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2008 DIGILAW 229 (CAL)

Unique Scintific Co v. Sumitra Das

2008-02-22

PRABUDDHA SANKAR BANERJEE

body2008
Judgment :- (1.) THIS review application under Section 114 read with Order 47 Rule 1 of C. P. Code is at the instance of the petitioner who was also the petitioner in the Civil Revisional Case No. 240 of 2004. (2.) THE said civil revision as per Article 227 of the Constitution was directed against Order No. 58 dated 29.8.2003 passed by the 2nd Civil judge, Junior Division, Sealdah in connection with T. S. No. 420 of 1996. (3.) THE said suit was instituted by the present opposite party against the present petitioner for its eviction on the ground of default etc. (4.) THE revitionist i. e. the present petitioner appeared before the learned Trial Judge and filed application under Section 17 (2) and 17 (2a)of the West Bengal Premises Tenancy Act. The present petitioner took the specific plea that the rate of rent was Rs 700/- per month inclusive of rs. 100/- as Telephone charges not Rs. 1,170/- as claimed by the plaintiff in that case. (5.) THE landlord contested the said application and the learned Trial judge initially passed order accepting the plea of the tenant/defendant that rate of rent was Rs. 700/-per month. (6.) AGAINST that order the landlord approached the Honble High Court by filing one civil revision which was numbered as C.O. No. 2441 of 2000. The order of the learned Trial Judge was set aside by the Honble Court and the learned Trial Judge was directed to dispose of the application under Section 17 (2), 17 (2a) afresh. (7.) ON the basis of the same, the matter was heard afresh by the learned Trial Judge and by Order No. 58 dated 29.8.2003, the learned trial Judge came to the conclusion that rate of rent was Rs. 1,170/- per month. (8.) AGAINST that order the defendant/tenant preferred revision which was numbered as C.O. No. 240 of 2c04. (9.) BY order dated 9th January, 2007, the said revision was dismissed. (10) AGAINST the said order, the instant review petition has been preferred by the petitioner who is defendant/tenant before the Court below. (11.) DR. Indrajit Mondal, learned Counsel for the present petitioner prayed for reviewing the order mainlypn the ground that there was mistake on the part of the Court in holding that only one audited report for the year 1994-95 was produced before the Court below. Dr. (11.) DR. Indrajit Mondal, learned Counsel for the present petitioner prayed for reviewing the order mainlypn the ground that there was mistake on the part of the Court in holding that only one audited report for the year 1994-95 was produced before the Court below. Dr. Mondal in course of his argument contended that in fact, the present petitioner filed audited reports also for period ending on 31st March, 1995 and 31st March, 1996. (12.) ON the basis of the same Dr. Mondal contended that there was "apparent mistake" on the part of this Court as the Court did not consider the other two audited reports for the year ending on 31.3.1995 and 31.3.1996 Dr. Mondal in course of his argument contended that in the said three reports it is apparent that the rent@ Rs. 700/-per month has been mentioned and the same has been duly accepted by the auditors who held audit over the accounts for those period. (13.) DR. Mondal further contended that the Court below relied upon the counter foil of the alleged rent receipt and on the basis of the same he contended that the Court ignored the fact that in the eye of law, the counter foil is not admissible and as such the order by which the revision was dismissed is required to be recalled/reviewed. (14.) THE said pleas were strongly opposed by Mr. Jiban Ratan chatterjee, learned Senior Counsel for the opposite party who contended that before entertaining any application to review any order passed by this court it is to be proved beyond any doubt that there was "apparent mistake". (15.) HE further contended that at the time of hearing of the civil revision, Dr. Mondal also took the same plea regarding admissibility of the counter foil and the Court after due consideration of the same and also on the basis of cases referred by Dr. Mondal decided the said point in favour of the opposite party/landlord. (16.) I have gone through the order dated 9th January, 2007. In the said judgment all the pleas which were raised by learned Counsel for the parties were duly discussed and thereafter the revisional application was dismissed. Mondal decided the said point in favour of the opposite party/landlord. (16.) I have gone through the order dated 9th January, 2007. In the said judgment all the pleas which were raised by learned Counsel for the parties were duly discussed and thereafter the revisional application was dismissed. (17.) IT is true that in page 7 of the judgment it has been mentioned "it is really strange that the defendant produced only one audited report for the year 1994-95" However, this Court gave reasons why the entries in the said audited report could not be considered in the absence of books of accounts (18.) IT is to be further stated that Mr. Jiban Ratan Chatterjee, learned counsel for the opposite party further contended that neither the auditor nor the books of accounts were produced before the Court below. As such, mr. Jiban Ratan Chatterjee contended that the learned trial Judge did not commit any mistake in disbelieving the said audited reports. (19.) I have already stated that before allowing any review application, the Court must be satisfied that there was "apparent mistake" in passing the order in question in this case though this Court wrongly stated that only one audited report for the year 1994-95 was produced in fact, two other reports for the period 1995-96 and 1996-97 were produced. However, the Court in its order dated 9th January, 2007 gave the reasons why the said audited report could not be relied upon. As one of the report was duly considered by the Court while disposing of the civil revision, I do not find any reason to review the said order as the said mistake, under my opinion will not come under the purview of "apparent mistake" which will go to the root of the order. (20.) AS such, there is no merit in this revisional application and the same is dismissed but without any cost. (21.) INTERIM order, if any, be vacated. (22.) THE learned Trial Judge is directed to dispose of the suit as expeditiously as possible Urgent xerox certified copy of this order be given to either of the parties within 10 days from the date of this order on proper application.