Calcutta High Court (Appellete Side)
Gita Devi Marulia vs M/S Asansol Medical Centre on 7 August, 2015
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Siddhartha Chattopadhyay
C.O. No. 1793 of 2013
Gita Devi Marulia
Vs.
M/s Asansol Medical Centre
For the Petitioners : Mr. Prabal Kumar Mukherjee, Sr. Adv.,
Mr. Hiranmay Bhattacharyya
Mr. Rajdeep Bhattacharya
For the Opposite Parties : Mr. Srijib Chakroborty
Heard On : 20.07.2015, 04.08.2015.
C.A.V. On : 04.08.2015
Judgment Delivered On : 07.08.2015
SIDDHARTHA CHATTOPADHYAY, J.
This instant revisional application under Article 227 of the Constitution of India depicts a very tragic story of the petitioner/plaintiff. In the learned Court below she got an ex parte decree. The present opposite party/defendant filed an application under Order IX Rule 13 for setting aside the said ex parte decree before the learned Court below, which was rejected by the learned Court concerned. Feeling aggrieved at it the present opposite party/defendant filed miscellaneous appeal before the Learned Civil Judge (Senior Division) Asansol bearing Miscellaneous Appeal No. 9 of 2011 and they lost the case. They moved before the Hon'ble Court and filed a revisional application which was also dismissed. Up to this stage the petitioner/plaintiff was successful.
2. In 1994 the petitioner/plaintiff had filed a Title Execution Case bearing No. 12 of 1994. By order dated 11.02.2013 the Learned Civil Judge (Junior Division) 1st Court, Asansol has dropped the execution case holding that the decree is in executable.
3. Challenging the said finding of the Learned Court below the petitioner/plaintiff has come before this Court for her redress. Learned Counsel appearing on behalf of the petitioner has submitted that the order of the learned Court below has got no basis, as the learned Court below failed to appreciate the position of law. According to him, the reason given by the learned Court below is such that the petitioner/plaintiff prayed for a declaratory suit as well as a permanent injunction restraining the defendant Nos. 1 and 2 from entering into and making any construction in the 'B' schedule property but the petitioner/plaintiff did not pray for recovery of 'khas' possession in the plaint. He submits that the learned Court below could have given consequential relief i.e. 'recovery of khas possession'.
4. Learned Counsel appearing on behalf of the petitioner/plaintiff has taken me to Section 33 of Specific Relief Act and submitted that the said section ought to have been given effect to. According to him, it cannot be laid down as a general rule that merely because 'recovery of khas possession' has not been prayed for so no relief be granted. He added that Court is at liberty to mould relief if the said right is available to him.
5. Learned Counsel appearing on behalf of the opposite party vehemently objected to such submission and specifically stated that Section 34 of Specific Relief Act is clearly a bar for granting such relief unless 'recovery of khas possession' is prayed for specifically in the plaint. Apart from the prayer portion of the plaint there is no whisper even in the plaint that she was ever dispossessed. On the contrary, prayer for 'recovery of khas possession' in Execution petition indicates that she was never in possession. So as per Section 34 of Specific Relief Act, she ought to have prayed for a decree for 'recovery of khas possession' also. Non-mentioning of 'recovery of khas possession' is virtually a death blow to the petitioner. After delving into the legal issue, I am of the view that Section 33 of Specific Relief Act has got no application here. On the contrary, Section 34 of Specific Relief Act is applicable.
6. Therefore, I am of the view that this ill-omened lady plaintiff has no relief in the eye of law, although she is not the architect of her misfortune. This revisional application is dismissed.
7. Urgent certified photocopy of this Judgment and Order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Siddhartha Chattopadhyay, J.) A.F.R./N.A.F.R.