Shri Mohammed Aslam v. Smt. Urmila Kishen

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** CO/19/2025 Shri Mohammed Aslam Vs.

Smti. Urmila Kishen Mr. M. K. Thakur ... for the petitioner Mrs. Anjili Nag, Sr. Adv.

Mr. Vishal Kumar Biswas ... for the respondent March 24, 2025 [AKB] Item No.1 1.

The present revisional application has been filed, inter alia, challenging an Order No. 33 dated 16th December 2024 passed in Other Execution Case No. 02 of 2022 by the Civil Judge, Junior Division - I, Port Blair, whereby the petitioner's application for stay of execution of the decree, and the application under regulation 25(3) of the Andaman and Nicobar Islands Rent Control Regulation, 1964 (hereinafter referred to as the said Regulation) had been dismissed.

2.

The learned advocate for the petitioner would contend that although, a decree for eviction has been passed on 21st October 2021 against the petitioner in Other Suit No. 66 of 2017, such decree is not executable as there is no provision in the said Regulation for eviction of a tenant occupying commercial establishment. By placing reliance on the provision of Regulation 13, he would submit that Regulation 13 does

not authorize the Court to pass a decree for eviction of a tenant occupying a commercial establishment.

According to him the aforesaid issue being a jurisdictional issue can be raised and decided by the Court under Regulation 25 (3) of the said Regulation. Having regard thereto, the petitioner had filed an application under regulation 25(3) of the said Regulation for a decision in that regard.

3.

By drawing attention of this Court to the order impugned, the learned advocate would submit that the learned Judge has summarily rejected such application without deciding the issue raised in the application. In such circumstance he prays that the aforesaid order may be set aside and the matter may either be decided by this Court or in the alternative, be remanded back to the learned Court.

4.

Heard the learned advocate appearing for the petitioner and have considered the provisions of Regulation 13 and Regulation 25 (3) of the said Regulation, and have noted that a decree for eviction has already been passed against the petitioner in respect of the suit shop room from where the petitioner had been running the business in the name and style of Shama Gift Centre. I find that questioning the jurisdiction and the competence of the learned Court to pass a decree in respect to the commercial establishment the above application had been filed.

Such application has been contested by the decree holder by filing a written objection.

5.

From a perusal of the aforesaid written objection it would transpire that the aforesaid issue has already been decided by the learned Court whereupon the decree has been passed and it is the decree holders case that the application under Regulation 25(3) of the said Regulation along with the application for stay of execution has been filed with the object of delaying the execution of the decree.

6.

I find that the learned Judge by the order impugned by taking note of the application filed under Regulation 25 (3) of the said Regulation has considered the same and has noted that the aforesaid issued had already been decided and a decree had been passed thereon.

7.

To test out the contention of the petitioner I have considered the provision of Regulation 25 of the said Regulation. I find that Regulation 25 provides that any Civil Court in the Union Territory of the Andaman and Nicobar Islands which has the jurisdiction to hear and decide a suit for recovery of possession of any premises shall have the jurisdiction to hear and decide any case under this Regulation relating to such premises if it has pecuniary jurisdiction and is otherwise competent to hear and decide such a case under any law for the time being in force. Clause 3 of Regulation 25, inter alia

provides that if any question arises whether any application or other proceeding is a case under this Regulation, the question shall be determined by the Court.

8.

In my view the aforesaid jurisdictional issue ought to have been raised by the petitioner as a defendant in the written statement. If such issue is not raised or is decided against the petitioner subject to the provisions of appeal, as provided in Regulation 26 thereof, such issue can no longer be re-agitated in an execution proceeding as and by way of a defense.

9.

To more fully appreciate the aforesaid provision, Regulation 25 of the said Regulation is reproduced hereinbelow:

"25 (1) Any civil court in the Union territory of the Andaman and Nicobar Islands which has jurisdiction to hear and decide a suit for recovery of possession of any premises shall have jurisdiction to hear and decide any case under this regulation relating to such premises if it has pecuniary jurisdiction and is otherwise competent to hear and decide such a case under any law for the time being in force.

(2) The value of any case under this Regulation for the purpose of the pecuniary jurisdiction of the court, shall be determined by the amount of rent which is or would be payable for a period of twelve months, calculated according to the highest amount claimed in the case.

(3) If any question arises whether any application or other proceeding is a case under this Regulation, the question shall be determined by the court.

(4) Subject to such rules as may be made in this behalf, the court shall, while trying a case under this Regulation, follow as far as may be the practice and procedure of a court of small causes, including the recording of evidence.

(5) For the purpose of this Chapter, a case under this Regulation includes any application or other proceeding under this Regulation and also includes any claim or question arising out of this Regulation."

10.

The petitioner is attempting to use, the provision of Regulation 25(3) of the said Regulation as an application under Section 47 of the Code of Civil Procedure, 1908 in my view, such a procedure is not permissible in law.

11.

Having regard thereto, there can be no doubt that the aforesaid issue can no longer be re-agitated once again in the execution proceeding. In view thereof, the application fails. The same is accordingly dismissed. 12.

There is no order as to costs.

(Raja Basu Chowdhury, J.)