Ct No. 2 vs P.M. Sri Sukdeb Dhara & Anr on 29 June, 2026

Calcutta High Court (Appellete Side)

Ct No. 2 vs P.M. Sri Sukdeb Dhara & Anr on 29 June, 2026

                               C.O. 4171 of 2023
29.06.2026
Sl no. 17                      Sri Dilip Kumar Khan & Ors.
 Ct no. 2                            - Vs -
  P.M.                         Sri Sukdeb Dhara & Anr.

                               Mr. Pinaki Ranjan Mitra,
                                     ... for the petitioners.
                               Mr. Abhilash Chatterjee,
                               Ms. Najmee Parveen
                                     ... for the opposite party

             1.

Present petition has been filed challenging the

impugned order dated 5th October, 2023 whereby

learned Trial Court allowed the application of the

opposite party/defendant under Section 7(2) of

the West Bengal Premises Tenancy Act, 1997.

Petitioner/landlord aggrieved of the same has

invoked the jurisdiction of this Court.

2. Learned counsel for the petitioner submits that

the premises in dispute was let out to late Samar

Kanti Dhara. Learned counsel submits that Sri

Samar Kanti Dhara died long back, however the

factum regarding his death was not informed to

the petitioner/landlord. Learned counsel

submits that in view of Section 2(g) of the West

Bengal Premises Tenancy Act, 1997 the

petitioners have become trespasser in the suit

property.

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3. Learned counsel submits that since eviction was

not filed on any of the ground mentioned in

Section 6 of the West Bengal Premises Tenancy

Act, 1997 the application filed by the opposite

party under Section 7 of the West Bengal

Premises Tenancy Act, 1997 were not

maintainable at all.

4. Learned counsel submits that the learned Trial

Court has fallen into error by returning the

finding vide the impugned order at the

preliminary stage to the effect that the opposite

party are tenant in the premises in question.

5. Learned counsel for the opposite party submits

that perusal of the plaint filed before the learned

Trial Court would indicate that the petitioner

had alleged that there was an arrear of rent and,

therefore, on the basis of such pleadings it can

be inferred that the eviction was sought on the

ground of non -payment of rent.

6. The Court has considered the submissions and

perused the record carefully. Initially Section

2(h) of the West Bengal Premises Tenancy Act,

1956 provided as under : –

“tenant” [means any person] [Words substituted

for the words ‘includes any person’ by W.B. Act
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29 of 1965.] by whom or on whose account or

behalf, the rent of any premises is, or but for a

special contract would be, payable and [includes

any person continuing in possession after the

termination of his tenancy or in the event of such

person’s death, such of his heirs as were ordinarily

residing with him at the time of his death,] [Words

substituted for the words ‘also any person

continuing in possession after the termination of

his tenancy’ by W.B. Act 29 of 1965.] but shall

not include any person against whom any decree

or order for eviction has been made by a Court of

competent jurisdiction.

7. Consequent upon the amendments in the West

Bengal Premises Tenancy Act, 1997, Section 2(g)

provided as under :

tenant” means any person by whom or on whose

account or behalf the rent of any premises is or,

but for a special contract, would be payable, and

includes any person continuing in possession after

termination of his tenancy and, in the event of

death of any tenant, also includes, for a period not

exceeding five years from the date of death of

such tenant or from the date of coming into force

of this Act, whichever is later, his spouse, son,
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daughter, parent and the widow of his predeceased

son, who were ordinarily living with the tenant up

to the date of death of the tenant as the members

of his family and were dependent on him and who

do not own or occupy any residential premises,

and [in respect of premises let out for non-

residential purpose his spouse, son, daughter and

parent who were ordinarily living with the tenant

up to the date of his death as members of his

family and were dependant on him or a person

authorised by the tenant who is in possession of

such premises,] but shall not include any person

against whom any decree or order for eviction has

been made by a court of competent jurisdiction.

Provided that the time-limit of five years shall not

apply to the spouse of the tenant who was

ordinarily living with the tenant up to his death as

a member of his family and was dependant on him

and who does not own or occupy any residential

premises.

Provided further that the son daughter, parent or

the widow of the predeceased son of the tenant

who was ordinarily residing with the tenant in the

said premises up to the date of death of the tenant

as a member of his family and was dependant on

him and who does not own or occupy any
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residential premises, shall have a right of

preference for tenancy in a fresh agreement in

respect of such remises [on condition of payment

of fair rent]. This proviso shall apply mutatis

mutandis to premises let out for non-residential

purpose.

8. The bare perusal of the Section 2(g) would reveal

that upon death of a tenant, the spouse, son,

daughter, parent and the widow of predecessor,

who were ordinary living with the tenant up to

the date of his death as members of his family

and were dependent on him and did not own or

occupy any residential premises can stay for a

period not exceeding five years from the date of

such death or from the date of coming into force

of this Act, whichever is later.

9. Further perusal of Section 2(g) would indicate

that to fulfill the conditions of Section 2(g)

certain factual matrix are to be taken into

account, which includes, whether the persons

were ordinarily residing with tenant up to the

death of the tenant as the members of his family

and dependent on him and whether they do not

own or occupy any residential premises.
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10. Learned counsel submits that in this

circumstances, where the suit for eviction has

been filed on the ground of Section 2(g) of the

West Bengal Premises Tenancy Act., 1997 the

Court cannot return the finding under section 7

of the West Bengal Premises Tenancy Act, 1997

regarding the status of the person claiming

himself to be the tenant. Learned counsel

submits that even the application under Section

7 is not maintainable at this stage.

