Calcutta High Court (Appellete Side)
Ambika Hindi Balika Vidyalay vs Awadhesh Prasad on 22 August, 2013
Author: Murari Prasad Shrivastava
Bench: Murari Prasad Shrivastava
1 22/8/2013 AB (23) C. O. 3677 of 2012 Ambika Hindi Balika Vidyalay Vs Awadhesh Prasad Mr. Abhishek Banerjee ... For the Petitioner.
The present revisional application has been filed assailing the order dated 31st July, 2012 passed by the learned Civil Judge (Junior Division), Second Court at Howrah in Title Suit No. 74 of 2011 whereby and whereunder learned Civil Judge, Junior Division, Howrah dismissed the application filed by the present petitioner / defendant in the said suit under Section 151 of the Code of Civil Procedure on contest with costs.
Learned Advocate for the petitioner submits that earlier the petitioner had filed a suit being Title Suit No. 177 of 1996 against the present opposite party, who is the plaintiff in the present suit, praying for declaration of their tenancy right as well as permanent and mandatory injunction and the same was decreed on contest.
He further submits that the present opposite party, who was the defendant in that suit, preferred appeal, which was dismissed and subsequently a second appeal was preferred before this court, which was summarily dismissed.
2
Learned Advocate further submits that the tenancy right was declared in that suit in respect of six rooms as described in the schedule to the plaint of that suit. However, the opposite party / plaintiff filed the present suit for eviction describing the tenanted portion as three pucca rooms and one hall for which this suit is not maintainable and accordingly, an application under Section 151 of the Code of Civil Procedure was filed, but the learned Court below dismissed the same on contest.
Going through the records and particularly the impugned order passed by the learned Court below, I do not find any infirmity and/or illegality in the impugned order passed by the learned Court below particularly when the learned Court below rightly held that where the defendant is a lawful tenant in the suit premises, the plaintiff has every right to institute a suit for eviction under any of the clauses under Section 6 of the West Bengal Premises Tenancy Act. The inherent powers, which the present petitioner / defendant tried to invoke before the learned Court below, is not at all applicable in the facts and circumstances of this case. However, the petitioner / defendant is at liberty to raise the point of non-description of the tenanted portion, at an appropriate stage of the suit and by way of appropriate application.
Under such circumstances, the present revisional application is dismissed and the impugned order passed by the learned Court below dismissing the application of the petitioner / defendant under Section 151 of the Code of Civil Procedure is affirmed.
There shall be no order as to costs.
3Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Murari Prasad Shrivastava, J.)