ARCHANA JAISWAL vs KAUSHIK ROY AND ORS.

IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE


Before:
The Hon’ble Justice Hiranmay Bhattacharyya

C.O. 1504 of 2026
Archana Jaiswal
Vs.
Kaushik Roy & Ors.

For the Petitioner : Mr. Subir Banerjee
….. advocate


For the Opposite Parties Mr. Tanmay Mukherjee
:
Mr. Dibyendu Kumar Pal
Mr. Diptyendu Kumar Pal
…… advocates

Reserved on : 08.07.2026

Judgment on : 08.09.2026

Hiranmay Bhattacharyya, J.:-

1. This application under Section 227 of the Constitution of India is at the
instance of the defendant and is directed against a judgment and order
rd
being no. 15 dated 09.02.2026 passed by the learned Judge, 3 Bench,
Presidency Small Causes Court at Calcutta in Ejectment Suit no. 145 of
2024.
2. By the order impugned the application under Section 7(3) of the West
Bengal Premises Tenancy Act, 1997 stood allowed on contest and the
defence of the petitioner against delivery of possession was struck off.
3. The opposite parties herein filed a suit for eviction on the grounds
contemplated under Section 6(1) of the West Bengal Premises Tenancy Act,
1997 against the petitioner herein which is registered as Ejectment Suit no.
145 of 2024. The opposite parties alleged in the plaint that the petitioner is
a defaulter in payment of rent since October, 2023. Petitioner entered
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appearance in the said suit but did not file any application under Section
7(1) and Section 7(2) of the West Bengal Premises Tenancy Act, 1997.
4. Petitioner is contesting the said suit by filing a written statement denying
the material allegations contained therein.
5. Alleging that the petitioner has not complied with the provisions of Section 7
of the West Bengal Premises Tenancy Act, 1997, the opposite parties filed an
application under Section 7(3) of the West Bengal Premises Tenancy Act.
Petitioner contested the said application by filing a written objection.

