Calcutta High Court (Appellete Side)
Kesharshyam Construction (P) Ltd vs Siddheswar Banerjee & Ors on 17 August, 2023
17.8.2023
12,13
Ct. no. 652
sb
C.O. 3049 of 2018
Kesharshyam Construction (P) Ltd.
Vs.
Siddheswar Banerjee & Ors.
With
C.O. 3050 of 2018
Santosh Banerjee
Vs.
Siddheswar Banerjee & Ors.
Mr. Shuvasish Sengupta
Mr. Balarko Sen
Mr. Sourath Dutt
Ms. Subhra Das ...for the petitioner
Mr. Aniruddha Chatterjee
Mr. Abirlal Chakraborty
Ms. Madhuchanda Singha
...for the Opposite parties
Being aggrieved by the order dated 4th August,
2018 passed by learned Civil Judge, Junior Division, 2nd
Additional Court at Alipore in Misc. Case no. 13 of 2015
arising out of Ejectment Execution Case no. 1 of 2015, in
connection with compromise decree passed in Ejectment
Suit no. 40 of 2006, the present application under Article
227 of the Constitution of India has been preferred
separately by plaintiff and defendant/tenant of said
Ejectment Suit no. 40 of 2006. Plaintiff/landlord of
Ejectment Suit no. 40 of 2006 namely M/s. Kesharshyam
Construction preferred C.O. 3049 of 2018 and
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defendant/tenant of aforesaid Ejectment Suit namely
Santosh Banerjee preferred C.O. 3050 of 2018 against the
self-same order.
The petitioners' case is that in or about 2006, the
aforesaid landlord filed suit for eviction of the opposite
party no. 2 of C.O. 3049 of 2018 and petitioner of C.O.
3050 of 2018, being Ejectment Suit no. 40 of 2006.
During pendency of the said suit, aforesaid parties to the
suit made an amicable settlement and in pursuant to that
settlement, the suit was disposed of under Order XXIII
rule 3 of the Code of Civil Procedure and the suit was
decreed on compromise in terms of the compromise
petition filed by the parties to the said suit. Subsequently,
the landlord i.e. petitioner of C.O. 3049 of 2018 and
opposite party no. 2 of C.O. 3050 of 2018 as decree-
holder filed execution case before the court below being
aforesaid Ejectment Execution case no. 1 of 2015. In or
about 2015, the opposite party no. 1 herein in both the
applications namely Siddheswar Banerjee filed an
application under Order XXI rules 97, 98, 99, 100 and
101 read with Section 151 of the Code of Civil Procedure
being Misc. case no. 13 of 2015 arising out of aforesaid
Ejectment Execution case no. 1 of 2015. In the said Misc.
case, the aforesaid opposite party no. 1 challenged the
legality and validity of the decree and contended that the
decree passed in Ejectment suit no. 40 of 2006 is not
maintainable since the decretal property is under the
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possession and occupation of the opposite party no. 1
herein with the status of joint tenant. He further
contended in that Misc. case as petitioner that the
petitioner being partner of the business of M/s. Café has
been possessing and enjoying the decretal property with
the status of joint tenant under the landlord who is
petitioner of C.O. 3049 of 2018 and opposite party no. 2
in C.O. 3050 of 2018 and accordingly, the decree passed
by the court below on 19.1.2015 has no enforceability
and is not binding upon the petitioner, since it is a
fraudulent and collusive decree.
During pendency of the said Misc. case, the
opposite party no. 1 herein filed an application under
Order XI rule 14 read with Section 151 of the Code
praying for direction upon the petitioners of C.O. 3049 of
2018 and C.O. 3050 of 2018 to allow opposite party no. 1
herein to inspect the counter-part of the rent receipt and
also rent receipts issued since 1983 till 2001, since the
plaintiff/landlord alleged in the plaint that tenant is
defaulter in payment of rent since April, 2001. Be it
mentioned that opposite party no. 1 herein contended in
his application that landlord became owner of suit
property by purchase in the year 1983, when he sent
letter of attornment to both tenants.
The petitioners herein filed respective written
objections to the said application under Order XI rule 14
of the Code and the learned court below after hearing
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both the parties, passed the order impugned wherein the
court below directed the petitioners of both the revisional
applications to produce the counter part of the rent
receipts and rent receipts issued by it since 1983 and
fixed the matter on 8th September, 2018 for production of
documents.
