Calcutta High Court (Appellete Side)
4168/2011 on 20 January, 2012
Author: Soumen Sen
Bench: Soumen Sen
1 25 20.1.12
C.O. 4168 of 2011 jb.
Mr. Asis Chandra Bagchi, Mr. Prabir Kr. Misra
- For the petitioners Mr. G. P. Shaw
- For the opposite parties In a suit instituted in 1995, an application was taken out on 2nd December, 2011 by the petitioners for modification of the issue no. 2 and framing of an additional issue which was rejected by the learned Court below by an order dated 15th December, 2011. The said order is the subject matter of challenge in this revisional application.
In the suit, the plaintiffs claim recovery of khas possession of the rooms more fully described in schedule 'C' and 'D', permanent injunction and other reliefs. The schedule 'C' and 'D' is described as room nos. 20 and
23. In the plaint the plaintiffs admitted that one Rajendra Shaw was a tenant in respect of two rooms being room nos. 21 and 22 on the ground floor of the said premises more fully described in schedule 'A' and schedule 'B' and further alleged that one Rajesh Kumar Jain was another tenant in respect of two rooms being 2 room nos. 20 and 23 on the ground floor of the said premises more fully described in schedule 'C' and 'D'. The cause of action against the proforma defendant is that he suffered an ex parte decree on 13th October, 1993 and in spite thereof did not vacate the suit premises. The plaintiffs put the said decree into execution, but due to strong resistance could not recover the said two rooms and ultimately on 12th December, 1995 the plaintiffs got possession of room nos. 20 and 23 through Court bailiff.
Deterred by the said decree, the defendants (this time the proforma defendant has been left out) alleged to have aided and abated by their supporters to take forcible illegal possession of room nos. 20 and 23 with the help of the local councillor and thereafter on 13th September, 1995 they were successful in illegally dispossessing the plaintiffs from room nos. 20 and 23 and hence the plaintiffs filed the suit for recovery of possession in respect of the room nos. 20 and 23.
In the written statement the defendants alleged in paragraph '7' that the statement made by the plaintiffs in paragraph '2' of the plaint is correct and the defendants admitted that Rajendra Shaw, the father of the defendants was a tenant in respect of room nos. 21 and 22, but the defendants had proceeded a little further by alleging that insted of two the original defendants was a tenant in respect of three rooms. The 3 third room is described in the written statement as "one without any number". It is further alleged that in respect of the said three rooms monthly rent are paid at the rate of Rs.9, Rs.9 and Rs.150/- respectively. It was further alleged by the defendants that sometimes in 1995, the plaintiffs on the basis of some false and fraudulent decree obtained against some fictitious persons tried to dispossess the defendants from the suit premises. The defendants resisted such attempts and as a retaliatory measure the plaintiff instituted eviction proceeding in respect of room nos. 21 and 22 and such suit is pending. The defendants denied the description of schedule of the room as furnished in schedule 'C' and 'D'. Subsequently, in the suit there has been an amendment of the plaint consequent upon admission of majority by one of the parties to the suit. The plaintiffs before commencement of the trial suggested eight issues , the first and second of which relate to room nos. 20 and 23 which are reproduced hereinbelow:
"1.... Whether the plaintiffs obtained a decree for ejectment against one Rajesh Kumar Jain in respect of room nos. 20 and 23 on the ground floor of premises no. 6B, Temple Street, in ejectment Suit No. 486 of 1992.
2.... Whether on 12.9.1995 the plaintiffs got delivery of possession in respect of the said room No. 20 and 23 on the ground floor of premises No. 6B, Temple Street, Calcutta - 700 072 with the help of police in Ejectment Execution Case No. 4 28/1994."
On the basis of the said suggested issues, the Court below framed five issues. Although issues suggested by the plaintiffs, there was no mention of Rajendra Shaw, but it appears while framing issues, the Court below framed issue no. 2 in the manner following:
"2) Was Rajendra Shaw the tenant under the plaintiff?
This has resulted in an application being filed for modification of issue by the defendants inter alia, on the ground that the same is an oblivious mistake since from the plaintiffs it is apparent that the plaintiffs have admitted that Rajendra Shaw was a tenant in respect of room nos. 21 and 22 and accordingly, the said issue needs to be modified. It was argued that in fact the plaintiffs have suggested the issues that room nos. 20 and 23 relate to Rajesh Kumar Jain which is an oblivious mistake. But one thing remains to be addressed. The heirs of the defendants claimed tenancy in respect of one unnumbered room and the onus is on the defendants to establish that the said defendants are tenants in respect of such unnumbered room. It may be contended by the plaintiffs that this unnumbered room is in fact, forms part of schedule 'C' and 'D' of the plaint and they had obtained a decree against Rajesh Kr. Jain in respect of such schedule property and who according 5 to the defendants is a fictitious person and such decree is obtained by practising fraud.
On the basis of the pleadings and in view of the provisions of Order XIV Rule 3 of the Code of Civil Procedure, I feel that the issue no. 2 should be reframed as under:
1) Was Rajendra Shaw a tenant under the plaintiffs in respect of one room without any number as alleged in paragraph '7 of the written statement?
and the following additional issue:
2) Was the ex parte decree in ejectment suit no. 486/92 binding upon the defendants?
These issues are in addition and modification to the issues already framed by the learned trial Court. I have only modified issue no. 2 as originally framed and have framed one additional issue in this order.
Attention of this Court has been drawn to an earlier order passed by this Hon'ble Court in which there was a direction of day to day hearing of the suit. I agree with the submission of the learned advocate appearing on behalf of the plaintiffs/opposite parties that such application has been filed at a belated stage in an 6 attempt to delay the hearing of the suit as directed by this Court by its order dated 5th May, 2011. Since the purpose of framing an issue is for proper disposal of the suit, in the interest of justice I have allowed introduction of additional issue and modification of one existing issue. However, this Court makes it clear that the learned Court below would make all endeavour to implement the order dated 5th May, 2011 in its true spirit and should not allow any unnecessary adjournments to either of the parties. Since the suit is of 1995 and the plaintiffs are anxious about possession of their properties being dispossessed as alleged in the plaint and consequent whereupon the suit was instituted under Section 6 of the Specific Relief Act, the entire purpose would be frustrated if a suit of such kind is not heard out expeditiously and disposed of as early as possible. In view thereof, this Court also reiterates the directions earlier passed by this Court on 5th May, 2011 and requests the learned Court below to dispose of the said suit as early as possible and preferably within a period of eight months from the date of communication of this order. It would be open for either of the parties to pray for adducing evidence consequent upon modification of issue no. 2 and introduction of one additional issue. Such prayer, if any should be made on or before 3rd February, 2012 so that on 6th February, 2012 when the matter is originally fixed, the Court may proceed to take such evidence as may be necessary consequent upon the modification of the issue made by 7 this order.
The petitioners are directed to pay cost assessed at Rs.2,000/- which is to be paid by them within a period of 7 days from date. In the event of default, the instant order would stand recalled and the trial Court would proceed on the basis of the original issues already framed and decide the matter accordingly. However, in the event such cost is paid, the petitioners would be entitled to adduce additional evidence if they so desires as already indicated in this order.
The revisional application accordingly succeeds and the order of the trial Court is set aside.
( Soumen Sen J.}