6. The learned Trial Judge allowed the application under Section 7(3) of the
West Bengal Premises Tenancy Act, 1997 (for short “the 1997 Act”) on the
ground that the petitioner is a defaulter from October, 2023 and has not
complied with the provisions of Section 7 of the 1997 Act.
7. Being aggrieved, the defendant has approached this Court.
8. Mr. Banerjee, learned Advocate appearing for the petitioner submitted that
the petitioner has disputed the landlord-tenant relationship between the
parties. He submitted that when such a dispute has been raised by filing a
written objection to an application under Section 7(3) of the 1997 Act, the
learned Trial Judge ought to have decided the dispute as to the landlord-
tenant relationship between the parties before striking out the defence
against delivery of possession. He submitted that since the petitioner did not
admit the landlord-tenant relationship between the parties, petitioner was
not under a statutory obligation to comply with the provisions under Section
7(1) and Section 7(2) of the 1997 Act.
9. Mr. Banerjee, the learned Advocate for the petitioner placed reliance upon
the decision of the Hon’ble Division Bench in the case of Synthetic Plywood
Industries (P) Ltd. vs. Smt. Manjulika Bhaduri & Others reported at
(1998) 1 CHN 387 and the decision of a co-ordinate bench in Sri Manik Lal
Sett and another vs. Smt. Hira Basu @ Surali Basu & Ors. reported at
(2008) 2 CLJ 675 in support of his contention that if any dispute is raised
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as to the relationship of landlord and tenant between the parties such issue
is to be decided before striking out the defence.
10. Mr. Mukherjee learned advocate appearing for the opposite party seriously
disputed the submissions of the learned advocate for the petitioner. He
contended that the petitioner is a defaulter in payment of rent from the
month of October, 2023. He submitted that the petitioner did not deposit
the arrears of rent before the learned Trial Judge within the time limit
stipulated under Section 7(1) of the 1997 Act. He further submitted that no
application under Section 7(2) of the 1997 Act was filed by the petitioner in
the manner as specifically provided in the 1997 Act. He contended that
since the petitioner failed to deposit the amount as referred to in Subsection
(1) or (2) of Section 7 within the time limit specified thereunder, the
provisions of Section 7(3) of the 1997 Act automatically stood attracted and
the learned Trial Judge was right in striking out the defence against delivery
of possession. Mr. Mukherjee submitted that in the written objection to the
application under Section 7(3) of the 1997 Act, the petitioner for the first
time raised a dispute that there is no landlord-tenant relationship between
the parties. He contended that such a dispute is sham and not a bona fide
one.
11. Heard the learned advocates for the parties and perused the materials
placed.
12. It is the specific case of the petitioner in the written objection to the
application under Section 7(3) of the 1997 Act that the erstwhile owner Smt.
Sheena Panja had shown her interest in selling the property to different
tenants in occupation therein. Petitioner accordingly negotiated and Smt.
Sheena Panja agreed to sale and the petitioner to purchase his occupied
area as per the market price. Smt. Sheena Panja represented to the
occupiers of the property that they need not pay any rental or occupational
charges to her till the sale is completed in favour of the tenant/occupants
including the petitioner. The plaintiff/opposite parties surreptitiously
entered into a fraudulent transfer with the said Sheena Panja. Petitioner
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incurred huge expenses and also advanced substantial sum of money to
purchase the suit premises.
13. Upon a reading of the written objection as a whole it appears to this Court
that the petitioner has disputed the landlord-tenant relationship between
the opposite parties and himself in respect of the suit property.
14. After going through the impugned order this Court finds that non-
compliance of the provisions of Section 7 of the 1997 Act is the only ground
which weighed with the learned trial Judge for striking out the defence
against delivery of possession.
15. The dispute raised by the petitioner as to the landlord-tenant relationship
between the parties to the suit in respect of the suit property has not been
adjudicated upon by the learned Judge prior to striking out the defence
against delivery of possession.
16. The following issue arises for consideration in the civil revision application.
17. If a defendant in a suit under Section 6(1) of the 1997 Act raises a dispute
as to relationship of landlord and tenant between the parties without filing
an application under Section 7(2) of the 1997 Act, whether the Court should
decide such issue before striking out the defence under Section 7(3) of the
1997 Act?
18. More or less identical issues fell for consideration before the co-ordinate
benches as well as the Hon’ble Division Bench in suits filed under the West
Bengal Premises Tenancy Act, 1956 (for short “the 1956 Act”).
19. Section 17(3) of the 1956 Act states that if a tenant fails to deposit or pay
any amount referred to in subsection (1) or subsection (2) within the time
specified therein or within such extended time as may be allowed under