Learned counsel for the petitioner submits that
learned court below has exceeded its jurisdiction in
passing the order impugned and has caused grave
irregularity in passing the said order which suffers from
perversity. In fact, learned court below has no jurisdiction
in allowing the application and to direct the petitioners to
produce the counter part of the rent receipt or the rent
receipts issued by it since 1983. Learned court below
failed to appreciate that the burden of proof of the
allegation made in the Misc. case is upon the opposite
party no. 1 and not upon the petitioners herein. He
strenuously argued that the power under Order XI rule
14 can be exercised only where the documents are in
possession of any of the parties. Here, the petitioners
have specifically denied that the petitioners are not in
possession of the counter part of the rent receipt or the
rent receipt issued by it since 1983 and as such, the
court below should not have directed the petitioners to
produce those documents. Accordingly, the petitioners
have prayed for setting aside the impugned order by filing
aforesaid two separate applications. In this context, they
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relied upon a judgment passed by a coordinate Bench of
this court in India Foils Ltd. Vs. The 5th Industrial
Tribunal, West Bengal and Others. reported in AIR
1972 Cal 308.
Learned counsel for the opposite party no. 1 of
both the applications submits that the
petitioner/plaintiff/decree-holder in his objection against
the application under Order VII rule 14 admitted that the
documents relied on by the plaintiff in the said suit, was
under the custody of Kunjbehari Tibrewala, Ex Director of
the company who passed away on 31.12.2010 and said
Kunjbehari Tibrewala used to keep all original documents
in his custody and after his death, the present director of
the company could not be able to trace out old
documents in spite of their best effort. Furthermore, due
to shifting of office of company at a different address, it is
not possible for the landlord to produce the counter part
of rent receipts from 1983 onwards. The petitioner of C.O.
3050 of 2018 in his objection has only stated that since
long period has already been passed and the petitioner
became aged and suffering from various old age ailments
could not trace old documents in spite of his best effort
and as such it is not possible for him to produce rent
receipt since 1983.
It is further submitted that Order XI rule 14
prescribes two things that the documents must be
relevant for the adjudication of the real dispute between
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the parties and the petitioners herein were in possession
or power of those documents. Since the petitioners herein
have admitted in their objection that concerned
documents were in their possession so the court below
has committed no mistake in directing the petitioners
herein of both C.O. 3049 of 2018 and C.O. 3050 of 2018
to produce those documents and there is no perversity in
finding that those documents are relevant for the purpose
of adjudication of the present dispute. In such view of the
matter, opposite party no. 1 of both the applications
prayed that the order impugned does not call for
interference.
I have considered the submissions made by both
the parties. In view of the wordings of order XI, Rule 14
and also ratio laid down in India Foils Ltd. (supra), the
position of law is very clear that the order XI rule 14 can
be made applicable only if two pre-conditions as
contemplated by Rule 14 are satisfied that the documents
must be in possession or power of the party against
whom the order is made and secondly, the documents
must relate to the matter in question in the dispute. In
the order impugned, the court below has specifically
observed that the question raised by opposite party no. 1
herein regarding his right and interest over the decretal
property and whether or not that was a joint tenancy of
partnership firm and therefore, the rent receipts are the
only documents which are to be looked into. He further
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held that as per provision under Order XI rule 14, it is
deemed necessary to bring those rent receipts in the
record.
The petitioners herein in their written objections
have nowhere denied that those counterfoil rent receipts
or rent receipts were never in their possession but they
have only submitted that since a long period has already
been passed and/or since Ex director who used to keep
all original documents in his custody, passed away on
31.12.2010and/or due to shifting of office room and/or due to old age, they could not able to trace out old documents and it is not possible for either of them to produce the documents as sought for.
In such view of the matter, since it is not the case of either of the petitioners that the counter part of the rent receipts or rent receipts from 1983 and onwards were never in their possession nor they have denied anywhere about existence of such documents at any point of time, I find no perversity in the order impugned nor it can be said that court below has exceeded his jurisdiction in passing the order impugned, which calls for interference by this court while exercising supervisory jurisdiction under Article 227 of the Constitution of India.
In view of above, the prayer made by the petitioner is lacking merit. C.O. 3049 of 2018 and C.O. 3050 of 2018 are accordingly, dismissed.
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Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all requisite formalities.
(Ajoy Kumar Mukherjee, J.)