A decree of eviction passed by the Civil Judge having jurisdiction, in a suit for eviction filed under Section 6 of the West Bengal Premises Tenancy act  is appealable under Section 96 of the A Civil Procedure Code 

Calcutta High Court In  Tapas Biswas Vs. Shyama Prosad Ghosal  (2008)4CALLT455(HC)]

(A) whether any appeal lies against an order of eviction of a tenant passed under Section 6 of the West Bengal Premises Tenancy Act, 1997 or not and in the event the answer is in the affirmative, then what will be the forum for such appeal?

If the provision of Section 6 of the said Act the it stood prior to the amendment of 2005 is considered, then the only authority which was authorised to pass an order of eviction against a tenant under the said Act, was the controller.

Section 43 of the said Act provides that an appeal shall lie from the final order of the controller to such Tribunal as the State legislature may, by law, provide:Provided that until a Tribunal is so provided, an appeal from the final order of the Controller lie to the High Court.

49. Thus, Section 43 of the said Act makes it clear that the order of eviction which was passed by the controller under Section 6 of the said Act prior to its amendment effected in 2005, is appealable before the Tribunal constituted under the West Bengal Land Reforms and Tenancy Tribunal Act, 1997.

50. Situation became very much complicated when the provision of Section 6 of the said Act was repeatedly amended, i.e. once in 2005 and thereafter in 2006. By the amendment of 2005 the expression ‘Controller’ appearing in Section 6 of the said Act was substituted by the expression ‘the Civil Judge having jurisdiction’. Again in 2006 Section 6 of the said Act was further amended and thereby the expression ‘except on an application made to him by the landlord in the prescribed manner’ was substituted by ‘except on a suit being instituted by such landlord’.

51. By those two amendments the jurisdiction of the Controller to pass an order of eviction on an application made to him by the landlord in the prescribed manner was taken away and a different forum was created for trial of the eviction proceeding as indicated above. The provision contained in Section 6 of the said Act as it stands now makes it clear that the Civil Judge having jurisdiction was vested with the exclusive power to pass a decree for eviction against a tenant in a suit instituted by the landlord on any of the grounds as mentioned therein.

52. Even though the provisions of Section 6 of the said Act was successively amended once in 2005 and thereafter in 2006, but no corresponding amendment was made in the provision of Section 43 of the said Act. No other provision was also introduced in the said Act making provision for an appeal against the decree passed by the Civil Judge having jurisdiction in any forum. As such, the only conclusion, which can be arrived at by this Court that the decree for eviction passed by the Civil Judge having jurisdiction in a suit for eviction under Section 6 of the said Act is not appealable under Section 43 of the said Act.

53. But, in this context, two questions will crop up immediately. Firstly, where a landlord filed an application for eviction against his tenant before the controller under Section 6 of the said Act before the amendment of 2005 came into operation but ultimately got a decree for eviction from the Court of the Civil Judge having jurisdiction after the amendment of 2005 and 2006 came into operation, then will the tenant lose the right to challenge such a decree before any appellate forum because of the subsequent amendment? The other question which will crop up is that if the landlord gets a decree for eviction against his tenant by the Civil Judge having jurisdiction in a suit under Section 6 of the said Act after the amendment of 2005 came into operation, then can the tenant challenge the said decree in appeal before any appellate forum?

54. In fact, if the entire scheme of the West Bengal Premises Tenancy Act, 1956 is considered, then it will be found that even in the said Act no provision was made for challenging any decree passed in an eviction suit before any forum. As such, confusion was earlier created as to whether a decree passed in an eviction suit under Section 13 of the said Act is appealable or not. The said dispute was ultimately resolved by a decision of this Hon’ble Court in the case of Ganesh Chandra Dutta v. Chunilal Mondial and Anr. reported in : AIR1972Cal150 wherein it was held that the expression ‘decree’ in the West Bengal Premises Tenancy Act. 1956 has the same meaning as that of the ‘decree’ as defined in Section 2(2) of the Code of Civil Procedure. As such, it was held therein that:

Under Section 96 of the Civil Procedure Code save as otherwise expressly provided in the body of the Code or by any other law for the time being in force an appeal shall He from every decree passed by any Court exercising original jurisdiction to the Court authorized to here the appeals from the decision of such Courts. There is nothing in the West Bengal Premises Tenancy Act limiting or affecting such right of appeal against a decree passed in a suit for recovery of possession.

55. Accordingly, it was held in the said decision that the order of eviction passed by the City Civil Court is appealable before the High Court. A confusion may again arise as the said decision was given in the context of a decree passed by the City Civil Court inasmuch as Section 8 of the City Civil Court’s Act itself provides that an appeal shall lie to the High Court from every decree passed by the City Civil Court and sub Section 6 of Section 29 of the West Bengal Premises Tenancy Act provides that the provision of Civil procedure shall apply to all suits and proceedings referred to in Section 20 except suit and proceeding which lie to High Court. If these two provisions are taken into consideration, then apparently an impression may grow that only in case of eviction decree passed by the City Civil Court appeal lies to High Court. But the said confusion may again be removed with reference to the discussion made in paragraph 5 in the said decision of Ganesh Chandra v. Chunilal wherein a Privy Council decision in Adaikappa Chettiar v. Chandra Sekhar Thevar was relied upon to show that where a legal right is in dispute and the ordinary Courts of the country are seized of such disputes, the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorized by such rules notwithstanding that the legal right arises under a special statute which does not in terms confer a right of appeal.

56. In fact, the views which were expressed by the Privy Council in the aforesaid case was reiterated in a subsequent decision of the Hon’ble Supreme Court in the case of Deepchand and Ors. v. Land Acquisition Officers and Ors. reported in : [1994]1SCR530 .

57. The significance of the use of the expressions such as ‘Civil Judge having jurisdiction,’ ‘suit’, ‘decree’ in the amendments of the West Bengal Premises Tenancy Act, 1997 in 2005 and in 2006, cannot be lost sight of, inasmuch as these expressions were all introduced in the said amendments without defining those expressions in the Act itself. In the absence of any special meaning given to those expressions by defining them differently in the Act itself, this Court will have no other alternative but to hold that those expressions convey the same meaning with which we are ordinarily familiar. When the detailed procedure for conduct of such suits before the Civil Court has not been laid down in the Act itself, this Court has no hesitation to hold that the ordinary rules of procedure which are applicable to the Civil Suit, are applicable to the suit and/or proceeding under Section 6 of the said Act before the Civil Judge. As sueh, the provision relating to appeal and/or the forum of appeal which is applicable to civil suit before the Civil Court will apply mutatis mutandis in case of suit for eviction under the said Act.

58. On consideration of the aforesaid facts and circumstances, this Court holds that a decree of eviction passed by the Civil Judge having jurisdiction, in a suit for eviction filed under Section 6 of the said Act after the amendment of 2005/2006, is appealable under Section 96 of the A Civil Procedure Code and the forum of appeal will be selected as per Section 21 of the Bengal Agra and Assam Civil Courts Act, 1887.