Calcutta High Court (Appellete Side)
The Royal Government Of Bhutan vs Trot Shoe Co. Pvt. Ltd on 17 August, 2010
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE C.O. No. 320 of 2008 Present :
The Hon'ble Mr. Justice Prasenjit Mandal
The Royal Government of Bhutan.
Versus
Trot Shoe Co. Pvt. Ltd.
For the petitioner: Mr. S. P. Mukherjee,
Mr. R. S. Banerjee.
For the opposite party: Mr. Buddhadeb Ghosal,
Mr. K. K. Boral.
Heard On: 10.08.2010 & 11.08.2010.
Judgement On: August 17, 2010.
Prasenjit Mandal, J.: This application is the instance of the plaintiff and is directed against the order dated December 13, 2007 passed by the learned Civil Judge (Senior Division), Second Court, Alipore in Title Suit No.59 of 1999 thereby rejecting an application of the plaintiff for reconsideration of its order dated May 18, 2007 thereby passing an order of analogous trial of the three suits.
The defendant/opposite party was a tenant under the plaintiff in respect of a premises in suit being the flat no.55 at 1A, Ballygunge Circular Road at a rental of Rs.1200/- per month 2 according to English calendar month. The defendant defaulted in payment of rent and as such the plaintiff terminated the tenancy of the opposite party by a notice to quit and thereafter the plaintiff filed the Title Suit No.59 of 1999 for ejectment against the defendant/opposite party. The plaintiff/petitioner filed another suit bearing Title Suit No.396 of 1998 in the Court of the learned Civil Judge (Senior Division), Second Court, Alipore against one Javed Mohammad. That was also transferred to the Court of the learned Civil Judge (Senior Division), Second Court, Alipore. The defendant filed one suit being the Title Suit No.363 of 1998 before the learned Civil Judge (Junior Division), Second Court, Alipore. Subsequently, the said suit was also transferred to the Court of the learned Civil Judge (Senior Division), Alipore. By an order dated May 18, 2007, the learned Civil Judge (Senior Division) directed that these three suits shall be heard analogously. While disposing of the C.O. No.3954 of 2005, Hon'ble Justice P. K. Ray directed for earlier disposal of the Title Suit No.59 of 1999 within a period of six months from the date of order, i.e., from November 22, 2005. Now, the grievance of the plaintiff/petitioner is that because of the analogous trial, the disposal of the suit for ejectment is being delayed and for which he filed the application dated December 13, 2003 which was rejected by the order impugned. Being aggrieved, the plaintiff/petitioner has come up with this application. 3
Mr. Mukherjee, learned Advocate appearing on behalf of the plaintiff/petitioner contends that the Title Suit No.59 of 1999 has been filed for ejectment and there is urgency in passing appropriate orders in this suit. This Suit is at the stage of examination of the P.Ws. and in fact cross-examination of the P.W.1 on behalf of the plaintiff has been done in part. At that stage, on the prayer of the defendant/opposite party, the learned Trial Judge has passed the order for analogous hearing of the three suits. The other Title Suit No.396 of 1998 filed by the plaintiff is for declaration and injunction against one Javed Mohammad. The defendant/opposite party of this application filed the Title Suit No.363 of 1998 for a decree of declaration that the plaintiff is entitled to enjoy its tenancy and also permanent injunction restraining the defendants, their men and agents from interfering with the peaceful possession of the plaintiff in respect of the tenancy at flat no.55 at 1A, Ballygunge Circular Road. Therefore, Mr. Mukherjee contends that parties of the three suits are not same. The reliefs claimed for in the three suits are also not same. The evidence of all the three suits cannot be the same. Mr. Mukherjee also contends that as per order of this Hon'ble Bench dated November 22, 2005, the suit was to be disposed of within six months from the date of the order dated November 22, 2005. Therefore, the order for analogous hearing was not proper but his application for reconsideration was rejected and this 4 causes hardship to the plaintiff. He also contends that the Title Suit No.59 of 1999 is at the stage of cross-examination of the P.Ws. While in other two suits, the issues have not been framed as yet and so they are at the prematured stage for beginning of the trial. So, if any order for analogous trial exists, it will create delay in the disposal of the suit for ejectment. On the other hand, Mr. Ghosal, learned Advocate appearing on behalf of the defendant/opposite party, submits that the order of analogous trial was passed on May 18, 2007 in spite of knowing the order passed by the revisional court in C.O. No.3954 of 2005. The plaintiff did not move to the higher Court against such order. One suit is at the stage of peremptory hearing. The other two suits can well be made ready within a short time and this Court may direct the learned Trial Judge to dispose of the three suits analogously within a short period. In fact, though the revisional court passed the order for disposal of the Title Suit No.59 of 1999 within six months. That time has expired. So, at this stage, if necessary steps are taken, the three suits can well be disposed of within a short time.
