Calcutta High Court (Appellete Side)
Sri Nanda Dulal Bhattacharjee vs Sri Gopal Chandra Das on 28 November, 2011
1 28.11.2011
C.O. NO.3520 OF 2010 SRI NANDA DULAL BHATTACHARJEE VS.
SRI GOPAL CHANDRA DAS Mr. Siva Prasad Ghosh ........for the petitioner.
Mr. Kaushik Dey ........for the opposite party The present application under Article 227 of the Constitution of India is directed against order No.53 dated 31.7.2010 passed by learned Additional Civil Judge (Junior Division) Sealdah in Misc. Case No.24 of 2007 arising out of Ejectment Case No.319/2004.
Having heard the learned Counsel for both the parties and also after going through the materials-on-record it could be ascertained that the present petitioner by filing ejectment case being No. 319 of 2004 prayed for recovery of khas possession of the suit premises by evicting the opposite party/tenant therefrom. The said suit was decreed ex parte on 26.4.2005, thereafter the opposite party/tenant by filing a Misc. case No.10/2006 under Section 39(14) of the West Bengal Premises Tenancy Act, 1997 prayed for setting aside the ex parte decree. The said Misc. case was ultimately dismissed. Subsequently, the aggrieved opposite party by filing another Misc. case being No.24 of 2007 sought for restoration of the Misc. case No.10 of 2006 and meanwhile the petitioner/decree-holder put the decree into execution and during the pendency of the execution proceeding opposite party took number of adjournments for bringing stay order from superior forum, but ultimately no stay order could be 2 obtained and submitted before the learned Trial Court and accordingly the execution case proceeded and ended on 6.8.2007 by delivery of possession of the suit premises to the decree-holder/petitioner.
In this context, it may be pertinent to point out that during the pendency of the execution proceeding being Ejectment Execution Case No.39/2006 which ended on 6.8.2007 as also the Misc. Case No.24/2007, judgment-debtor /opposite party by filing an application sought for certain amendment for insertion of the circumstances under which the Misc. case No.10 was said to have been dismissed for laches on the part of the opposite party.
It would be explicit from the materials-on-record that the learned Court below upon hearing the learned Counsel of both sides allowed opposite party's amendment application despite disposal of the execution proceeding case No.39/2006.
Being aggrieved by and dissatisfied with the order impugned dated 31.7.2010 the petitioner/decree-holder has come up before this Court praying for setting aside the said order.
Mr. Siva Prasad Ghosh, learned Counsel appearing for the petitioner having drawn this Court's attention to the materials-on-record including the contents of the application under Article 227 of the constitution of India emphatically urges that learned Court below without applying proper judicial mind allowed the amendment application causing prejudice as also miscarriage of justice inasmuch as at the time of allowing the amendment application there was no existence of any execution proceeding or any order of stay and as such 3 the order impugned is not sustainable in the eye and estimation of law and accordingly the same is liable to be set aside.
On the other hand, Mr. Kaushik Dey, learned Counsel appearing for the opposite party referring to the materials-on-record including the contents of the impugned order dated 31.7.2010 as also the ex parte order dated 26.4.2005 as well as some other materials-on-record strongly submits that due to some laches on the part of the conducting Counsel of the opposite party the original case No.319/2004 was decreed ex parte and subsequently the Misc. case for restoration of the said case also stood dismissed. He further submits that learned Court below while passing the impugned order committed no mistake and as such it would be highly prejudicial on the part of his client if the impugned order is set aside.
Having heard the learned Counsel appearing for both the parties and also considering the materials-on-record it could be detected that the original Ejectment Case No.319/2004 was decreed ex parte on 26.4.2005 and thereafter the aggrieved opposite party by filing Misc. Case No.10/2006 under Section 39(14) of the West Bengal Premises Tenancy Act, 1997 prayed for setting aside the said ex parte decree. The said application being Misc. Case No.10/2006 under Section 39(14) of the West Bengal Premises Tenancy Act, 1997 was dismissed. Thereafter, the opposite party by filing Misc. Case No.24 of 2007 prayed for restoration of the earlier Misc. Case No.10/2006 upon setting aside the order of dismissal dated 18.2.2006.
4
Having heard the learned Counsel for both the parties and also after examining the materials-on-record this Court finds reasons to understand and believe that due to sheer laches on the part of the opposite party the original eviction suit was decreed ex parte which ended in execution of the decree on 6.8.2007. True, it is that at the time of allowing the amendment application on 31.7.2010, there was neither existence of any execution proceeding nor there was any order of stay. Evidently the execution proceeding ended by delivering possession of the suit premises to the decree-holder/petitioner on 6.8.2007 and the amendment application was allowed by the Court below on 31.7.1010 i.e. about 3 years after delivery of possession of the suit premises to the petitioner.
Therefore, having considered the circumstances of the case and also regard being had to the submission made on behalf of the respective parties as well as the position of law, this Court is of the view that learned Court below ought not to have allowed the amendment application and thus misdirected himself in passing such impugned order which in the eye and estimation of law is untenable and not sustainable. In this view of the matter, the impugned order stands set aside. Resultantly, the application under Article 227 of the Constitution of India is allowed.
I, however, make no order as to costs.
Let xerox certified copy of this order, if applied for, be given to the learned Counsel appearing for the parties expeditiously.
(Md. Abdul Ghani, J.)