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2008 DIGILAW 468 (CAL)

Mina Bose v. Prabir Das

2008-05-02

TAPAS KUMAR GIRI

body2008
Judgment :- (1.) THIS application under Article 227 of the Constitution of India is directed against an order No. 22 dated 28th June, 2006 passed by the learned Additional Controller at Sealdah in Ejectment Suit No. 78 of 2004. (2.) THE plaintiff/petitioner filed the suit for ejectment against the defendant/ opposite party from the suit premises in the Court of Additional Controller at Sealdah. (3.) IN the said suit, the plaintiff described herself as the landlady of the premises and she became the owner of the suit premises by way of a registered sate deed dated 27. 11. 92. (4.) THE defendant/opposite Party was inducted as tenant in the suit premises and is contesting in the said suit. (5.) THE plaintiff filed her affidavit-in-chief before the learned Trial Court and in the said affidavit-in-chief in paras 3, 5 and 7, she described herself as lessee in the suit premises and she shifted in the rented accommodation. (6.) THE defendant filed the application for expunging the Serial Nos. 3, 5 and 7 of the affidavit-in-chief of the plaintiff as Serial Nos. 3, 5 and 7 were totally different from the plaint. (7.) LEARNED Trial Judge after hearing allowed the application of the defendant and passed the order dated the 28th June, 2006 and expunged the above paras 3, 5 and 7 from the affidavit-in-chief of the plaintiff. (8.) FEELING aggrieved by and dissatisfied with the order allowing the application for expunging the paras 3, 5 and 7 of the affidavit-in-chief of the plaintiff, this application under Article 227 of the Constitution of India has been filed and the same was heard in presence of learned Counsel for the parties. (9.) MRS. Chatterjee, learned Advocate appearing for the petitioner contended that learned Judge failed to appreciate that due to bona fide mistake it was written as owner in the plaint in stead of the lessee but it is admitted that the defendant is the tenant of the suit premises under the plaintiff and as such there was no scope for expunging the relevant paras 3, 5 and 7 of the affidavit-in-chief of the plaintiff. The order dated 28. 06. 2006 is liable to be set aside. In support of her contention learned advocate referred two case laws reported in AIR 1987 Supreme Court 2028 (Smt. Shanti Sharma and Ors. The order dated 28. 06. 2006 is liable to be set aside. In support of her contention learned advocate referred two case laws reported in AIR 1987 Supreme Court 2028 (Smt. Shanti Sharma and Ors. v. Smt. Ved Prabha and Ors.) AIR 1992 supreme Court 1590 (Swadesh Ranjan Sinha v. Haradeb Banerjee). (10.) MR. Shiba Prasad Ghosh, learned Advocate appearing on behalf of the opposite party contended that there is no averment in the plaint that the plaintiff-became the owner of the suit premises by way of lessee. In the plaint it is stated that the plaintiff became the owner of the suit premises by way of purchase deed and as such no evidence can be placed beyond the plaint. (11.) LEARNED Court rightly allowed the same and the present revisional application is liable to be dismissed. (12.) LET me now consider as to how far the learned Trial Judge was justified in allowing the defendants application for expunging the relevant paras 3, 5 and 7 of the affidavit-in-chief of the plaintiff, (13.) IT is needless to mention as per plaint that the plaintiff becomes the owner of the suit premises No. 132/w, Raja Rajendralal Mitra Road, kolkata-85 by a registered sale deed and the defendant was a tenant on the ground floor and due to dearth of accommodation the plaintiff is living with her family at 10/1, Snuff Mill St., Kolkata-55. (14.) IN the affidavit-in-chief of the plaintiff, the plaintiff stated the different version in paras 3, 5 and 7 with reference to the plaint. (15.) IN absence of pleading, evidence, if any, produced by the parties cannot be considered. No party should be permitted to travel beyond its pleading and all necessary and material facts should be pleaded by the party in support of the case set up by it. (16.) IN the present case the plaintiff tried-to give affidavit-in-chief in paras 3, 5 and 7 beyond the plaint. (17.) THE case laws Swadesh Ranjan Sinha (supra) and Smt. Shanti sharma (supra) cited by learned Advocate on behalf of the petitioner are totally different from the fact of the present case. (16.) IN the present case the plaintiff tried-to give affidavit-in-chief in paras 3, 5 and 7 beyond the plaint. (17.) THE case laws Swadesh Ranjan Sinha (supra) and Smt. Shanti sharma (supra) cited by learned Advocate on behalf of the petitioner are totally different from the fact of the present case. (18.) IN the present case, the plaintiff has set up a new fact as stated in paras 3, 5 and 7 of the affidavit-in-chief with reference to the pleading and as such the plaintiff is debarred from leading evidence by way of affidavit-in-chief at the stage of trial. (19.) LEARNED Court below rightly expunged the relevant paras 3, 5 and 7 of the affidavit-in-chief of the plaintiff. (20.) I do not find any illegality in the order dated 28. 6. 2006 passed by learned Additional Controller of Sealdah either to set aside or to modify. (21.) THE revisional application fails and is dismissed on contest. (22.) THE order dated 28. 6. 2006 is confirmed. There is no order of cost.