11. In Jugal Kisor Das Naskar – Vs. – Sri Dilip Das

& Anr. reported in 2023 Supreme (Cal) 369 it

was inter alia held as follows : –

12. Thus upon reading the provisions

contained in Section 7(1) and 7(2) of the West

Bengal Premises Tenancy Act 1997 it will be

clear that the said sub-Sections provides the

liability of tenant in depositing rent to get the

benefit of protection against eviction.

13. However, the provision of Section 7 of the

West Bengal Premises Tenancy Act 1997

provides that the condition laid down in the

said section is to be complied in the event a suit

for eviction is instituted by a landlord against a

tenant on any of the grounds referred to in
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Section 6. Thus when a suit is not instituted

under Section 6 of the West Bengal Premises

Tenancy Act 1997 by a landlord against a

tenant the compliance of condition under

Section 7 of the West Bengal Premises Tenancy

Act does not and cannot arise. It will also not be

open to the plaintiff to allege that the defendant

has not complied the condition as provided

under Section 7 of the West Bengal Premises

Tenancy Act 1997, where suit is not instituted

under Section 6 of the West Bengal Premises

Tenancy Act 1997.

14. In the instant suit the plaintiff has alleged

that the defendants/opposite parties are the

trespassers in the suit property, on the other

hand the defendants/opposite parties have

claimed themselves to be tenants of the suit

property. Now in the event the defendants can

establish themselves as tenants of the suit

property the suit will become ‘not maintainable’

and will fail as because a tenant under West

Bengal Premises Tenancy Act 1997 can be

evicted only on the grounds as provided under

Section 6 of the said statute. In such a case the

maintainability of the suit should be decided
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first in accordance with law. In the event suit

becomes non-maintainable it shall fail. On the

other hand if the suit is maintainable it has to

be proceeded and decided in accordance with

law.

15.In the case of Ramkrishna Poddar and ors

VS Sudhanshu Saha being CO 915, 917 and

918 of 2019, a Learned Single Bench of this

Court observed as follows:

’13. Learned Advocate for the plaintiff referring

decision reported in MANU/WB/1047/2017 :

2018 (1) CHN (Cal) 545 delivered in the case of

Dipali Halder VS. Chandan Das submitted that

Section 7 of the West Bengal Premises Tenancy

Act, 1997 would be attracted only, when the

grounds available under Section 6 of the Act were

invoked for eviction of tenant. The opposite

party/defendant had nothing to controvert the

settled proposition of law, as already referred by

the petitioner that the protections available under

Section 7(1) and 7(2) of West Bengal Premises

Tenancy Act, 1997 would be attracted only in

cases where grounds shown in Section 6 of the

Act were made use for eviction of tenant under

the Act.

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14. Admittedly, no notice was issued before the

institution of the suit on the ground that the suit

was not framed on the basis of cause of action

arose following service of notice under Section

6(4) West Bengal Premises Tenancy Act. The

proposition of law is that notice under Section 6(4)

of the Act will be served upon the

defendant/tenant mandatorily before filing of

such suit after expiry of the notice period provided

under Section 6(4) of the Act, if the tenant does

not vacate the tenanted premises after expiry of

the notice period. But here in this case neither the

suit was founded, nor framed on the basis of

cause of action following service of notice under

Section 6(4) of the West Bengal Premises Tenancy

Act, 1997. The instant suit not being against the

tenant within the meaning of tenant as defined

under West Bengal Premises Tenancy Act, 1997,

the defendant/O.P.is not entitled to get any

protection under Sections 7(1) and 7(2) of the

West Bengal Premises Tenancy Act. The present

suit essentially being a suit for eviction of a

trespasser, which is very much maintainable in

the manner in which it was framed or rather

founded where there is no scope of application
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under Section 7(1) and 7(2) of the West Bengal

Premises Tenancy Act.’

16. Upon considering the nature of the suit and

the judicial decisions relied it will appear that the

Learned Trial Judge erred in keeping the

application under Section 7(1) and 7(2) of West

Bengal Premises Tenancy Act 1997 for

consideration with the preliminary issue when the

said applications are not maintainable. Thus the

order passed by the Learned Civil Judge (Senior

Division) 3rd Court at Alipore in Ejectment Suit no-

26 of 2021 should be modified. Hence the

applications under Section 7(1) and 7(2) of the

West Bengal Premises Tenancy Act 1997 filed in

Ejectment Suit No-26 of 2021 before Learned Civil

Judge Senior Division 3rd Court at Alipore stands

dismissed as not maintainable. However, the

order of Learned Trial Judge in framing the issue

as to whether the defendant is a tenant under the

plaintiff or trespasser in respect of the suit

premises is affirmed. The said issue shall be

decided in accordance with law.

12. Perusal of the impugned order would

indicate that the learned Trial Court has fallen

into error by reaching to the conclusion at the
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preliminary stage that right to stay in the suit

property in favour of the opposite

party/defendant as per definition of Section

2(h) of the West Bengal Premises Tenancy Act.

13. The Court considers that in view of Section 7 of

the West Bengal Premises Tenancy Act a petition

filed by the opposite party/defendant under

Section 7(1) and (2) of the West Bengal Premises

Tenancy Act were not maintainable in the

present proceeding, as the eviction was not filed

on any of the grounds mentioned in Section 6 of

the West Bengal Premises Tenancy Act, 1996.

The present suit has been filed for eviction

against the alleged trespasser. The learned Trial

Court should have framed a preliminary issue

regarding the status of the opposite

party/defendant in the suit property and could

return the finding only after giving both the

parties an opportunity of leading the evidence.

14. In view of the discussion made above the Court

considers that the present order is not

sustainable under the law .

15. This petition is allowed.

16. Urgent Photostat certified copy of this

order, duly applied for, be given to the parties
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upon compliance of all usual requisite

formalities.

(Dinesh Kumar Sharma, J.)