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2008 DIGILAW 648 (CAL)

Joydeb Saw v. Bejoy Krishna Maity

2008-07-03

TAPAS KUMAR GIRI

body2008
Judgment : TAPAS KUMAR GIRI, J. (1.) AN order dated 10. 3. 2006 for rejection of an application for additional written statement in Title Appeal No. 8 of 1996 passed by the Learned Civil Judge (Senior division) at Ghatal is now under challenge before this Court by way of an application under Article 227 of the Constitution of India. (2.) THE case set up by the petitioner/defendant is that the plaintiffs/opposite parties filed a suit being No. 71 of 1993 for eviction against the defendant/petitioner before the Learned Civil Judge (Junior Division) at Ghatal. The defendant filed the written statement. (3.) THE Learned Civil Judge (Junior Division) passed the judgment and decree for eviction on 20. 01. 1996. The defendant preferred an appeal being Title Appeal No. 8 of 1996 and the Learned Appellate Court below remanded the case to the Learned civil Judge (Junior Division) on 6. 5. 1997 after setting aside the judgment and decree of the Learned Civil Judge (Junior Division). (4.) THE plaintiff preferred an appeal (F. M. A. 1408 of 1997) before this Court. The learned Judge of this Court set aside the judgment of the Learned Appellate Court below and sent back on remand to the Learned Lower Appellate Court to finalize the issue as there was the existence of the agreement. (5.) THE petitioner made an application under Order 8 Rule 9 of the Code of Civil procedure for additional written statement including an application for leave to present the same, before the Learned Appellate Court below. (6.) THE Learned Civil Judge (Senior Division) Ghatal, after hearing of both sides, rejected the said application on 10. 3. 2006. (7.) BEING aggrieved by and dissatisfied with the said order dated 10. 3. 2006 passed by the Learned Civil Judge (Senior Division) Ghatal, the petition has preferred this application under Article 227 of the Constitution of India for setting aside the order dated 10. 3. 2006 and to allow the said application for additional written statement. (8.) MR. Bhudeb Chatterjee the Learned Advocate on behalf of the petitioner contended that the Honble High Court directed on remand the case to decide the issue as there was the existence of the agreement. The said additional fact was stated by way of the additional written statement. The Learned Civil Judge (Senior division) without considering the same rejected the said additional written statement and it is without jurisdiction. The said additional fact was stated by way of the additional written statement. The Learned Civil Judge (Senior division) without considering the same rejected the said additional written statement and it is without jurisdiction. (9.) MR. Chatterjee, the Learned advocate contended that there was an agreement in between the parties and that issue should be decided on the basis of the existence of the agreement. The said fact is not the new fact and in the written statement the defendant urged the existence of the said agreement. The Learned Civil Judge (Senior Division) without considering the same rejected it which is without jurisdiction. In view of that, the order dated 10. 3. 2006 passed by the Learned Civil judge (Senior Division) is liable to be set aside. (10.) LEARNED Advocate cited a case law reported in 2007 SAR (Civil)-431 (Usha balashaheb Swami and Ors V. Kiran Appase Swami and Ors.) (11.) MR. Abhijit Banerjee, the Learned advocate on behalf of the opposite party contended that without the leave of the Court the application under Order 8 Rule 9 of the Code of Civil Procedure can not be entertained. Moreover the Learned Court below previously rejected the application of the defendant under Section 111 (h) of the T. P. Act. The defendant did not take any steps in the appropriate Court against the order of rejection of that application. As such, there is no illegality in the order dated 10. 3. 2006 of the Learned Civil Judge (Senior Division) Ghatal either to set aside or to modify the same on the basis of the direction of the High court. The present revisional application is liable to be dismissed. (12.) THE jurisdiction conferred under Article 227 of the Constitution of India upon this Court is not of an appellate one but it is a combination of supervisory and equitable jurisdiction and to do justice and to prevent the miscarriage of justice. (13.) BEFORE considering the merits of the present revisional application it is necessary to mention the relevant portion of the order of the High Court on which the learned Civil Judge (Senior Division) dismissed the application under Order 8 Rule 9 of the Code of Civil Procedure. (14.) THE relevant portion of the order of the High Court states " "according to me, the existence of the agreement is the prime consideration in the facts and circumstances of the case. (14.) THE relevant portion of the order of the High Court states " "according to me, the existence of the agreement is the prime consideration in the facts and circumstances of the case. Therefore, the remand order is bad and has to be set aside. Accordingly the same is set aside. The Lower Appellate Court is directed to give an independent hearing and finalize the issue""". " (15.) AFTER careful reading of the relevant order dated 10. 3. 2006 as well as the application for additional written statement under Order 8 Rule 9, the petitioner filed the application for additional written statement to show the existence of the agreement in between the parties for realization rent of the premises. The said ground by way of additional written statement was filed to bring the fact of an agreement in between the petitioner/defendant and the predecessor of the plaintiff. The said fact should be decided for proper adjudication of the case. (16.) IT is admitted fact that the petitioner/defendant previously filed an application under Section 114 of the T. P. Act for seeking protection from eviction on payment of arrear of rents. But the said application was rejected and the defendant did not take any steps before the higher Court. (17.) THE present suit is filed by the plaintiffs for eviction of the defendant due to defaulter of payment of rent and the plaintiff issued the notice under Section 106 of the T. P. Act. The present application for additional written statement is not the new fact of the petitioner. However, when the application of the defendant/petitioner was rejected by the Learned Court below on 30. 4. 1997, then the defendant should take steps for remedy from the Higher Court. The defendant did not take any steps for remedy. (18.) THE High Court observed and gave a direction to the First Appellate Court to dispose of the points in respect of existence of agreement and appointment of expert to determine the genuinity of the signature of the predecessor of the plaintiffs. (19.) THE additional written statement under Order 8 Rule 9 of the C. P. C. that was rejected by the Learned Court below has brought such fact and the said application was filed at a belated stage. However, the said application was filed on the date of hearing of the appeal. (19.) THE additional written statement under Order 8 Rule 9 of the C. P. C. that was rejected by the Learned Court below has brought such fact and the said application was filed at a belated stage. However, the said application was filed on the date of hearing of the appeal. (20.) THERE was the specific direction of this Court that the existence of the agreement is the prime consideration in the facts and circumstances of this case. As such the application of the defendant for additional written statement be allowed only to proper adjudication of the case. Mere belated filing of the said application is not the good ground for rejecting the same. The revisional application succeeds. (21.) THE order dated 10. 3. 2006 passed by the Learned Civil Judge (Senior division) Ghatal is set aside. The application for additional written statement dated 17. 2. 06 is allowed on payment of cost of Rs. 1000/-(one thousand) to the plaintiffs within one month from the date of communication of the order to the Learned (22.) APPELLATE Court below. In default the said application for additional written statement is dismissed. (23.) THE plaintiff /opposite parties are given an opportunity to take necessary steps, if any, and thereafter to proceed with the hearing of the appeal in accordance with law. (24.) THE appeal is pending since a long time. The Learned Appellate Court below is directed to dispose of the appeal at an early date without giving any adjournment. (25.) THE revision C. O. No. 1078 of 2006 is disposed of.