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2008 DIGILAW 48 (CAL)

Rabin Ghosh v. Nilmoni @ Sachindra Nath Nandy

2008-01-14

BISWANATH SOMADDER

body2008
Judgment (1) NONE appears to contest this application on behalf of the opposite party Nos. 1 to 5. (2) IT appears from record that an interim order was passed earlier initially on 24th July, 2007, inter alia staying all further proceedings of Title suit No. 112 of 2001, pending before the Civil Judge (Junior Division), Second court at Howrah for a period of 12 weeks which was subsequently extended by a latter order dated 15th October, 2007, for a further period of three months. (3) THIS is an application under Article 227 of the Constitution of India against an order dated 22nd December, 2006, being Order No. 43, passed by the learned Civil Judge (Junior Division), 2nd Court at Howrah in Title Suit no. 112 of 2001, taken out by the defendants/petitioners. By the said impugned order, the learned Court below proceeded to reject the application of the defendant, seeking leave to exhibit xerox copies of the petitions, being M. P. Case No. 2599 of 1997 and M. P. Case No. 1727 of 1998, as secondary evidence, in an application filed before the learned Court below under Sections 17 (2) and 2 (A) of the West Bengal Premises Tenancy Act, 1956. While refusing to allow the said application of the defendant to introduce xerox copies of the petitions of the two M. Peases as indicated above, the learned court below inter alia held that in the petition under Sections 17 (2) and 2 (A)of the West Bengal Premises Tenancy Act, 1956, the defendant No. 1, herself had admitted her status as tenant to the suit property. (4) LEARNED Advocate appearing of behalf of the petitioners herein has drawn my attention to the application under Sections 17 (2) and 2 (A) of the west Bengal Premises Tenancy Act, 1956, and has specifically referred to first line of Paragraph-3 of the said application. He submits that it has been categorically stated in the said application that there was/is never any relationship of landlord and tenant by and between the plaintiffs and defendant no. 1. This being the statement made on oath before the learned Court below, he submits that the learned Judge, in the impugned order, could never have observed otherwise. He submits that it has been categorically stated in the said application that there was/is never any relationship of landlord and tenant by and between the plaintiffs and defendant no. 1. This being the statement made on oath before the learned Court below, he submits that the learned Judge, in the impugned order, could never have observed otherwise. Learned Advocate for the petitioners, relying on the said categorical statement made in Paragraph-3 of the application under Sections 17 (2) and 2 (A) of the West Bengal Premises Tenancy Act, 1956, submits that having regard to the facts of the case, the learned Court below ought to have allowed the application filed by the defendant No. 1 for introducing the xerox copies of the petitions, being M. P. Case No. 2599 of 1997 and M. P. Case No. 1727 of 1998, as secondary evidence. (5) AFTER considering the submissions made by the learned Advocate appearing on behalf of the petitioners and after going through the present application and the documents annexed, I am of the opinion that the learned court below erred in fact while observing that in the petition under Sections 17 (2) and 2 (A) of the West Bengal Premises Tenancy Act, 1956, filed by the defendant No. 1, the said defendants status as tenant to the suit property stood admitted, since this is totally contrary to the statement appearing in the first line of Paragraph-3 of the said application. (6) CONSIDERING this aspect of the matter, I direct the learned Court below to allow the petitioners herein to introduce the xerox photo copies of the petitions, being M. P. Case No. 2599 of 1997 and M. P. Case No. 1727 of 1998, as secondary evidence in the suit proceeding. I, however, direct the learned Court below to hear out and dispose of the Title Suit No. 112 of 2001, as expeditiously as possible, preferably within a period of eight months from the date of communication of this order without granting any unnecessary adjournments to the parties. (7) THE present re visional application stands disposed of in terms of the directions given above. Urgent xerox certified copy of this order, if applied for, be given to the parties.