“Civil Court ‘Usurped’ Jurisdiction: Calcutta HC Sets Aside Eviction Decree Where Thika Tenancy Question Belonged Exclusively to Controller”

High Court at Calcutta (Appellate Side), per Justices Sabyasachi Bhattacharyya and Uday Kumar, delivered a significant ruling squarely addressing the jurisdictional bar under the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001. The Court allowed the landlords’ appeal but—critical to the outcome—ultimately dismissed the eviction suit itself for want of civil court jurisdiction once the Thika Controller’s field was engaged, holding that the “eviction between a Thika tenant and a Bharatia lies exclusively with the Thika Controller” and that the trial court’s decree was a nullity. The judgment clarifies that even stringent non-compliance with Sections 7(1)/(2) of the West Bengal Premises Tenancy Act, 1997 cannot eclipse a threshold jurisdictional objection: the court must first determine maintainability and the correct forum before proceeding on merits.

“Jurisdiction Is a Threshold Bar—Not a Footnote to Final Relief”

The Division Bench opened by stressing the hierarchy of issues. The suit under Section 6 of the 1997 Act had resulted in a decree of eviction on “reasonable requirement” and “default,” and the trial court even decided the landlord-tenant relationship. But the defendant had flagged the Thika tenancy question—already pending before the Thika Controller during trial—and later placed the certified Controller’s order (dated April 18, 2024) adjudicating him a Thika tenant. The High Court held that Sections 5(3), 8(2), read with Section 21 of the 2001 Act, express an ouster of civil court jurisdiction whenever the question is whether the land is Thika land or a person is a Thika tenant/Bharatia; hence the civil court should not have adjudicated the Thika issue or the eviction claim at all. The Court observed: “There cannot be any manner of doubt that the jurisdiction of deciding whether a property is a Thika Tenancy and deciding an eviction suit between a Thika Tenant and a Bharatia lies exclusively with the Thika Controller.” The bar, the Bench emphasized, is a subject-matter bar that “hits at the root” of authority and must be determined “at the commencement and not at the conclusion” of the enquiry.

The Court ruled that the civil courts are barred from deciding whether property is Thika land and from entertaining eviction disputes between a Thika tenant and a Bharatia; the appeal was allowed, the remand and the trial decree were set aside, and the ejectment suit was dismissed for want of jurisdiction—setting a precedent that reinforces the Thika Controller’s exclusive domain.

The landlords sued for eviction under the 1997 Act on default, reasonable requirement, and nuisance/annoyance. The tenant did not file applications under Sections 7(1) or 7(2). The trial court framed issues, including landlord-tenant relationship, rejected the Thika plea, and decreed eviction on reasonable requirement and default. The first appellate court later remanded, opining that non-filing under Section 7(2) was not necessarily fatal where the tenancy relationship was not admitted. The landlords then approached the High Court. During this appellate journey, the tenant produced the Thika Controller’s certified order in Misc. Case No. 14 of 2013 (dated April 18, 2024), adjudicating him to be a Thika tenant with respect to the suit property. This development became dispositive.

The pivotal questions were jurisdictional and procedural. First, could the civil court adjudicate Thika tenancy and eviction when the 2001 Act assigns these matters to the Controller and when Section 21 bars civil‐court interference? Second, how does Section 7 of the 1997 Act operate when the defendant disputes the very status of “tenant”? Third, what is the effect of the Controller’s subsequent adjudication on the pending appeal?

The Court underscored the “express bar” of jurisdiction in Section 21 of the 2001 Act, read with Sections 5(3) and 8(2), concluding that the Thika Controller has exclusive authority to decide whether land is Thika land and whether a person is a Thika tenant or Bharatia, and to deal with eviction between Thika tenant and Bharatia. The Bench further drew a careful distinction in the statutory language: Section 7 of the 1997 Act addresses obligations of a “tenant,” not a “defendant,” which means where the very jural relationship is disputed, the court must first decide that relationship before invoking the harsh consequence of striking out defenses. As the Court put it, “the language used is ‘tenant’ and not ‘defendant’,” requiring the court, before applying Section 7(3), to decide the landlord-tenant relationship and maintainability.

The Court held that the trial judge erred twice over. First, by not passing an order striking out the defense “prior to proceeding with the hearing of the suit,” even while later holding the tenant was not entitled to protection under Section 7(4). The Bench distilled the statute’s scheme: “an order has to be passed by the court striking out the defence… and such order has to be passed ‘prior to proceeding with the hearing of the suit’.” Conducting a full merits trial without first resolving maintainability inverted the statutory sequence.

Second, and more fundamentally, the trial court “usurped” the Thika Controller’s jurisdiction by deciding the Thika tenancy question and entering an eviction decree despite sections 5(3), 8(2), and 21 of the 2001 Act. Once the Thika question was raised and a proceeding was pending before (and later decided by) the Controller, the civil court lacked subject-matter authority. The Bench emphasized that such a jurisdictional defect renders the civil decree a nullity: “The civil court did not have jurisdiction at all to decide the suit, including the issue of Thika tenancy, and to pass a decree of eviction between a Thika tenant and a Bharatia.”

The Court also clarified the relevance of the Controller’s April 18, 2024 order introduced at the appellate stage. Invoking Order XLI Rule 27(1)(b) CPC, the Bench received and relied on the certified order as necessary for complete adjudication because the “cardinal dispute” in the appeal centered on Thika tenancy. With that adjudication now “all-important,” Section 21’s bar was reinforced: no civil court could “call in question” an order passed under the 2001 Act.

In rejecting the landlords’ reliance on decisions emphasizing mandatory Section 7(1)/(2) compliance and automatic strike-out under Section 7(3), the Bench harmonized the precedent with the older Division Bench ruling under the 1956 Act’s analogue to hold that when the jural relationship is itself in dispute, the court must first decide it; otherwise, Section 7’s machinery (triggered by “tenant”) cannot be pressed against a “defendant” who contests being a tenant at all. The Court further explained that the 2001 Act, not the repealed 1981 Act, governs the forum and bar; Section 27 of the 2001 Act does not save a landlord’s “right to evict” under the 1981 Act because the Thika statutes never conferred any such eviction right in the first place—the source of eviction rights is the rent law or general law, and in any event, forum allocation under the 2001 Act controls when Thika status is in play.

Finally, the Bench found the first appellate court’s remand had become “academic” after the Controller’s decision and, therefore, unnecessary. The proper course was to set aside both the remand order and the trial decree and to dismiss the ejectment suit for want of jurisdiction.

The High Court has emphatically re-centered jurisdictional discipline in landlord-tenant litigation with possible Thika dimensions. When the Thika tenancy question arises, civil courts must step aside in favor of the Controller; they cannot adjudicate merits, much less decree eviction between a Thika tenant and a Bharatia. The ruling also clarifies the procedural rigor of Section 7 of the 1997 Act: before a defense can be struck out, the court must pass a prior order and, where status is disputed, determine the jural relationship and maintainability at the threshold. With the Controller’s adjudication in place, the civil decree was a nullity, the remand superfluous, and the suit rightly dismissed.

“Thus, we are of the clear opinion that the learned trial Judge erred in law in entertaining and adjudicating the suit on merits, thereby usurping the jurisdiction of the Thika Controller… The judgment of the trial court was not merely illegal, but it was a nullity.”

Date of Decision: 26.08.2025