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2008 DIGILAW 780 (CAL)

Kiran Bala Roy v. Bejoy Kumar Ghosh

2008-08-01

Prasenjit Mandal

body2008
JUDGMENT: 1. THIS application is directed against the order no. 77 dated 22. 02. 2000 passed by the learned Civil Judge (Junior Division), First Court, Sealdah in Title Suit No. 486 of 1988 whereby he has rejected the petition for amendment of the petition under Section 17 (2) and (2a) (b) of the West Bengal Premises tenancy Act, 1956, filed by the defendant. 2. THE respondents/plaintiffs filed the Title Suit No. 486 of 1988 for a decree of khas possession and eviction and for other reliefs. In that suit, the applicants appeared and filed a petition under Section 17 (2) and (2a) (b) of the West Bengal Premises tenancy Act, 1956. During pendency of the hearing of that application, on 02. 04. 1990 the respondents/plaintiffs dispossessed the plaintiff from the suit premises. In that premises he has prayed for amendment of the application under Section 17 (2) and (2a) (b) of the West Bengal Premises Tenancy Act, 1956. Upon consideration of the materials, learned Civil Judge has dismissed the application for amendment of the petition. So the petitioners/defendants have preferred this application. 3. HAVING considered the submission of the learned Advocates of both the sides and on perusal of the record, I find that admittedly the respondents/plaintiffs have filed the suit for recovery of possession. The petitioners/defendants appeared in the suit and filed the application under Section 17 (2) (2a) (b) of the West Bengal Premises Tenancy Act, 1956 and that petition was pending. The petitioner/defendants have alleged that during pendency of the hearing of the petition, on 02. 04. 1990 the respondents/plaintiffs dispossessed them from the premises in suit. This being the special defence of the defendant, the question of payment of arrears of rent as well as current rent are very much involved in the matter of disposal of the application under Section 17 (2) and (2a) (b) of the West Bengal Premises Tenancy act, 1956. The learned Civil Judge has dismissed the application for amendment on the ground that the proposed amendment lays down many facts relating to possession, dispossession, restoration of possession, etc. If it is so, upon due consideration of the submissions of the learned Advocates of both sides, learned Civil judge (Junior Division) could have directed the petitioners/defendants to suitably amend the application for amendment to suit the situation; otherwise it will be difficult for disposal of the said petition under the Act. If it is so, upon due consideration of the submissions of the learned Advocates of both sides, learned Civil judge (Junior Division) could have directed the petitioners/defendants to suitably amend the application for amendment to suit the situation; otherwise it will be difficult for disposal of the said petition under the Act. This being the position, I hold that the learned Civil Judge (Junior Division) has committed a wrong in the disposal of the application for amendment and the impugned order requires to be set aside. 4. THEREFORE, the impugned order is set aside giving a further direction upon the learned Civil Judge (Junior Division) to hear the matter afresh and to pass the appropriate orders thereon. The application is disposed of with such orders without costs. As the matter is pending for a long time, the learned Civil judge (Junior Division) is directed to dispose of the said application within 30 days from the date of communication of the order. It is recorded that the learned Civil Judge (Junior division) shall not be influenced in any way by my above observations. He shall decide the petition for amendment independently on the basis of materials placed before him and then to pass the appropriate order as he deems fit and proper.