JUDGMENT
Susanta Chatterji, J.
1. The present devisional application has been filed by the petitioner/defendant challenging Order No. 201, dated 16.2.87 passed by the learned Munsif, 3rd Court at Alipore in Title Suit No. 95 of 1978. By the impugned Order the learned Munsif has disposed of the application filed by Sm. Chapalabala Dutta, wife of defendant No. 1 since deceased, under Sections 17(2) and 17(2A) of the West Bengal Premises Tenancy Act. The learned Munsif has found that the defendant No. 1 during his life time filed an application under Section 17(2) of the said Act and the said application was rejected by Order No. 24, dated.13.7.72. From the record it further transpired before the learned Munsif that by Order No. 112, dated 25.5.79 the defence against delivery of possession was struck out and being aggrieved by the said Order the defendant No. 1 filed a revisional application being C.R. No. 3138 of 1979. During the pendency of the said case the defendant No. 1 died leaving behind his widow, namely, the present petitioner, and three daughters as his heirs and legal representatives and they have been substituted in the Suit as defendant No. l(a) to l(d) accordingly. Thereafter the defendant No. l(a) entered appearance and filed a petition under Sections 17(2) and 17(2A) of the West Bengal Premises Tenancy Act seeking relief as mentioned therein. Considering the facts and circumstances of the case, the learned Munsif has concluded that the Suit was not maintainable and the substituted defendants cannot be permitted to agitate the same matter once again as the Order No. 24, dated 13.7.72 is still in force and the same is binding, on the substituted defendant. Accordingly the petition filed by the substituted defendant under Sections 17(2) and 17(2A) of the said Act was rejected. Being aggrieved the said defendant/petitioner has come to this Court.
2. Mr. Bagchi, learned Advocate appearing for the petitioner, has mainly argued that the definition of ‘tenant’ as provided in Section 2(h) of the West Bengal Premises Tenancy Act is very clear, inasmuch as, the substituted defendant has every right available to him to seek relief in the manner as provided in the statute itself. For better appreciation, the said definition of tenant is quoted herein below :
” ‘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 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,, but shall not include any person against whom any decree or Order for eviction has been made by a Court of competent jurisdiction”.
3. From the said definition Mr. Bagchi has developed his argument by drawing the attention of the Court to the definition of tenant as indicatedabove that an heir of a tenant, who is brought on record, is entitled to seek all reliefs as provided under the provisions of the West Bengal Premises Tenancy Act. In support of his contention he has referred to a decision reported in 91 CWN 792 (Shefali Addya v. Sunil Kumar Mondal). Sankar Bhattacharyya J. was pleased to decide that a statutory tenancy, like a contractual tenancy, is heritable and after the death of a statutory tenant all his heirs inherit the estate of a deceased tenant and are to be substituted in place of the deceased tenant. If any one of them is left out, the Suit will fail for non-joinder of necessary party. It will further appear from the said reported decision that on an ultimate analysis of the amended definition of the term ‘tenant’ in Section 2(h) of the West Bengal Premises Tenancy Act, it appears that all the heirs of the statutory tenant, who dies during the pendency of the Suit for ejectment against him, inherit the estate of the deceased tenant as his legal representatives. All such heirs must be substituted in place of the deceased tenant as his legal representatives under Order 22 Rule 4 of the Code of Civil Procedure and if any one of them is left out, the Suit will fail for non-joinder of necessary party. As legal representatives of the tenant, it is open to all the heirs to defend the Suit by claiming that there having been no determination of the, tenancy by any valid notice to quit their right to remain in occupation and enjoyment of the Suit premises as lessees continue or on grounds other than those based on the Act as are permissible in law. It is further held that in view of the amended definition of Section 2(h) the protections and privileges available to a tenant under the Act, to wit, under Sections 17(2), (2A), (4), Section 17A, etc., will be available to only those heirs of the statutory tenant as were ordinarily residing with him at the time of his death and are, as such tenants, as contemplated by Section 2(h) of the Act.
4. Thus relying upon the said decision Mr. Bagchi has pressed further that within the definition of tenant the substituted defendant can seek reliefs and is otherwise entitled to privileges and protection as provided under Sections 17(2) and (2A) of the Act independently irrespective of previous Order suffered by the defendant No. 1 /tenant.
5. With all seriousness Mr. Bagchi has argued that in a beneficial legislation like that of the West Bengal Premises Tenancy Act, the definition of tenant has been liberally construed and the substituted defendant comes within the definition clause of tenant squarely and his right to obtain privileges and protections are not circumscribed by any defect and/or sufference by the original defendant/tenant and the present petitioner should be found entitled as a tenant to seek relief after his or her appearance in the manner as envisaged under Sections 17(2) and (2A) of the said Act.
6. Having considered the submissions made by Mr. Bagchi in support of the petitioner and considering the materials on record, this Court finds that it is true that the tenancy is heritable, be it contractual tenancy or statutory tenancy, the substituted defendant being the heir of the original defendant inherits the estate and he or she can defend his or her right in accordance with law; but at the same time it has got to be remembered that a substituted defendant has a limited and/or narrow right, inasmuch, as, he has to relay the race and he starts to defendant his or her case where the original tenant ended. In this regard, this Court has delivered a judgment earlier on 3.12.87 in CO. No. 3380 of 1987 (Sm. Sujata Sengupta & Ors v. Sm. Sarnabala Mondal). This Court found in the said judgment that it is true that within the definition clause of Section 2(h) of the West Bengal Premises Tenancy Act, a substituted defendant would be deemed to be a tenant being entitled to the rights and privileges; but the conception of heir of deceased defendant/tenant is also limited in terms of the definition that those persons ordinarily residing with the tenant. Apart from such definition these substituted defendants cannot place on record any defence beyond the right claimed by the original defendant in his defence. The original defendant/tenant filed an application under Sections 17(2) and (2A) of the West Bengal Premises Tenancy Act and the same was rejected. Thereafter his defence against delivery of possession was struck out. Long after his demise the substituted defendants stepped into the shoes of the original defendant to contest the Suit. The said substituted defendant cannot be permitted to file in independent application under Section 17(2) of the said Act beyond the scope of the defence of the original defendant and beyond all the period of limitation. This Court found that the substituted defendants have no right to file an independent application under Section 17(2) of the said Act where the previous defendant filed an application and was not successful in accordance with law. Considering the ratio of the decision it has to be found out as to whether the present defendant/petitioner irrespective of the defence of the original defendant being struck out can come forward and raise a defence at all to the defence set out by the original defendant and whether independently the substituted defendant can file a fresh application under Sections 17(2) and 17(2A) of the said Act. This Court has discussed the proposition elaborately in the case of Sm. Sujsta Sengupta (supra) and from the materials on record this Court does not find any merit in the revisional application to find out that regard being had to the background of the case a fresh application may be filed by the substituted defendant to obtain relief in the manner as prayed for. Accordingly, the revisional application is rejected without any Order as to costs.
7. Let a copy of this Order be sent to the Court below as early as possible.