Clause (a) of sub-section(2A), or fails to deposit or pay any instalment
permitted under Clause (b) of sub-section (2A) within the time fixed therefor,
the Court shall order the defence against delivery of possession to be struck
out and shall proceed with the hearing of the suit.
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20. Thus, Section 17(3) of the 1956 Act provides for striking out the defence
against delivery of possession by the Court.
21. In Baidyanath Kundu vs. Sm. Jyotshna Rani Karmakar reported at AIR
1972 Cal 443 , the co-ordinate bench did not accept the contention that a
dispute as to existence of landlord-tenant relationship has to be raised only
by an application under Section 17(2). On the contrary it was held that the
question as to the existence of relationship of landlord and tenant between
the parties may be either decided at the stage of Section 17(3) application
only prima facie and for the purposes of the proceeding under Section 17(3),
leaving it open for a final decision at the time of hearing of the suit, or the
Court may take up that question along with the application under Section
17(3) and decide the two together fully so that the decision on that issue will
be final for purposes of the suit also. The co-ordinate bench held that if a
dispute as to landlord-tenant relationship is raised in an objection to the
application under Section 17(3), the Court cannot strike out the defence
against delivery of possession without deciding the issue as to existence of
relationship of landlord and tenant.
22. Another co-ordinate bench in Nipendra Nath Chakraborty vs. Brojendra
Gopal Sen reported at AIR 1980 Cal 15 held that even on an application
under Section 17(3) it is the duty of the Court to decide the issue as to
whether there is the relationship of landlord and tenant between the parties,
if it is raised.
23. In Calcutta Bonemills & Fertilisers (P) Ltd. vs. Das Organochem (P) Ltd.
reported at (2013) SCC Online Cal 4147 a co-ordinate bench reiterated the
proposition of law that even if a defendant/tenant has not filed an
application under Section 17(2) of the Act, he can certainly raise such issue
as to existence of relationship of landlord and tenant under Section 17(3) of
the 1956 Act and the Court is obliged to determine the same before passing
an order striking out the defence of the tenant.
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24. The Hon’ble Division Bench in Synthetic Plywood Industries (P) Ltd.
(supra), after noting that Section 17 speaks of the obligations of a tenant
and not a defendant held that if a defendant asserts that he is not a tenant
at all under the plaintiff, he is however, under no obligation to file an
application under Section 17(2) of the 1956 Act. But for non-filing of such
an application, a plaintiff may very well come up with an application under
Section 17(3) of the Act for striking out the defence of the defendant on the
ground of non-compliance with the provisions contained in Sections 17(1)
and 17(2) of the Act. The Hon’ble Division Bench reiterated the consistent
view of this Court that if any dispute is raised by a defendant that he is not
a tenant under the plaintiff even without filing an application under Section
17(2) of the 1956 Act, the Court must decide that issue before striking out
his defence on the ground of non-compliance of Section 17(1) or 17(2).
25. In Manik Lal Sett (supra) the co-ordinate bench reiterated the proposition
of law laid down by the Hon’ble Division Bench in Synthetic Plywood
Industries (supra).
26. From the aforesaid discussion it follows that if a dispute as to existence of
landlord-tenant relationship is raised by a tenant in an eviction suit filed
under the provisions of the 1956 Act, the Court is duty bound to decide that
issue before striking out the defence against delivery of possession under
Section 17(3) on the ground of non-compliance of Section 17(1) or 17(2).
27. An issue fell for consideration before the Hon’ble Division Bench in Syed
Khawaja Moin and another vs. Md. Safi Alam reported at 2025 SCC
Online Cal 7031 as to whether the proposition of law laid down in
Synthetic Plywood Industries (supra) would be applicable to a suit for
eviction instituted under Section 6 of the 1997 Act, as the 1997 Act makes
compliance under Section 7(1) and Section 7(2) mandatory. The Hon’ble
Division Bench held that if the defendant takes a stand that he is not a
tenant under the 1997 Act at all, the Court is under an obligation to decide
the issue of landlord-tenant relationship prior to striking out the defence of
the defendant. The Hon’ble Division Bench further noted that such aspect
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neither fell for consideration nor was decided by the Hon’ble Supreme Court
in Seventh Day Adventist Senior Secondary School vs. Ismat Ahmed
and others reported at 2025 SCC Online SC 1696 . The Hon’ble Division
Bench held thus-
“39. However, even proceeding on such premise, the cardinal basis of the
judgment rendered by the Division Bench in Synthetic Plywood
Industries (P) Ltd. (supra) 8 did not change by the amendment of statute.
Just as in Section 17 of the 1956 Act, in Section 7 of the 1997 Act as
well, the language used is “tenant” and not “defendant”. On such
premise, the Division Bench held in Synthetic Plywood Industries (P) Ltd.
(supra) that if a ‘defendant’ takes a stand disputing the landlord-tenant
