Calcutta High Court (Appellete Side)
Smt. Pratima Dutta vs Smt. Nilima Seal on 20 February, 2009
1 C.O. No.3949 of 2008 Smt. Pratima Dutta Versus Smt. Nilima Seal Mr. Sourav Sen .....For the petitioner Mr. Kaushik Mondal Mr. Dilip Kr. Dhar Mr. Debarshri Mukherjee ....For the Opposite Party This application under Article 227 of the Constitution of India is filed by the petitioner/defendant challenging the order dated December 1, 2008 passed by the Judge 5th Bench (Judge in-charge of the Court of the learned Judge 4th Bench) Presidency Small Causes Court at Calcutta in Ejectment Suit No.2155 of 2000.
The fact of the present application, in brief, is that the opposite party/plaintiff filed the above Ejectment Suit before the learned Judge 4th Bench Presidency Small Causes Court at Calcutta for recovery of possession and consequential relief. Learned Judge 4th Bench decreed the suit on contest.
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Being aggrieved and dissatisfied against the said judgment and decree the defendant preferred an appeal before the City Civil Court Vide Title Appeal No.98 of 2007. Learned Judge 12th Bench City Civil Court at Calcutta set aside the judgement and decree passed by the learned Trial Court on contest and remanded the same for hearing.
The present petitioner/defendant filed an application under Order 39 Rule 7 of the Code of Civil Procedure praying for appointment of advocate commissioner. Learned Trial Judge rejected the same on contest.
Being aggrieved by and dissatisfied against the said order the petitioner/defendant has filed the present application for setting aside the same on the following grounds that the learned Trial Judge failed to apply the settled principles of law and the said order is required to be set aside and the application under Order 39 Rule 7 of the Code of Civil Procedure should be allowed as the learned Trial Judge failed to consider the true purports of the order of the remand passed by the learned Appellate Court. 3 Learned Advocate on behalf of the petitioner/defendant pointed out that the order dated 01.12.2008 is liable to be set aside as the same had material irregularity in completely misleading, misconstructing and misappropriating of the order of the learned Judge 12th Bench City Civil Court and learned Judge gave the direction to remand the matter for fresh adjudication and as such the present application under Order 39 Rule 7 of the Code of Civil Procedure will be allowed otherwise the defendant being the tenant will lose his right as per written statement.
Mr. Kaushik Mondal learned Advocate appearing on behalf of the opposite party/plaintiff pointed out that the order passed by the learned Trial Judge on the basis of the application Order 39 Rule 7 of the Code of Civil Procedure was justified as there was no direction from the learned Lower Appellate Court in a manner for deciding issue No.5, 6 and
10. The present application is liable to be dismissed. If we look into the relevant judgement page 14 of the application it is seen 4 that learned Appellate Court observed "on scrutiny of the conclusion arrived at by the learned Trial Judge under issue 5, 6 and 8 I do not find which premises was required by the plaintiff for what purpose."
Learned Appellate Court gave the direction to the learned Trial Court to rehear the argument of both parties and dispose of all the issues of both the suits in accordance with law. As such the said order passed by the learned Appellate Court is nothing but a limited scope of the learned Trial Court to dispose of the same from the stage of argument. As such there is no scope to interfere in the order dated 01.12.2008 passed by the learned Trial Court for rejection of the application under Order 39 Rule 7 of the Code of Civil Procedure filed in the above Ejectment Suit. There is no infirmity or illegality in the said order passed by the learned Trial Judge dated 01.12.2008.
The present application fails and it is dismissed.
There is no order as to costs.
5C.O. No.3950 of 2008 is disposed of accordingly.
Urgent xerox certified copy be supplied to the party, if applied for.
(TAPAS KUMAR GIRI, J.)