in a Civil Court. However, when a litigation is pending between the landlord and the tenant before the Civil Court, the Controller will have no jurisdiction. The Judge allowed the application of the opposite parties for making repairs to the suit premises by an order dated 16th March, 2012. Being aggrieved by such order the petitioner/landlord is before this Court by way of the instant revisional application.
It was finally laid out by the court that section 35 of the 1997 Act no doubt empowers the Controller to entertain a tenant’s application for making repairs to the tenanted premises. Section 44 of the said Act provides that no Civil Court shall entertain any suit or proceeding in so far it relates to fixation of fair rent or to any other matter which the Controller is empowered to decide. Thus, there appears to be an apparent ouster of Civil Court’s jurisdiction in respect of a tenant’s application for making repairs. However, giving such an interpretation to Section 44 would, lead to an anomalous situation. Even when a civil suit may be pending between the landlord and the tenant, the tenant would be required to approach the Controller for the purpose of making repairs to the premises in question. This would not only be inconvenient but also would give rise multiplicity of proceedings. Further, the court laid out that any dispute between the landlord and the tenant regarding repairs to the premises in question can be more effectively and conveniently resolved by the Civil Court which is already in season of a civil suit between the landlord and the tenant. The court further stated that section, 44 of the 1997 Act should be read to mean that a Civil Court shall not have the jurisdiction to entertain an original or independent suit or proceeding by the tenant for effecting repairs to the premises in question. However if a civil suit is already pending between the landlord and the tenant, it is the Civil Court in session of that suit which alone will have jurisdiction in the matter of repairs to the premises. According to the court, it does not matter whether the landlord or the tenant has instituted the civil suit. It could be a suit for eviction and recovery of possession filed by the landlord or it could be a suit for declaration and injunction filed by the tenant. In both cases and cases of similar nature, the Civil Court alone will have jurisdiction to entertain disputes as to repairs.
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Judgement reviewed by – Rani Banerjee