Calcutta High Court (Appellete Side)
Subrata Kumar Chowdhury vs Pradip Mukherjee on 27 April, 2016
IN THE HIGH COURT AT CULCUTTA
(CIVIL REVISIONAL JURISDICTION)
C.O. No. 4188 of 2015
Subrata Kumar Chowdhury
-Vs.-
Pradip Mukherjee
Present : The Hon'ble Mr. Justice Siddhartha Chattopadhyay
For the Petitioner : Mr. Arijit Bardhan.
For the Opposite Party : Mr. Dilip Kumar Mandal.
Heard On : 14.03.2016, 29.03.2016,
31.03.2016.
.
C.A.V. On : 31.03.2016.
Judgment Delivered On : 27.04.2016.
Siddhartha Chattopadhyay, J.:
This civil revisional application is directed against the judgment and decree dated 28th January, 2015 passed by the learned Civil Judge, (Junior Division) 4th Court at Alipore, District - (South) 24 Parganas in Title Suit No. 833 of 2010. Feeling aggrieved and dissatisfied with the said order of the learned Court below the plaintiff/petitioner has come before this Court with a prayer for setting aside the impugned order and to pass a decree for recovery of khas possession in respect of one bed room on the ground floor at Premises No. 1/27 Rupchand Mukherjee Lane, Calcutta-700025. The petitioner herein being plaintiff had instituted an ejectment Suit being No. 478 of 2008 before the learned Civil Judge, (Junior Division) 4th Court at Alipore, against the present opposite party/defendant for recovery of khas possession on the ground that the present defendant had acquired a flat at Premises No. 88, at present 11, Beltala Road Police Station-Bhowanipore, Kolkata-700025. He got an ex parte decree on 23.01.2009. As in spite of getting the decree that defendant/opposite party did not vacate the suit premises, he had to file an ejectment execution case bearing No. 1 of 2010 and obtained possession of the said premises through the Court bailiff on 2nd March, 2010. Soon after getting the possession, the defendant/opposite party with his henchmen and police dispossessed him and trespassed into the said premises by breaking open the padlock forcibly. In such circumstances, he has again filed a suit under Section 6 of the Specific Relief Act for recovery of khas possession.
2. Before the Court below the defendant/opposite party contended that the present petitioner/plaintiff had trespassed into the suit premises with some anti-socials and broke the padlock of main entrance road and thrown out his articles on the road. He had lodged a written complaint at Bhowanipore Police Station. The police arrested the plaintiff/petitioner and thereafter, the defendant/opposite party has got back his possession.
3. It appears from the LCR that the learned Trial Court has recorded evidence of both parties and dismissed the said execution case on the ground that the bailiff report is not a public document.
4. Having heard the learned Advocates appearing on behalf of the parties, it is crystal clear that the plaintiff/petitioner is the absolute owner of the suit property and the defendant/opposite party had been paying Rs.115 as monthly rent and subsequently it was enhanced. It is not disputed that the plaintiff had filed ejectment suit bearing No. 478/2008 and got a decree from a competent Court. It is also not disputed that the said Court in connection with ejectment execution case bearing No. 1 of 2010 had directed the bailiff to execute the writ of delivery of possession.
5. It appears from the LCR that the bailiff had been to the suit premises for delivery of possession. The bailiff has also submitted his report before the learned Executing Court. At the time of hearing, the suit bearing Title Suit No. 833 of 2010 the learned Trial Court held that issue writ of delivery of possession is a public document since it is the act of the Court but did not consider the report of the bailiff as a public document, because, according to him, since it is not the act of the Court. Learned Trial Court also wondered that if the delivery of possession through Court bailiff was actually done on 2nd March, 2010 then why on 17.04.2010 the plaintiff as decree holder filed an application before the Executing Court praying for disposal of the execution case on full satisfaction.
6. After hearing both sides, in my humble view, the learned Trial Court was totally confused with the position of law. When a writ of delivery of possession is issued, the report is supposed to be filed before the Court below and on the basis of the said report it was the duty of the Court to pass an order on the basis of the report. It is immaterial whether any application has been filed by the decree holder or not. Admittedly, the writ of delivery of possession was issued by the Executing Court and, therefore, all the matters incidental thereto i.e. follow up of the writ of delivery of possession has to be considered by the Court itself in its proper perspectives.
7. It further appears that the learned Trial Court relied on a decision reported in AIR 2008 Jharkhand Page 82 (Junul Surin @ Junul Munda & Anr., -Vs.- Silas Munda & Ors.). The said judgment relates to delivery of possession of land i.e. restoration of land proceeding was there, which is not a public document. But here this was a suit for recovery of possession and admittedly a decree of eviction was passed by the competent Court. Since in terms of the decree the defendant/opposite party did not comply with the order of the learned Trial Court, the plaintiff/petitioner had no option left with except to put the decree into execution. Therefore, in my humble view, the ruling on which the learned Trial Court relied is not applicable in this case. It is trite law that when the Court bailiff acted upon the direction of the Court and it was done in accordance with law, there is no plausible reason to raise any doubt as to the genuinity and veracity of such execution. The learned Trial Court held that the report of the bailiff i.e. Dakhali Parwana is not a public document. Accordingly, it seems to me that the learned Trial Judge has proceeded himself under a misconception of law and accordingly, the impugned judgment passed by the learned Trial Judge is liable to be interfered with. The defendant had taken possession with the aid of police and outsiders, and it seems to me as illegal. It was not the duty of the police to restore possession and his such re-entry into the suit property itself speaks that it was not in accordance with due process of law and so he cannot take any advantage of his own wrong.
8. In the result, the civil revisional application is allowed but without cost. Order of the learned Trial Court is hereby set aside. The petitioner is entitled to get back his possession forthwith.
9. Let a copy of this judgment be sent to the learned Court below for his information and taking necessary action in accordance with law.
10. 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.