Mr. Ghosal also submits that the order dated November 22, 2005 passed by Hon'ble Justice P. K. Ray in C.O. No.3954 of 2005 is not mandatory at all and this is directory and such type of orders is passed in many suits/cases and such suits/cases cannot 5 be disposed of within the stipulated time. So, the order passed by the Hon'ble Court is not mandatory but directory in nature.
Therefore, the only point that emerges for decision is as follows:-
Whether the impugned order can be sustained? Upon hearing the submission of the learned counsel for the parties and on going through the materials on record, I find that the Title Suit No.59 of 1999 is for recovery of possession on the ground of default. That suit is ready for peremptory hearing and in fact, the P.W.1 was examined in chief and he was cross-examined in part. At that time, the defendant filed the application for analogous hearing on September 15, 2006. That application was allowed by the order dated May 18, 2007. Admittedly, the other two suits have not reached even at the stage of peremptory hearing. Issues have not yet been framed, as submitted by the learned Advocate for the petitioner. So, the other two suits are prematured for the purpose of peremptory hearing at present. The nature of the three suits are completely different. The Hon'ble Court has given specific direction in C.O. NO.3954 of 2005 for disposal of the Title Suit No.59 of 1999 within a period of six months from November 22, 2005.
If the three suits are allowed to proceed analogously, various complications may arise. There may be situation where various analogous petitions may be required to be filed for 6 decision and for that reason the trial of the Title Suit No.59 of 1999 would be hauled up.
Mr. Mukherjee has relied upon the decision of Chitivalasa Jute Mills Vs. Jaypee Rewa Cement reported in (2004) 3 SCC 85 and submits that order of analogous trial may be sustained where the same set of evidence may be adduced by the parties in the three suits and where the issues are common. In the instant suit and the other two suits, issues cannot be the same. Parties are not also the same and so the question of same set of evidence does not arise at all. In consideration of the nature of the other two suits, I am of the opinion that issues of the three suits shall also be common.
This being the position, in view of the decision reported in Chitivalasa Jute Mills (supra), I am of the view that the order of analogous trial was not proper and if it is allowed to be continued it may cause unnecessary harassment to the plaintiff/petitioner in getting appropriate reliefs against a defaulter. Moreover, there is a direction of the Hon'ble Court for disposal of the suit within a period of six months from November 22, 2005.
Mr. Ghosal has referred to the decisions of AIR 1960 SC 941 para 8 and AIR 1964 SC 999 para 10 and submits that if the Title Suit No.59 of 1999 decided earlier, it may prejudice the other parties because the question of res judicata would come. Such 7 proposition, I am of the view cannot be accepted for the reasons just stage above that parties are quite different and nature of the three suits are not same. There is the only similarity that the three suits relate to the same flat no.55 and except this common flat number there is no similarity of the three suits.
Having considered the above situation and the entire aspect of the matters, I am of the view that if the order impugned is allowed to be continued, it may create injustice to the plaintiff/petitioner. Moreover, the order of the Hon'ble Court for disposal would not be honoured. The submission of Mr. Ghoshal that the order of the Hon'ble Court is not at all mandatory but a directory and in fact six months have already passed long time back, so, within a short time, the three suits can be disposed of within a specific period, I hold, cannot be accepted in the instant situation, for the reasons discussed above. I am, therefore, of the view that the impugned order cannot be sustained. The point is, thus, answered. It must be set aside for the ends of justice.
Accordingly, the revisional application is allowed. The impugned order dated December 13, 2007 passed in Title Suit No.59 of 1999 by the learned Civil Judge (Senior Division), Second Court, Alipore is set aside. The learned Trial Judge is directed to dispose of the Title Suit NO.59 of 1999 separately. As six months have already passed long time back since the date of 8 passing of the order of this Hon'ble Court, the learned Trial Judge is directed to dispose of the Title Suit No.59 of 1999 within a period of four months from the date of communication of the order.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)