Tapan Bhattacharjee v. State — 1983 DIGILAW 77 (CAL)

JUDGMENT 1. THIS petition under section 115 C. P. C. is directed Against Order dated 14.12.82 passed by the Additional District Judge, darjeeling, in Misc. Appeal No. 8 of 1982. affirming order No. 117 dated 23.8.32 passed by the Subordinate Judge, Darjeeling, in Misc. Case No. 32 of 1982. The, backdrop of the said orders may be stated as follows :- 2. ON 7. 8. 67 Sm. Snehalata Devi widow of P. K. Chatterjee, since deceased filed ;an ejectment suit being O. C. Suit no. 28 of 1967 against one Kalika Prasad Gupta, the father of Madan Mohan gupta and Others, for recovery of possession of the suit premises. During the pendency of the said suit the said Kalika Prasad died. On 14.9.68 the said suit was - decreed by the Trial court. Madan Mohan gupta and others being the heirs of the said Kalika Prasad Gupta filed an appeal being O. C. Appeal No. 14 of 1968 in the Court of District Judge at Darjeeling. On 31.10.73 O. C. Appeal No. 14 of 1968 was heard and dismissed. On 8.2.74 madam Mohan Gupta and another filed a second Appeal being S. A. No. 465 of 1974 in this Hon'ble Court. On 1.1.77 Sumbhuram Berelia, the opposite party herein, purchased the suit property from sm. Snehalata Devi for valuable consideration. On 8.8.79 Sambhuram Berelia made an application for addition of party in this Court in She said appeal for the atoresaid reason and the same was allowed by N. C. Mukherji, J. On 3.2.81 s. A. 465 of 1974 was heard by Banerjee, j. and the same was dismissed after hearing the parties at length. On a prayer being made on behalf of the appellants this Court was pleased to grant time till 31st December, 1981 to vacate the suit premises on condition that the appellants would go on paying the rent of Rs. 50/- per month for use and occupation of the premises first of such payment was directed to be made on February 15, 1981 being the rent for the month of February 1981 and thereafter would go on paying the rent within the 15th of each succeeding month in advance. All the payments were directed to be made in the Trial Court. His Lordship directed that in default of payment the decree would become executable at once. All the payments were directed to be made in the Trial Court. His Lordship directed that in default of payment the decree would become executable at once. In May 1981 since Madan mohan Gupta and Another, the said Appellants failed and neglected to make payment of rent as directed by this Court. The said Sambhuram Berelia started execution proceeding being O. C. Execution Case No. 34 of 1973. On 22.5.81 tapan Bhattacharya filed a suit being O. C: Suit No. 31 of 1981 in the Court of the Sub-ordinate Judge, Darjeeling, inter alia for a declaration that he was not bound by the decree in execution in o. C. Execution Case No. 34 of 1973, he could not be evicted thereby and for permanent injunction. The said Tapan bhattacharya also filed an application for ad-interim injunction. On 17.10.81 after hearing the parties the learned subordinate Judge was pleased to dismiss the said application for injunction, dt 9.11.81, being aggrieved by and dissatisfied with the said order the said tapan Bhattacharya preferred an appeal being Misc. Appeal No. 9 of 1981 in the court of Judge, Darjeeling. On 21.12.81 after hearing the parties learned Additional District judge Darjeeling, dismissed the said appeal with costs. On 17.1.82 an application under Section 115 of the C. P. C. was filed in the Court against the said order of dismissal of appeal by the learned Additional district Judge, Darjeeling. On 1.4.82 the said revisional application being Civil order No. 865 of 1982 was called on for hearing before the Hon'ble Mr. Justice m. M. Dutta when the learned Advocate, for the said Tapan Bhattacharya did not press the said revisional application before His Lordship, but only wanted some time so as to enable the said Tapan bhattacharya to vacate the suit premises. His Lordship was pleased to dismiss the said application, but granted two months time to vacate and deliver up vacant and peaceful possession of the suit premises to the opposite party Sambhuram Berelia. His Lordship was pleased to dismiss the said application, but granted two months time to vacate and deliver up vacant and peaceful possession of the suit premises to the opposite party Sambhuram Berelia. His Lordship directed that the said Sambhuram Berelia would not execute the decree for the said period of 2 months, but, if the said Tapan bhattacharya does not deliver up possession of the suit premises within the period, as directed above, the said opposite party Sambhuram Berelia would be entitled to go on with the execution of the decree for recovery of possession of the suit premises from the petitioner. On 2.6.82 Tapan Bhattacharya filed an objection in the said execution proceeding being O. C. Execution Case No. 34 of 1973, and the said application was registered as Misc. Case No. 32 of 1982 under Or, XXI R. 101 read with S 151 and 47 CPC. On 22.6.82 the said suit being o. C. suit No. 3i of 1981 was dismissed for default. On 23.8.82 after hearing the parties the learned Subordinate Judge, darjeeling dismissed the said objection being Misc. Case No. 32 of 1982. On 27.8.82 the said Tapan Bhattacharya filed an appeal being Misc. Appeal No. 8 of 1982 in the Court of the learned District Judge, Darjeeling. On 14.12.82 after hearing the parties the learned Additional District judge, Darjeeling, Was pleased to dismiss the said appeal being misc. Appeal No. 8 of 1982 with costs holding inter alia that the said appeal had no merit. 