relationship itself, he is not obliged to make the deposit or file an
application under Section 17(1) or Section 17(2), since under the said
Section, it is only a ‘tenant’, and not a ‘defendant’, who is to make such
deposit. The position would have been otherwise if the language used in
the Section was “defendant”, in which case, there would be no option for
the defendant not to make the applications or make the deposits.
40. On such score, which was the very basis of the Division Bench
judgment, the language of Sections 17 of the earlier statute and that of
Section 7 of the current statute do not differ, since both use the
expression “tenant” and not “defendant”. If a defendant takes a stand,
under either the 1956 Act or the 1997 Act, that he is not a “tenant” at all
under the plaintiff, it is open to him to take the risk of not filing even an
application under Section 7(2) of the 1997 Act or Section 17(2) of the
1956 Act, but simply raise the dispute as to landlord-tenant relationship.
9
In such case, both as per Synthetic Plywood Industries (P) Ltd. (supra)
10
and M/s. Calcutta Bonemiles & Fertilisers (P) Ltd. (supra) , it would be
the incumbent obligation of the court, before striking out the defence, to
decide the landlord-tenant relationship prior to such striking out of
defence. It has to be kept in mind that although the 1997 Act would
govern the inter se relationship between the Thika tenant and the
Bharatia, there is a qualitative difference between a “landlord” and
“tenant” under the 1997 Act and a “Thika tenant” and a “Bharatia”
under the 2001 Act, since in the two cases, the forum deciding the
eviction suit would be different.
41. Section 7(3) of the 1997 Act also uses the language “tenant”, on
whose failure to comply with sub-sections (1) or (2) of Section 7, the
rigour of Section 7(3) would follow and the defence against delivery of
possession would be struck out. However, if the defendant takes a stand
that he is not a “tenant” under the 1997 Act at all and such objection is
upheld by the court, the penalty of striking out of the defence would not
follow as well. This makes it mandatory for the court, even at the stage of
passing an order under Section 7(3), to decide the issue of landlord-
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tenant relationship prior to striking out the defence of the defendant.
Such aspect neither fell for consideration nor was decided by the
Supreme Court in the judgment of Seventh Day Adventist Senior
Secondary School (supra).”
(emphasis supplied)
28. In the light of the aforesaid discussion, this Court holds that if the
defendant raises a dispute as to existence of landlord-tenant relationship
between the parties under the 1997 Act even at the stage of passing an
order under Section 7(3) of the 1997 Act, it is mandatory for the Court to
decide the issue of landlord-tenant relationship prior to striking out the
defence against delivery of possession. If the defendant asserts that he is not
a tenant under the plaintiff, he is under no obligation to comply with the
provisions of Section 7(1) or 7(2).
29. Now turning back to the facts on hand, the petitioner has taken a specific
stand that he is not a tenant under the opposite parties under the
provisions of the 1997 Act. In view thereof, it was incumbent upon the
learned Trial Judge to decide the issue of landlord-tenant relationship
between the parties to the suit prior to striking out the defence against
delivery of possession.
30. As observed hereinbefore that the learned Trial Judge has not decided the
dispute of landlord-tenant relationship but has struck out the defence
against the delivery of possession only on the ground that there has been
non-compliance of the provisions of Section 7(1) and 7(2) of the 1997 Act on
the part of the petitioner. This Court holds that the learned trial judge failed
to exercise its jurisdiction in not considering the contention of the petitioner
and striking out the defence against delivery of possession without deciding
the dispute raised by the petitioner.
31. For all the reasons as aforesaid this Court is inclined to interfere with the
impugned order. The impugned order is accordingly set aside. CO No. 1504
of 2026 stands allowed. The application under Section 7(3) of the West
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Bengal Premises Tenancy Act, 1997 stands restored to the file of the learned
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Judge, 3 Bench Presidency Small Causes Court at Calcutta.
32. The learned Trial Judge is requested to decide the dispute raised by the
petitioner in the written objection to the application under Section 7(3) of
the 1997 Act after affording an opportunity of hearing to the respective
parties and dispose of such application as expeditiously as possible without
granting any unnecessary adjournments to either of the parties. Before
parting it is, however, made clear that this Court has not entered into the
merits of the claim made out by the petitioner in the written objection to the
application under Section 7(3) of the 1997 Act and the learned Trial Judge
shall be free to decide such application in accordance with law.
33. Urgent photostat certified copies, if applied for, be supplied to the parties
upon compliance of all formalities.

(HIRANMAY BHATTACHARYYA, J.)

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