Calcutta High Court (Appellete Side)
Snandy vs (Dismissed) on 20 April, 2016
Author: Soumen Sen
Bench: Soumen Sen
1 20.04.2016 CO 1115 of 2016 Court No. 05 Item No. SL-18 Shree Ram Gupta & Anr.
snandy Vs. (DISMISSED) Subrata Kumar Samanta & Ors.
Mr. S.P. Roy Chowdhury, Senior Advocate Mr. Asit Baran Rout, Advocate Mr. A.K. Chowdhury, Advocate Mr. Tuhin Subhra Rout, Advocate ... For the Petitioners Mr. Biswajit Basu, Advocate Mr. Souradipta Banerjee, Advocate Mr. Amaresh Kumar Dhar, Advocate Mr. Subhajit Mullick, Advocate ... For the Opposite Parties After a decree for eviction has been affirmed by the Hon'ble Supreme Court, an application filed by the plaintiff- decree-holder for execution of the decree is now being resisted by filing an application under Section 47 of the Code of Civil Procedure. The principal ground for resisting the execution was some statements and averments made in the amended application and the insistence of the plaintiff that the plaintiff has two married sisters and rooms would be required for their accommodation. It was stated that and whenever they visit the property there is shortage of space and for that purpose the plaintiff would also be required a room.
However, the reasonable requirement as it appears is based on requirement of the rooms for and the requirement of the family of the plaintiff, which consists of the plaintiff, his wife and two children. The Trial Court proceeded on the basis that the plaintiff requires the suit premises for his business and also for the family. The Trial Court recorded a finding that the business of the plaintiff could not be expanded due to shortage of space inasmuch as the defendant no. 1 has an alternative accommodation and for the purpose of his business he did not require a garage.
The finding arrived at by the Trial Court with regard to the reasonable requirement of the premises was not based on the requirement of and two sisters. The appellate Court affirmed the said decree. The Hon'ble Supreme Court 2 dismissed the Special Leave Petition of the petitioner.
Mr. S.P. Roy Chowdhury, learned Senior Counsel, appearing in support of the applicant submits that the plaintiff has committed perjury in stating that he require the suit premises for two married sisters when the fact remains that one of the sisters died as early as in the year 2005 and the said amendment was not incorporated in order to mislead the Court. The plaintiff did not change his stand and continued with the same averments before the Hon'ble Supreme Court.
Mr. Roy Chowdhury relied upon the off-quoted judgment of the Hon'ble Supreme Court in the case of S.P. Chengalvaraya Naidu (dead) by LRs Vs. Jagannath (dead) by LRs. & Ors. reported in (1994)1 SCC 1 which reiterated the principle "fraud unravels everything" and if an advantage is obtained by practising fraud on Court, the Court has the power to pass appropriate orders even in a collateral proceeding in order to nullify the advantage obtained by reason of exercising fraud on Court.
The said judgment would have been relevant if it appears that the Trial Court was persuaded to grant reasonable requirement on the ground that there are two married sisters and for their accommodation, the plaintiff requires the suit property. Although the said ground was in the plaint but the suit was decreed not on that basis.
The decree in favour of the plaintiff is not on the basis that the plaintiff requires the property for their sisters as well. Since the plaintiff has not obtained any advantage on the basis of the said averment and the suit was not decreed on that basis, it cannot be said that the decree was obtained by fraud.
Under such circumstances, this Court finds no reason to interfere with the impugned order.
The revisional application stands dismissed. However, there shall be no order as to costs.
3(Soumen Sen, J.) 4