3. MR. Tarun Chatterjee, the learned advocate for the petitioner Tapan Bhattacharyya contends that in view of the express provisions of Or. 21 Rule 101 C. P. C. requiring all questions relating to right title or interest in the property arising between the. parties to be determined by the Court dealing with the application and not by a separate suit, the learned courts below were wrong in holding that in view of the dismissal of o. C. Suit No. 31 of 1981 the petition under consideration was misconceived and was liable to be dismissed. Mr. Chatterjee contends that the suit itself was misconceived and for that reason the petitioner himself allowed the suit to be dismissed for default and in view of the provisions noted above it was incumbent for the courts below to entertain the petition and dispose of the petition on merits. Mr. Mr. Chatterjee contends that the suit itself was misconceived and for that reason the petitioner himself allowed the suit to be dismissed for default and in view of the provisions noted above it was incumbent for the courts below to entertain the petition and dispose of the petition on merits. Mr. Chatterjee also submits that soon after the present petition was filed the petitioner was dispossessed from the disputed property. 4. THE contentions raised by Mr. Chatterjee do not bear scrutiny. In paragraph 5 of the petition filed in this Court the petitioner has stated "petitioner is in possession of the suit premises under the tenant Madan Mohan Gupta and others". The point to note is that the petitioner asserts that he is in possession and he does not say that he claimed title to the disputed property or right 10 possession therein independently of the tenant Madan Mohan Gupta, against whom the decree for eviction was obtained. If the petitioner was in possession of the disputed property on 23. 8. 82 giving rise to Misc. Case No. 32 of 1982, the petition was legally not maintainable. Rule 99 (1) of Order XXI provides that "where any person other than a judgment debtor is dispossessed of immovable property by the holder of a decree for possession of such property he may make an application to the Court complaining of such dispossession". The plain reading of the above rule makes it clear that in order to be entitled to file a petition under the rule the petitioner was required to be dispossessed from the disputed property first. Before being dispossessed he cannot file a petition under the rule. Confronted with the above position Mr. Chatterjee shows papers to indicate that the decree holder himself filed a petition complaining of resistance to execution of the decree contemplated under Order 21 Rule 97, and against that petition the present petitioner as a resistor put in objection which was wrongly treated as a petition under Or. 21 rule 99 and 101 C. P. C. filed by the present petitioner. He contends that the proceedings were in substance under Order 21 Rule 97 C. P. C. This contention of Mr. Chatterjee does not prevail with me, because in paragraph 16 of the petition filed in this court it has been stated without any qualification that the petitioner filed an application under or. He contends that the proceedings were in substance under Order 21 Rule 97 C. P. C. This contention of Mr. Chatterjee does not prevail with me, because in paragraph 16 of the petition filed in this court it has been stated without any qualification that the petitioner filed an application under or. 21 Rule 101 and 99 read with section 47 and 151 C. P. C. In fact the heading of the petition actually filed in the court below and prayer made therein support the above statement, So the conclusion is inescapable that while the petitioner was in possession of the disputed property he filed the petition giving rise to the Misc. Case and Appeal noted above. The conclusion is therefore inescapable that the petition was not maintainable and for that reason liable to be dismissed. 5. PROVISIONS of Order 21 Rule 104 also have an important bearing on the point under consideration. The said Rule provides. "every order made under Rule 101 or Rule 103 shall be subject to the result of the suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under Rule 101 or Rule 103 is made has sought to establish, right which he claims to the present possession of the property". Now there may be a case when without waiting for being dispossessed a person in possession of a disputed property independently of the judgment debtor brings a suit against the decree holder for a declaration of his right to remain in the disputed property and to restrain the decree holder from executing, the decree. In such a suit certainly the right title and interest of the person filing the suit in the disputed property will be the subject matter for decision. Rule 104 lays down that if such a suit was pending at the date, of institution of the proceedings in which order under Rule 99 read with 101 was passed, the order will be subject to the result of the suit pending. In the present case the application, under Order 21 rules 99 and 101 C. P. C. was filed on 2. 6. 82 and on that date the suit filed by the petitioner being O. C. Suit No. 31 of 1981 having been instituted on 22.5.81 was pending. In the present case the application, under Order 21 rules 99 and 101 C. P. C. was filed on 2. 6. 82 and on that date the suit filed by the petitioner being O. C. Suit No. 31 of 1981 having been instituted on 22.5.81 was pending. Such a suit squarely comes within the provisions of Or. 21 rule 104 C. P. C Code. The result of the suit was that it was dismissed on default on 22.6.82. In view of the above circumstances, the petition became subject to the result of the suit that is to say the consideration of the petition became unnecessary and barred. 6. IN that view of the matter I reach the conclusion that the learned Courts below were right in passing the orders impugned. Considering all these the petition under consideration is dismissed on contest with costs. Hearing fee 5 G. M. S.