Calcutta High Court (Appellete Side)
Smt. Pratima Dhar Roy & Ors vs Swati Nirmal Pvt.Ltd. & Ors on 3 May, 2012
Author: Soumen Sen
Bench: Soumen Sen
1 03.05.12
Basudev C.O. 1215 of 2012 Smt. Pratima Dhar Roy & Ors.
VS Swati Nirmal Pvt.Ltd. & Ors.
Mr. P. C. Sen, Mr. Ranjan Bachawat, Mr. Suvashis Sengupta, Mrs. Sreya Basu Mallick
- For the Petitioners.
Mr. Soumak Bera
- For the Opposite Parties.
This revisional application is at the instance of the persons who are claiming to be the joint tenants along with one Gauri Sengupta.
The principal grievance of the petitioners is that although the petitioners are joint tenants but an eviction proceeding was initiated by the petitioners against Smt. Gauri Sengupta only and the others have been left out. Accordingly, any decree passed in the said proceeding is not binding on the said petitioners. While the petitioners claimed to be in possession of the suit property on March 27, 2012 they were dispossessed by the bailiff who visited the said premises armed with the order of the Court to execute the decree passed in Ejectment Suit being no. 455 of 2010 on September 19, 2011.
The petition was affirmed by one constituted Attorney who has affirmed some of the paragraphs pertaining to certain factual situation as true to his knowledge.
2In that petition it was claimed that most of the joint tenants are residing abroad and two caretakers and employees of the petitioners used to maintain the said premises regularly and to make all arrangements as to when the said petitioners used to visit the said premises.
Mr. P. C. Sen , learned senior Advocate appearingwith Mr. Ranjan Kumar Bachawat, appearing on behalf of the petitioners submits that the plaintiffs were aware of the fact that they were other joint tenants but deliberately omitted to implead the petitioners and accordingly, the said decree is not executable at least against the present petitioners. It is not in dispute that the present petitioners are close relations of Smt. Gauri Sengupta.
It appears that the erstwhile landlady viz. Smt. Aloka Mukherjee informed Smt. Sumana Roy and Gauri Sengupta on July 14, 2005 that she had sold the entire property in favour of the petitioners and the said two ladies were requested to co-operate in handing over peaceful possession of the ground floor to the directors of the plaintiffs. However, prior thereto, there are some documents to show that rent receipts were issued in the joint names of Smt. Pratima Dhar Roy, Sujit Sengupta, Sushanta Sen, Smt. Keka Sen, Smt. Sumana Roy and Gauri Sengupta.
It was argued that the petitioners are joint tenants and they cannot be dispossessed without due process of 3 law. Accordingly, the petitioners resisted the said execution proceeding by filing an application under Order XXI Rule 99 & 100 read with Section 151 of the Code of Civil Procedure for recovery of possession from the decree holder. A subsequent application was filed under Section 151 of the Code of Civil Procedure for an order of temporary injunction restraining the decree holders, their men, agents, assigns and servants from creating any third-party interest in respect of the suit premises. The said application was considered on March 30, 2012 but the interim order was refused on the ground that the said decree has already been executed.
It is submitted that since the plaintiff refused to accept rent, the rent was tendered in the Office of the Rent Controller and some challans showing deposit made in November, 2005 and for some subsequent period have been produced before this Court.
At the time of admission of the revisional application, a protective order was passed in view of the fact that they were joint tenants, prima facie, the petitioners made a claim of joint tenancy and there are some challans which suggest that the petitioners are joint tenants under Smt. Aloka Mukherjee, the erstwhile landlady.
After attornment of tenancy in favour of the joint tenants, it is alleged that they tendered the rent to the new landlord who refused to accept the said rent. This Court is, further, informed that Smt. Gouri Sengupta has 4 filed an application under Order IX Rule 13 of the Code of Civil Procedure for recalling of the decree.
Mr. P. C. Sen, learned senior counsel appearing for the petitioners submits that there are valuable articles and artifacts lying in the said tenanted premises and they are required to be preserved and protected till the disposal of the said application. The said schedule on which a reliance has been placed was however not before the learned trial Judge.
Mr. Soumak Bera, learned counsel appearing for the decree holder submits that the bailiff report would show that Madan Mohan Maity and Ajit Sharma removed all the articles at the time of delivery of possession through bailiff.
In view thereof, such claim that any article presently is lying in the suit premises is incorrect. However, without going into the correctness of such submission, it is for the benefit of both the parties that an inventory should be made in respect of the articles presently lying in the suit premises so as to avoid future complications in the matter.
The said inventory of articles under the supervision of a special officer would not prejudice either of the parties. The opposite party-decree holders denied that any such article presently lying in the suit premises. Without prejudice to the rights and contentions of the parties, the learned trial Judge before whom the 5 proceeding is pending may appoint a special officer for the purpose of making an inventory of the articles and/or movables claimed to have been lying insides the premises in terms of the schedule annexed to the revisional application.
Learned counsel appearing for the petitioners submits that the articles and/or movables as mentioned in schedule at page 37 belonged to them.
At this stage, it is not required to go into the veracity of the claim made in the said petition save and except that the special officer would make an inventory of the articles lying in the premises and file a report before the learned trial Judge in a sealed cover to be considered by him at the time of disposal of the application filed under Order XXI Rule 99 & 100 read with Section 151 of the Code of Civil Procedure.
The order of injunction passed on April 5, 2012 would continue till the disposal of the application filed under Order XXI Rule 99 & 100 read with Section 151 of the Code of Civil Procedure.
Learned trial Judge is directed to hear and dispose of the said application as expeditiously as possible without granting any unnecessary adjournment to either of the parties.
6Photostat plain copy duly countersigned by the Assistant Registrar (Court) be given to the parties upon compliance of necessary formalities.
(Soumen Sen, J.)