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2008 DIGILAW 73 (CAL)

Krishna Gupta v. Kalyani Chatterjee

2008-01-18

SADHAN KUMAR GUPTA

body2008
Judgment Sadhan Kumar Gupta, J. This revisional application has been preferred under Article 227 of the Constitution of India challenging the order no. 104 dated 06/8/2007 passed by the ld. Judge, Small Causes Court, Sealdah in Title Suit no. 152 of 1999. Case of the defendant/petitioner is that the plaintiffs filed the suit against him praying for his eviction from the suit property on various grounds. The defendant/petitioner was contesting the said suit by filing written statement. Subsequently, the defendant/petitioner filed a petition on 23/11/2006 under Order VII Rule 11 of the Code of Civil Procedure praying for rejection of the plaint on the ground that the suit, as filed, was not maintainable as the plaintiffs served two notices both under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 dated 12/5/1997 and 10/11/1998 respectively. In the said petition, the defendant/petitioner claimed that the suit, as filed on the basis of the second notice was not at all maintainable and as such, the plaint was liable to be rejected. Said petition was contested by the plaintiffs. In their written objection, the plaintiffs claimed that there was no merit in the application filed under Order VII Rule 11 of the Code of Civil Procedure and as such, they prayed for dismissal of the said application. Ld. Court below, after hearing both the parties, was pleased to hold that the dispute, as raised by the defendant in the said application, was a mixed question of fact and law and it could not be decided without recording of evidence. On that ground the ld. court was pleased to reject such petition. Being aggrieved and dissatisfied with the said order of rejection, this revisional application has been preferred. At the very outset, the ld. Advocate for the defendant/petitioner submitted that in effect the petition should have been considered as per the provisions of Order XIV Rule 2 of the Code of Civil Procedure. According to him, this Court can take into consideration the said petition to be a petition under Order XIV Rule 2 of the C.P.C. as per the substance, as made out in the said application. According to the ld. Advocate for the defendant/petitioner as per Order XIV Rule 2 of the C.P.C. when it has been alleged that the suit itself is not maintainable, then the court can pass an appropriate order dismissing the suit on preliminary ground. According to the ld. Advocate for the defendant/petitioner as per Order XIV Rule 2 of the C.P.C. when it has been alleged that the suit itself is not maintainable, then the court can pass an appropriate order dismissing the suit on preliminary ground. In order to substantiate his contention, Mr. Banerjee, ld. senior advocate for the defendant/petitioner, cited decision reported in 2007 (2) CLJ (Cal) 633 (Smt. Subhra Sinha Roy vs. Iman Kalyan Dey). It appears that the said decision was passed on the basis of a petition filed under Order XIV Rule 2 of the C.P.C. I have already pointed out that no such application was filed before the court urging it to dismiss the suit on preliminary issue. So, in my considered opinion, this decision is not at all applicable so far this hearing is concerned. It is the admitted position that the ld. court below dismissed the petition praying for rejection of the plaint on the ground that the eviction suit, as filed on the basis of the second notice was not maintainable. Ld. Trial Judge was of the opinion that this question is a mixed question of fact and law and as such, it could not be decided without considering the evidence of the parties. I fully agree with the view of the ld. Trial Judge. It appears from the plaint that there is no whisper about the service of any first notice, as alleged. If the contention of the defendant/tenant is correct that an earlier notice for eviction was served upon him, then the question may crop up as to whether the said earlier notice was waived or not. In order to come to a conclusion in this respect, it is certainly necessary that the evidence of the parties should be taken into consideration. The ld. court below rightly observed that in absence of the evidence it was not possible for him to come to a definite decision in this respect. The view, as expressed by the ld. court below appears to be perfectly justified and he was well within his jurisdiction to pass such an order. As such, I am of opinion that the impugned order, as passed by the court below should not be interfered with and the ld. court below should be directed to proceed with the suit in accordance with law as expeditiously as possible. Ld. As such, I am of opinion that the impugned order, as passed by the court below should not be interfered with and the ld. court below should be directed to proceed with the suit in accordance with law as expeditiously as possible. Ld. Advocate for the defendant/petitioner further argued that his client may be given opportunity to raise this point as a preliminary issue before the evidence is taken. But this contention of the ld. advocate for the petitioner is not at all acceptable simply on the ground that the finding of the ld. Trial Court that this question is required to be decided on the basis of the evidence of the parties, has been affirmed. As such, question of allowing the defendant/petitioner to raise this point afresh before the court below prior to the recording of evidence does not arise at all. Therefore, from my above discussion, I am of opinion that the revisional application is devoid of any merit and the impugned order, as passed by the ld. Court below should be affirmed. In the result, the revisional application is dismissed on contest but without cost.